Bonner on behalf of the Jagera Yagara Gurrangnam v State of Queensland

CONTENTIONS 9 It should first be noted that the parties have agreed that this matter ought to be determined on the papers. 10 In its written submissions, the JYG Applicant began by emphasising the circumstances in which the present application is being made, namely "its inability, in light of having twice failed the registration test, to amend the [application] in a way that would be likely to secure registration in the future". Against that background, the JYG Applicant contended that the present application was being made at an early stage in the proceeding; that no substantive orders to progress the proceeding have been made to date; and that no injustice will accrue to the State of Queensland or to any other respondent party in the event that the application is discontinued. In respect of the latter contention, it expressed its understanding that no respondent party opposed the present application. Finally, it claimed that it had sought the views of various members of the native title claim group and they have agreed with the proposed discontinuance and have indicated that they do not intend to file another native title determination application in the future. 11 The State of Queensland did not file submissions and indicated that it neither consented to, nor opposed, the present application. 12 The Queensland South Native Title Services Limited, the native title representative body for the region which includes the area affected by the application, filed a set of brief written submissions in which it supported, and consented to, the orders sought.

CONSIDERATION 13 As a general proposition, leave will be given under r 26.12(4) to discontinue a proceeding where no injustice will be caused to any other party (see Levinge v Queensland (2012) 208 FCR 98; [2012] FCA 1321 (Levinge) at [38] and [44]). However, because a native title determination application under the NTA is, in essence, a representative proceeding, a factor which will usually affect the exercise of the discretion to discontinue a proceeding is whether the members of the native title claim group concerned have been consulted about the proposed discontinuance and expressed their views thereon (see Levinge at [47]-[49]). 14 In this matter, based on the affidavit material before me, I note the evidence that: (a) first, a message has been posted on the Facebook pages of the two broad groupings that make up the claim group (the Jagera Traditional Owners Group and the Jagera Yagara Gurrangnam Group) informing the members of those Groups of the Tribunal President's decision mentioned above (see at [7]); the proposal of the JYG Applicant to discontinue the proceeding; and its intention not to file a new claim; and (b) secondly, a recognised Elder of each of the families within the three lines of descent constituting the claim group has been spoken to and they have each agreed with the JYG Applicant's proposal to discontinue the proceeding and with its intention not to file a new claim. 15 Having regard to this evidence, I am satisfied that the members of the native title claim group have been duly consulted about the proposed discontinuance and expressed their support for it. This factor, together with those identified by the JYG Applicant in its written submissions (see at [10] above), have persuaded me that it is appropriate in the circumstances to exercise the discretion to grant leave to discontinue this proceeding. 16 Finally, having regard to the provisions of s 85A of the NTA and the absence of any submissions to the contrary, I consider that this discontinuance should occur without any order for costs being made. 17 Accordingly, the orders will be:

1. Pursuant to r 26.12(4) of the Federal Court Rules 2011 (Cth), the applicant has leave to discontinue the proceeding.
2. There is no order as to costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Reeves.