Barambah on behalf of the Turrbal People v State of Queensland

JAGOT J: 1 This is an application for an extension of time to appeal against orders made by Jessup J on 27 January and 16 March 2015, dismissing an application for a determination of native title, in favour of the Turrbal People (see Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15 and Sandy on behalf of the Yugara People v State of Queensland (No 3) [2015] FCA 210). The State of Queensland, the respondent to the application for native title, does not oppose the extension of time on the basis set out in written submissions dated 1 August 2016. However, the application for the extension of time is opposed by another claimant group which sought a determination of native title in its favour in the same proceedings before Jessup J, being the Yugara People. 2 The Yugara People opposed the grant of the extension of time for the reasons set out in their written submissions dated 28 July 2016 and as further explained in oral submissions, helpfully made today by Mr Gregory of counsel. 3 I should record that the application for extension of time is unusual, in that if the Turrbal People had been the only party seeking to challenge the orders made by Jessup J, then it is possible that I would have accepted submissions to the effect which Mr Gregory has made that the reasons for the delay in seeking to appeal and the merits or likely merits of the proposed appeal are insufficient foundations to warrant the grant of an extension of time. 4 However, the circumstances of the present case, as I have said, are unusual. This is because Jessup J was dealing with competing native title claims to the same land and, in his decision, ultimately rejected the claims of both the Turrbal People and the Yugara People. 5 The Yugara People, for their part, filed an appeal within time against Jessup J's orders (proceedings QUD139/2015). This appeal was amended by leave granted on 28 July 2015. 6 The appeal of the Yugara People stood in abeyance for many months because, amongst other things, it raised an issue about the power of the Court to make what is called a negative determination; that is, a determination that native title does not exist in relation to an area of land in response to a claimant application. This issue was raised in another matter which had been referred to a bench of five judges because it involved a challenge to an earlier Full Court decision by a bench of three judges to the effect that there was power to make a negative determination in respect of a claimant application (see Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108 (Wyman)). In CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67 (CG) the Full Court, comprising five judges, confirmed that the decision in Wyman in respect of this issue was correct. Until that issue was determined, the appeal of the Yugara People could not proceed. In the interim, on 3 December 2015, the application for an extension of time on behalf of the Turrbal People was filed, some eight months after the expiry of the appeal period. 7 The critical factor in the present case, justifying the extension of time, is the existence of the appeal of the Yugara People - an appeal brought within time and which will proceed to challenge the reasoning of Jessup J, but which has been delayed not by reason of any conduct of the Turrbal People but because of the need for the negative determination issue to be resolved in CG. As a result, what might be described the outcome of the hearing before Jessup J is to be put in issue irrespective of the conduct of the Turrbal People and their delay in commencing appeal proceedings. Importantly, the appeal of the Yugara People challenges both procedural and substantive aspects of the reasoning of Jessup J and seeks orders that native title exists throughout the claim area and that the people holding native title are the Yugara People. By its very nature, the appeal of the Yugara People involves and affects the asserted interests of the Turrbal People. In particular, if any part of the appeal of the Yugara People is upheld, then a question will inevitably arise as to the impact of that decision on Jessup J's findings about the Turrbal People, whose claim overlaps that of the Yugara People. It is this circumstance which leads me to the view that, notwithstanding whatever might be said about the reasons for the delay by the Turrbal People in seeking to appeal and the merits of their appeal, the interests of justice demand that the Turrbal people also have the opportunity to appeal against the decision of Justice Jessup. The State of Queensland correctly, in my view, accepts that there is a relationship between the appeal of the Yugara People and the position of the Turrbal People, in the sense that the interests of the Turrbal People are inevitably affected by the appeal of the Yugara People. . In short, if the conclusions of Jessup J are to be challenged by the Yugara People then the interests of justice demand that the other claimant group to the same land, the Turrbal People, also have the opportunity to challenge those conclusions. 8 This said, I should also note that the Turrbal People have provided an explanation of the delay which, although misconceived in some respects, is not particularly surprising. It is apparent that Ms Barambah, who is not a lawyer, was not aware that in the ordinary course, and leaving aside unreasonable conduct, no orders for costs are generally made in native title proceedings. She did not wish to institute an appeal until satisfied in her own mind about the merits, and was concerned about exposure to a costs order. In addition, as the State has accepted, it was not entirely unreasonable for Ms Barambah to decide to await the outcome in Wyman which she perceived to be relevant to an appeal on behalf of the Turrbal People. Further, the eight month delay in filing and serving the application for the extension of time, while it may seem lengthy, is also partly explained by the fact that the Turrbal People experienced some delay in obtaining a copy of the notice of appeal of the Yugara People. 9 While I understand the concern of the Yugara People, that they not be placed in a position of expending unnecessary time and cost in defending the appeal by the Turrbal People, as I have said, the relationship between the interests of the Yugara people and the interests of the Turrbal People and the fact that the appeal of the Yugara People will inevitably affect the interests of the Turrbal People means, in my view, that justice requires that the Turrbal People also have the opportunity to present their case on appeal. 10 I accept, however, that it is critical that the Turrbal People, who have indicated a wish to rely on fresh evidence (which would require leave of the Full Court hearing the matter) should ensure that the proposed fresh evidence is filed and served, as the State has requested, by no later than 29 August 2016. This should ensure that the Yugara People are on clear notice of the issues which the Turrbal People wish to raise. Accordingly, I propose to make directions to ensure that this occurs, and also that the notice of appeal reflects what the Turrbal People have agreed are the issues they wish to raise (being those as set out in a reformulation which the State proposed, expressly agreed to by Ms Barambah as accurate). I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.