Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland

Federal Court of Australia|2002-06-14|Before: Merkel J, Dowsett J

REASONS FOR JUDGMENT 1 Towards the end of last year I listed for hearing in Cairns on 7 and 8 February this year, matters which I understood to be applications for joinder of parties in these proceedings. However in the course of the hearing on 7 February, it became clear that all of the persons in question had given notices pursuant to par 84(3)(b) of the Native Title Act 1993 (Cth) (the "Act"). I formed the view that the persons in question (the "joining parties") were already parties, subject only to the possibility of their being dismissed from the action pursuant to subs 84(8) or (9). It seems that this view is not universally shared, however I am persuaded as to its correctness. The matter was not argued in detail before me, and so there is no point in my giving further reasons. It is sufficient to say that proceedings were thereafter conducted upon that interpretation of s 84. 2 All parties, including the joining parties had been advised that the proceedings on 7 February were to determine whether the joining parties should be joined. As a result of my ruling, the question became whether they should be dismissed from the proceedings. Some of the joining parties did not appear. It is possible that these people may have assumed that their status pursuant to s 84 made their attendance unnecessary. In the event, all parties who appeared co-operated in trying to extract such benefit as was available from the proceedings. 3 All disputes as to the joining parties' status focussed upon their respective interests for the purposes of subpar 84(3)(a)(iii) and perhaps par 66(3)(a)(vii). It was generally agreed that I should adopt the approach demonstrated in the decision of the Full Court in Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1. The following observation by Merkel J in that case was treated as an appropriate basis for determining the present proceedings. At 41 his Honour said: There is no reason why persons who have had and continue to have regular and lawful use or enjoyment of areas of land or waters covered by a claim under the Act should not be afforded the opportunity of being heard as a party before losing their 'right' or having it otherwise affected by a native title determination. See also at 17 - 19, per Lockhart J. However all members of the Court in Byron made it clear that mere rights enjoyed by all members of the public would not necessarily be sufficient to justify joinder. Actual past and probable future use might be sufficient. It is not necessary for me to take this matter further in view of attitudes adopted by the parties at the hearing. I will now consider the claims of the various joining parties.

Frankland Island Cruise & Dive Pty Ltd 4 This party appeared by counsel and indicated that it did not wish to continue in the proceedings. It was dismissed from the action.

Stella Vallino 5 This person did not appear at the hearing. The registry subsequently received correspondence from Ms Vallino stating she wished to withdraw her application. She is therefore dismissed from the proceedings.

Queensland Lapidary and Allied Crafts Club ("QLACCA") 6 This corporation appeared by counsel. It is incorporated pursuant to the Associations Incorporation Act 1981 (Qld). The Fossicking Act 1994 (Qld) (the "Fossicking Act") contemplates the issue of licences to fossick. The term "fossick" is defined in subs 5(1) to mean: (a) search for fossicking material in a systematic or unsystematic way - (i) on the ground surface; or (ii) by digging with a hand tool; or (b) collect fossicking material. 7 The term "fossicking material" is defined in s 3 to mean: (a) a gemstone; or (b) an ornamental stone; or (c) a mineral specimen; or (d) alluvial gold; or (e) a fossil (other than a fossil of a vertebrate animal); or (f) a substance prescribed by regulation to be fossicking material; but does not include a meteorite, tektite or impact or ejected material associated with a meteorite impact structure. 8 QLACCA appears to be a club for the purposes of s 4 of the Fossicking Act. Pursuant to s 14, it may be the holder of a club fossickers licence. Pursuant to ss 24 and 25 a member of such a club is permitted to fossick. Fossicking may be carried out upon land only with the permission of the owner, leaseholder or, in the case of a quarry, the relevant permit holder. The members of QLACCA are all constituent clubs, one of which is the Cairns Mineral and Lapidary Club Inc, presumably a body corporate. QLACCA organizes fossicking events and activities throughout Queensland for its members and the public. It seems that members of the Cairns club, using the QLACCA licence, have fossicked within the area which is the subject matter of these proceedings and that the area is of some interest for fossicking purposes. By virtue of an amendment to the Fossicking Act adopted in 1994, any determination that native title exists over the subject land will result in its being unavailable for fossicking in the absence of an indigenous land use agreement. 9 Two primary points were taken in opposition to the continued participation of QLACCA in these proceedings. The first was that it has no present right to fossick on any of the subject land without the permission of the relevant titleholders. The second was that QLACCA does not itself fossick although its member clubs and/or members of such member clubs may do so, using its licence. 10 As to the first point, it is true that in general, the holder of a licence must obtain permission before entering upon land to fossick. Nonetheless, in the event of any determination that native title exists over the subject land, a licensed fossicker will be faced with a quite different situation. Such a determination, regardless of the actual incidents of the title, would result in the land becoming unavailable for fossicking until an indigenous land use agreement is registered in accordance with the Act. This is quite different from the current requirement for permission which appears to contemplate an informal process, conducted on an ad hoc basis with easily identified land holders. 11 As to the second point, it must be kept in mind that the Fossicking Act provides for club licences, designed to facilitate fossicking activities by club members. The Cairns club relies upon the availability of the licence held by QLACCA. That latter corporation exists in order to facilitate fossicking by its member clubs and by the members of its member clubs. It clearly has an interest in maintaining access to ground which is suitable for fossicking, and this interest is recognized by statute. By virtue of its licence, it is directly involved in fossicking by its member clubs and their members. For that reason, the case can be distinguished from Woodridge v Minister for Land & Water Conservation for the State of (NSW) [2001] FCA 419 per Katz J. I am satisfied that the interests of QLACCA may be affected by a determination that native title exists and am therefore of the view that it should continue as a party.

Ivan and Emily Bettini; John and Jennifer Anne Mondora; Stephen Eric Lauriston; Leslie Donald and Eileen Lee Stager; Colin George and Anna Anderson 12 These parties were represented at the hearing. I will refer to them as the "recreational users". Each claims to be an ongoing recreational user of land within the claim. As a result of concessions made in the course of proceedings, such interest is now limited to the various islands excluding Russell Island. Mr Bettini says that for the whole of his life he has used the islands for recreational purposes, including swimming, walking, fishing, camping, boating, picnicking and sight-seeing. He claims to visit at least once a month and more frequently during holidays. I infer that his wife undertakes such activities with him. Mr Mondora makes similar claims on behalf of himself and his wife, claiming that he has so used the islands for a period of forty years. Mr Lauriston claims such use over twenty-three years. Mr Stager claims to have exercised access since he was a child. Ms Anderson makes similar claims on behalf of herself and her husband. In all cases the assertion appears to be of use of these islands over many years with the expectation of ongoing usage for individual and family recreational purposes. There was no challenge to the factual correctness of these assertions. However the native title claimants asserted that the recreational users have no present legal right to have access to these islands. 13 One island is referred to as USL 21995, the letters "USL" apparently indicating the words "unallocated state land". It was submitted on behalf of the native title claimants that these recreational users are presently prohibited from having access to USL 21995 by virtue of ss 404 and 406 of the Land Act 1994 (Qld) (the "Land Act"). This seems to me to be incorrect. Subsection 404(1) provides: A person must not unlawfully, do any of the following things (a "trespass-related act") in relation to non-freehold or trust land - (a) occupy or live on it; (b) enclose it; (c) build, place or maintain any structure, improvement, work or thing on it; (d) clear, dig up or cultivate it; (e) depasture stock or cause stock to be depastured on it. 14 Section 406 authorizes the chief executive of the relevant department to issue a trespass notice to any person who, as he or she believes, is unlawfully occupying land or has unlawfully done a trespass-related act on land. That notice may require a person to leave the land, to remove or not remove items from the land, to remove anything enclosing the land or to do anything necessary to restore the land to its state before occupation or other offending act. One would not expect the recreational use of the island to involve any of the activities referred to in ss 404 and 406. Neither s 404 nor s 406 prohibits use of USL 21995 by members of the public for recreational purposes. It was not suggested that any other legislative provision did so. The high point of this argument was that the use of the word "trespass" implied that entry upon such land would constitute trespass according to general principles, but I can see nothing in either section to justify that view. The decision in State of South Australia v Wilmott (1993) 62 SASR 562 is of no assistance for present purposes. 15 The other islands are within a national park and subject to regulation pursuant to the Nature Conservation Regulation 1994 (Qld) (the "Conservation Regulations"). As would be expected they regulate access to particular areas and conduct in the park, including lighting fires, importing plants, behaving in a disorderly manner or creating a disturbance, seeking exclusive use of a barbeque or table, indiscriminate defecation and damaging signs. However there is no purported attempt to regulate access to all such land. In the absence of any notice of the kind contemplated by sub reg 68(1), I see no basis for the assertion that these regulations in any way deprive the recreational users of access to the islands. 16 The principal issue is whether or not the recreational users have interests which may be affected by a determination that native title exits. They presently have the right to use these islands for recreational purposes, or at least such use is tolerated. This situation has continued for many years. The native title claim is to exclusive possession. There can be no doubt that this would exclude continued use of these islands for recreational purposes save to the extent that the native title holders might choose to permit it to continue. The recreational users are not simply members of the public who might choose to use the land or have done so occasionally in the past. The remarks in Byron which are quoted above are of direct relevance in this respect. They should continue as parties, although it may be appropriate that an order be made pursuant to subss 84(5A) and (9) to minimize cost and inconvenience at the trial.

Barbara Alice Braithwaite and John William Kingston 17 Ms Braithwaite and Mr Kingston claim that they and their families have been utilizing the "Russell Islands" for recreational and fishing activities for over fifty years. The reference to "Russell Islands" appears to be to the islands in the Frankland Islands group. Their position is the same as that of the recreational users. Subject to consideration being given to the application of subss 84(5A) and (9), I consider that they are properly parties in the proceedings.

Vivian Kevin Wienert and Graham John Wienert 18 Mr V K Wienert is the father of Mr G J Wienert. The former indicated that the latter no longer wished to be a party to the proceedings. He did not appear. Mr Wienert has a cane farm in the vicinity of the subject land, but not adjoining it. There is a problem with wild pigs in the area. He is concerned that: … if native title is granted to the claimants, they would have rights to hunting and gathering in that area. What concerns me is what their attitude will be to the feral pig population. It may be that they will regard the feral pig population as like a free-range piggery instead of a serious pest that needs to be eradicated and therefore the thrust of my submission was that if native title was granted, the condition of that granting be that the claimants pursue a policy of eradication as far as the feral pigs are concerned and not just hunting and preserving them in perpetuity because this will be detrimental to that wet tropics area and even though my property is not there, I make that submission just as a concerned citizen. 19 This is nothing more than a matter of public concern of no special significance to Mr Wienert. In those circumstances he should be dismissed from the action. I so ordered in the course of the hearing. 20 Mr G J Wienert's claimed interest appears to be recreational. In view of the information received from his father, I will dismiss him from the action. However I grant him leave to apply to be re-joined.

Michael Stewart and Merilyn June Lang 21 Mr and Mrs Lang own property on the mainland, more or less opposite the Frankland Islands. It is a rural property although it is not presently being used for rural purposes. The question of water discharge from their land is regulated by agreement with various state government departments. To put it bluntly, Mr Lang is concerned that should it be determined that native title exists over the Frankland Islands, there will be further complications in this regard. This view is based upon the perception that discharge of water from the mainland may affect the islands. The argument assumes that any native title holders would effectively be in the position of a government department and able to make life difficult for land holders on the mainland. I can see no real justification for this fear. Whether or not native title is shown to exist over the Frankland Islands, the question of discharge of water in the area will no doubt continue to be of interest to the relevant department or departments of the state government. I cannot see that determination of the existence of native title can in any way affect the interests of Mr and Mrs Lang. They will be dismissed from the action.

Non-appearing parties (except Mr G J Wienert) 22 That leaves for consideration only those joining parties who have not appeared other than Mr G J Wienert. Because of the unfortunate way in which these proceedings were brought on, I have wavered somewhat in my view as to how I should deal with them. In the end I have decided to consider their claims on the papers to determine whether or not they demonstrate appropriate interests.

Rodney George and Rosalie Dawn Fullwood 23 This claim appears to be similar to that mounted by the Langs. It is not maintainable. They should be dismissed from the proceedings.

Jeffrey Roy Tanswell, Judith Anne & Keith John Fisher, the Mansfield family 24 These parties make claims similar to those of the recreational users. They should remain as parties subject to some arrangement being made to protect their interests pursuant to subss 84(5A) and (9). 25 I give to all parties who have been dismissed from the proceedings, leave to apply to be joined should they be so advised. I do this in case they may have misunderstood the nature of these proceedings as a result of the error to which I have referred. I am anxious to avoid any possibility of prejudice as a result of it. As to the recreational users and other persons with similar claims, all of whom I have allowed to remain as parties, I will adjourn proceedings to see if it is possible to arrange their representation in the proceedings in such a way as to avoid undue cost and delay. All parties will have liberty to apply. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

North Queensland Land Council Solicitor for the Applicant:

Counsel for the Respondent: Mr G E Hiley QC

Solicitor for the Respondent: Crown Law

Solicitor for the Fishing Parties and the Irrigation Farming Parties: Gore & Associates

Solicitor for Yarrabah Aboriginal Community Council: Bottoms English

Solicitor for Ergon Energy: MacDonnells Solicitors

Solicitor for Cairns City Council and Cairns Port Authority: MacDonnells Solicitors

Solicitor for Colin & Anna Anderson, Stephen Lauriston, Ivan & Emily Bettini, Leslie & Eileen Stager and John & Jennifer Mondora: MacDonnells Solicitors

Counsel for Queensland Lapidary and Allied Crafts Club: Mr P Bickford

Solicitor for Queensland Lapidary and Allied Crafts Club: MacDonnells Solicitors

Counsel for Frankland Island Cruise & Dive Pty Ltd: Mr K Priestly

Barbara Braithwaite appeared in person on her own behalf and for John Kingston.

Vivian Wienert appeared in person on his own behalf and for Graham Wienert.

Michael Lang appeared in person on his own behalf and for Merilyn Lang.

Dates of Hearing: 7 & 8 February 2002

Date of Judgment: 14 June 2002

Nature Conservation Regulation 1994(Qld)

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