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[2008] FCA 1446
Federal Court of Australia
2008-09-23
Finn J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The orders I am about to make in this proceeding (QUD 6040 of 2001) have been foreshadowed for some time. Put shortly and inexactly the proceeding itself is a native title sea claim over what for present purposes can be described as waters in and adjacent to the Torres Strait. Recently three separate native title applications have been filed. Two of these, which for convenience I will describe as the Kaurareg No 1 claim (QUD 266 of 2008) and the Kaurareg No 2 claim (QUD 267 of 2008), have common applicants and claim groups. The third of these, the Gudang claim (QUD 269 of 2008), has a different claim group. 2 The Kaurareg No 1 claim and the Gudang claim overlap in small part. More importantly for present purposes both have significant overlaps with the claim area in the principal proceedings. 3 Section 67 of the Native Title Act 1993 (Cth) deals with overlapping native title determination applications. It provides: (1) If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding. (2) Without limiting subsection (1), the order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings.
4 The course I intend to take in relation to QUD 6040 of 2001 is to follow the course mandated by s 67(2) and to split it into two parts, Sea Claim Part A and Sea Claim Part B. Part A relates to the area in QUD 6040 of 2001 which is unaffected by the overlapping Kaurareg No 1 and Gudang applications. Part B will contain that portion of QUD 6040 of 2001 affected by the overlapping applications. 5 The recent filings have been anticipated for some time now. For this reason QUD 6040 of 2001 has been timetabled for hearing commencing 29 September 2008 in anticipation of the orders I now make. Both the Kaurareg people and several members of the Gudang people are respondents in the principal proceedings. They were asserting native title rights defensively but only in what will now be Part B of the principal proceeding. It is appropriate that I give them leave respectively to withdraw from the Part A proceeding. 6 The Part A proceeding is presently ready for trial. The Part B proceeding is not, given that, to the extent of the overlap with the other claims, it must be dealt with together with them. They are not nearly ready for hearing. 7 While the applicants in QUD 6040 of 2001 do not consent to the orders proposed, neither do they oppose them. Both the Kaurareg No 1 claimants and the Gudang claimants have proposed "consent orders" to which almost all of the respondents in the principal proceeding have consented. The orders proposed are in substance what I have foreshadowed I would make to deal with the anticipated - now realised - overlapping applications. 8 As the orders proposed by the Cape York Land Council encompass orders in relation to the Kaurareg No 1 claim and the Gudang claim and other necessary consequential orders, I will make orders in QUD 6040 of 2001 in the terms proposed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Associate: Dated: 24 September 2008 Counsel for the Applicants: Mr R Blowes SC Solicitor for the Applicants: Torres Strait Regional Authority
Counsel for the State of Queensland: Mr G Hiley QC Solicitor for the State of Queensland: Queensland Crown Solicitor
Counsel for the Kaurareg People: Mr V Hughston SC Solicitor for the Kaurareg People: Chalk & Fitzgerald
Counsel for the Gudang Yadhaykenu People: Ms S Phillips Solicitor for the Gudang Yadhaykenu People: Cape York Land Council
Akiba on behalf of the Torres Strait Regional Seas Claim People
State of Queensland