Brooks on behalf of the Mamu People v State of Queensland

GREGORY LEIGH BINDER, WAYNE DOUGLAS BUIE, DAVID CARACCIOLO, JOHN COOK, MARIO CIRICA, NEVILLE DAVIES, RON FORSTER, MARIE GIDDINS, ROBERT GIDDINS, BRIAN HART, STEVEN HOWE, LARRY JONES, NORBERT KUROWSKI, WILLIAM JAMES LANE, PETER JORG PAHLKE, STEPHEN PENSINI, MARK DAVID RYAN, MARTIN SCHENCKEL, MICHAEL JOHN SCHULZ, JOHN NICHOLAS TAIFALOS, MICHAEL J TAIFALOS, JAMES ARTHUR TODD, LORNA KIRI WELSFORD, IAN WHITEHOUSE AND BARRY WILSON

JUDGE: DOWSETT J DATE: 1 MARCH 2013 PLACE: BRISBANE

REASONS FOR JUDGMENT 1 On 6 April 2001, Stephen Brooks and others, on behalf of the Mamu People, applied for a determination as to the existence of native title over coastal land in North Queensland. Dennis George Ah-Kee and Adrian Clive Murray now seek to be joined as respondents in order to protect rights which they claim to hold and enjoy as members of the Wanyurr Majay People. The Wanyurr Majay People hold native title over an area to the north of the Mamu claim area. Messrs Ah-Kee and Murray claim that the Wanyurr Majay People hold an interest as traditional owners of a small portion in the north of the Mamu claim area and on the coast, in respect of which they claim to enjoy and rights and interests as members of the Wanyurr Majay People. 2 The history of the Mamu application is as follows: 6 April 2001: application filed; 27 February 2002: notification period closes; 2006: Wanyurr Majay advise the Land Council that there is an overlap between lands which they propose to claim and lands claimed by the Mamu People; 16 January 2008: meeting between representatives of the Mamu People and representatives of the Wanyurr Majay People at which discussions occur as to boundaries to their respective claims to land and water; 31 August 2011: Wanyurr Majay People's claim (area north of Mamu claim area) determined by consent; December 2011: meeting between representatives of the Mamu People and the Wanyurr Majay People at which there is discussion about removal of Bella Armie as an ancestor; 27 February 2012: amended Mamu People's claim application filed; 16 August 2012: hearing date for consent determination of Mamu claim on 3 September 2012 is vacated; 19 October 2012: a new hearing date is fixed for 25 March 2013; and 5 February 2013: the present application was filed. 3 The Court was first informed of any possible claim by the Wanyurr Majay People to land included in the Mamu claim in August 2012, at which time, as I have said, the claim was set down for consent determination on 3 September 2012. As the evidence goes, the Mamu People were first advised of the overlap not long before August 2012, although there may have been earlier mention of it. 4 There is somewhat vague evidence that over the six or seven years between 2006 and 2012/2013, Wanyurr Majay people mentioned to the North Queensland Land Council (the "Land Council") the possibility of an overlap of the Mamu claim area by a claim which they wished to make. It is said that the Wanyurr Majay were advised to focus on areas not in dispute, which advice they accepted. In fact, nothing was done to advance that claim until August 2012. 5 The present applicants, Messrs Ah-Kee and Murray, assert that the Wanyurr Majay People had no funding to mount a claim without support from the Land Council. This may be so but it hardly explains their acquiescence in the Land Council's inactivity and their failure to seek alternative sources of funds or at least to bring the matter to the attention of the Court and/or the Mamu People. In particular, it does not explain why no application of the kind presently before the Court was made until 5 February this year, notwithstanding my concerns and prompting at directions hearings in August and October last year. It seems that the Wanyurr Majay had some reliable anthropological evidence available to them in 2006, although that evidence seems to be inconsistent with other available evidence. 6 In January 2008, at a meeting between representatives of the Wanyurr Majay and Mamu People, there was agreement as to the boundary of an area below high water mark and extending into the Pacific Ocean. The coastal boundary of this maritime area appears to include most, if not all, of the coastal boundary of the area of the overlap. Messrs Ah-Kee and Murray now assert that such agreement (to which Mr Murray was a signatory) did not imply an acceptance that the land area abutting the coastal boundary was Mamu country. It is difficult to avoid that conclusion. 7 In any event, I accept that there is an arguable case that the Wanyurr Majay People have a claim to the area in question. That acceptance would normally lead me to accede to the application for joinder. However, in this case the application is very late and not satisfactorily explained. Even the delay in filing this application, from October 2012 to early February 2013, is effectively unexplained. Much may have been done to resolve the overlap had the application been made sooner. More importantly, the explanation of the inactivity between 2006 and 2012 is largely unsatisfactory. It may be accepted that the Land Council was utilising its funding and human resources in other areas, including the other Wanyurr Majay claim and the Mamu claim. It may be accepted that the Wanyurr Majay members, from time to time, mentioned the matter to the Land Council. However, there is no explanation for their failure to raise the matter with the court or with the Mamu People. 8 From a third party's point of view, this conduct might well look very much like abandonment of the claim. Messrs Ah-Kee and Murray cannot themselves seek a determination of native title. Such title as they claim is that of the Wanyurr Majay People and must be made in the way prescribed by the Native Title Act 1993 (Cth) (the "Native Title Act"). Whilst they claim to be entitled to enjoy, as individual members of the Wanyurr Majay People, the benefits of the group's claimed native title, they can only seek to protect such benefit against any unjustified claim to native title by the Mamu People. The Wanyurr Majay People have not yet launched any proceedings to vindicate any claim to native title made on their behalf. No indication has been given as to how, when or whether they will make such a claim. Given the late stage at which the present application is brought, one might have expected that if the Wanyurr Majay People intended to bring a claim, there would have been some evidence of there being steps in train so to do. Rather, it seems that the matter is still very uncertain. It is not as if the Wanyurr Majay People are disorganised or unfamiliar with the native title process. They have previously established that they are traditional owners of other land in the region. Nor is there any evidence that the present interlocutory applicants have tried to organise a claim and been rebuffed. There is some evidence which suggests differences of opinion amongst the Wanyurr Majay People as to the validity of any claim to the overlapped area. 9 In those circumstances, it would be grossly unjust to the Mamu People further to delay their determination against the mere possibility that the Wanyurr Majay People may start proceedings and eventually be successful in establishing that they hold native title over the overlapped area. 10 There is one other consideration. The State of Queensland is a necessary party to any consent determination. Although it has previously indicated that it will consent to the proposed determination, it now wishes to reconsider the matter in the light of the further anthropological material which is available. I cannot force the State to consent. However I do not presently propose to vacate the date for the consent determination. If any party wishes to seek such vacation, that party should apply on notice in the usual way. The application is dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.