Hatfield on behalf of the Darumbal People v State of Queensland [2012] FCA 796 | Case summary

REASONS FOR JUDGMENT 1 I have before me today a combined total of four interlocutory applications in Alan Douglas Hatfield and Others on behalf of the Darumbal People QUD 6131 of 1998 and Alan Douglas Hatfield and Others on behalf of the Darumbal People #2 QUD 6001 of 1999. Although four in number, in fact two identical interlocutory applications have been filed in respect of each claim. 2 The two Darumbal claims cover approximately 52,380 square kilometres of land and off-shore waters including Rockhampton, Yeppoon and Marlborough, within the external boundary of the Darumbal claim. More specifically: the Darumbal claim covers the Shoalwater Bay Military Training Facility, Byfield National Park, a number of islands extending to the eastern extremity of the Great Barrier Reef as well as reserves, USL, mining and pastoral leases; and Darumbal #2 is a lot specific claim initially filed in response to a s 29 notice under the Native Title Act 1993 (Cth) ("Native Title Act"), covering the same tenure types as the Darumbal claim but without the offshore component. The applicant to the Darumbal #2 claim consists of eight persons, five of whom constitute the applicant to the Darumbal claim but excluding Louis Mann and Vivienne Roma. 3 The Native Title Claim Group is identical for both claims. 4 These claims are 15 years old at the very least and there has been little progress until fairly recently. 5 The interlocutory applications currently before the court in each matter fall into two categories: 1. In the first interlocutory application the current Applicant seeks leave of the Court to amend the description of the Native Title Claim Group, including by altering the Applicant named in the Native Title Application. The effect of the amendment will be to change the composition of the relevant Native Title Claim groups. 2. In the second interlocutory application: (i) six members of the new Native Title Claim Group ("the Replacement Applicant") seek to jointly replace the current Applicant pursuant to s 66B of the Native Title Act. Four of these persons are members of the group that comprises the current Applicant; (ii) the Replacement Applicant then seeks leave to amend the claims so as to combine the Darumbal claim with the Darumbal #2 claim pursuant to s 64 of the Native Title Act, and to contract the external boundaries of the combined claimed area; (iii) in anticipation of a partly overlapping native title determination application being lodged by the Yetimarla People, the Replacement Applicant seeks to have the combined Darumbal claim separated into part A and part B (part B being the area of the anticipated overlap), with part A to be heard and determined in advance of part B. 6 I note that in the course of progressing the Darumbal and Darumbal #2 claims, the solicitors for the Applicant, Queensland South Native Title Services Limited ("QSNTS") engaged consultant anthropologists Professor Paul Memmott and Mr Peter Blackwood to undertake anthropological research in relation to the issue of a continuing Darumbal society. Further, QSNTS arranged for two authorisation meetings to take place consecutively on 2 June 2012 in Rockhampton. The first meeting was notified and conducted solely as a meeting for the respective current Native Title Claim groups. The purpose of the meetings was primarily to enable the current Native Title Claim Groups to consider the anthropological research and to decide whether to authorise an amendment to the description of the Native Title Claim Group in both claims. 7 Only members of the current Native Title Claim Groups had authority to make that decision. The meeting was also to enable the current Native Title Claim Groups to decide whether to amend the seaward boundary of the Darumbal claim. 8 In relation to the description of the Native Title Claim Group in each claim the following resolution was passed at the relevant meeting: Resolution #7 - Amendment to claim group description (with amendment - Proposal B) That the native title claim group for the Darumbal native title determination applications QUD 6131 of 1998 and QUD 6001 of 1999 be amended so as to be described as follows: The claim group is comprised of all people who are descendants of deceased persons who are recognised by the Darumbal People as having been Darumbal People from whom the living Darumbal People have descended, including the following deceased persons: o Brothers John McPherson and Harry Bauman o Kate Reid and James Hector o Clara McKenzie o Jack Naylor (Jnr) o Maria McKenzie o Clara Wallace o Mundabel o Mary Jones o Maggie (Mitchell) o Yorky o Kitty Mulway and Pompey of Stannage. 9 The effect of that resolution was to constitute the new Native Title Claim Group in each claim, some members of which had not previously authorised the current Applicant to bring proceedings on their behalf. 10 The second meeting, held later in the day on 2 June 2012, was notified and conducted as a meeting of the new Native Title Claim Group as reconstituted by the decision made at the first meeting. The purpose of the second meeting was to: (a) authorise an Applicant for each of the Darumbal claims in accordance with s 66B of the Native Title Act; (b) authorise an amendment to combine the Darumbal and Darumbal #2 claims; (c) authorise an amendment to the external boundaries of the combined Darumbal claim area; and (d) discuss and agree upon the extent of any or part of the combined claim area where native title rights and interests are shared by the persons known as the Yetimarla People. 11 A resolution was passed at this meeting authorising the Replacement Applicant to make the Darumbal and Darumbal #2 claims, to deal with matters arising in relation to those proceedings, and to make applications pursuant to s 66B of the Native Title Act for orders that they replace the current Applicants. Further resolutions were then passed authorising the Replacement Applicant to, among other things: combine the Darumbal and Darumbal #2 claims; amend the external boundaries of the combined claim area; and take any steps necessary to give effect to the 1 October 2011 mediation agreement entered into with the southern Barada Barna Kabalbara Yetimarla People ("Yetimarla group") in relation to the western boundary of the claim area. 12 The orders sought in the interlocutory applications currently before the Court reflect the sequence of decision-making at these two meetings. 13 I now turn to the interlocutory applications before the Court in each claim. The first interlocutory application seeks amendment to the Native Title Claim Group description, and that leave be granted to amend the applications in the Darumbal and Darumbal #2 claims so as to reflect the new Native Title Claim Group. In my view, having heard submissions of all parties this morning, it is appropriate for the Court to make the orders sought, and I do so for the following reasons: 1. the amendment is consistent with the scheme of the Native Title Act. The proper identification of the Native Title Claim Group is of fundamental importance to the claims. 2. the current Native Title Claim Group unanimously passed the resolution to amend the Native Title Claim Group description after having had the opportunity to consider the research, ask questions of the consultant anthropologists, and discuss the matter as a group. 3. there is evidence before the Court that QSNTS held prior discussions with the descendants of apical ancestors, Kanomie Richards (nee Ross) and Nellie Level, in relation to the continued inclusion of those apical ancestors in the Darumbal and Darumbal #2 claims. 14 The new Native Title Claim Group descriptions will not include descendants of those apical ancestors. I understand that descendants of Kanomie Richards (nee Ross) attended the first meeting and voted in favour of the new Native Title Claim Group description. 15 In relation to the second interlocutory application before the Court in both matters, the Replacement Applicant applies for an order that it replace the current Applicant. The need to replace the current Applicant is brought about by the change in the composition of the Native Title Claim Group. Section 66B of the Native Title Act provides inter alia that: one or more members of the Native Title Claim Group in relation to a claimant application may apply to the Federal Court for an order that all members jointly replace the current Applicant to the Native Title Application on the grounds that: one or more of the matters listed under s 66B(1)(a) applies to a person who is either alone or jointly with one or more other persons the current Applicant; and the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it. the Court is empowered (by s 66B(2)) to make an order if satisfied that the relevant grounds are established. 16 From hearing the submissions this morning it is clear that conduct of the Darumbal and Darumbal #2 claims would be greatly improved if the two claims could be combined and conducted as a single proceeding. The orders sought by the Applicant in relation to replacement of the authorised Applicant and combining the claims should be granted. 17 In my view, however, different considerations apply in relation to separating the combined claim into parts A and B. 18 I note that on 26 June 2011 members of the current Applicant met with members of the Yetimarla group in Rockhampton to mediate competing claims of native title rights and interests in the area of Old Marlborough and Apis Creek (situated in the western part of the claim area). I note also that on 1 October 2011 members of the current Applicant again met with members of the Yetimarla group for mediation, and at the conclusion of that mediation a written agreement was reached. Proposed amendments to the external claim boundaries are consistent with the mediation agreement. The shared country area and its location within the combined Darumbal claim area is depicted on a map which is annexed to the affidavit of Christie Groves filed 13 July 2012. 19 Submissions were made before the Court to the effect that the Yetimarla claim is progressing. There is also material annexed to an affidavit before the Court filed by Mr Hatfield on 3 October 2011 to the effect that the Yetimarla have agreed to use their best endeavours to file the native title determination application over the shared country, and to progress that proceeding in an expeditious manner. Nevertheless, as was conceded before me this morning, there is no certainty as to when the Yetimarla will lodge their Native Title Determination Application. Indeed, submissions before the Court suggest that a claim in respect of the Yetimarla country may not be made until, at the earliest, October 2012 (and indeed one of the respondents, Ms Berylanne Bauman-Sadowski, in submissions this morning, forecast a further possible claim in respect of that area). 20 In light of this uncertainty, while I am prepared to make a number of the orders sought in this interlocutory application, it is appropriate to adjourn those parts of the interlocutory applications relating to the separation of parts A and B of the Darumbal claim where part B contemplates the lodgement of a claim by the Yetimarla People. In particular, I refer to paragraphs 5 to 11 of the interlocutory application filed 13 July 2012 in QUD 6131 of 1998. I propose that hearing of those paragraphs of that interlocutory application be adjourned to the next directions hearing in this matter, currently listed for 16 November 2012 in Rockhampton. 21 Finally, a number of submissions were made this morning by Ms Berylanne Bauman-Sadowski opposing the interlocutory applications. In my view however Ms Berylanne Bauman-Sadowski's submissions relate only to anthropological issues in respect of the claim. Her concerns can be addressed in the report currently being prepared by Professor Memmott and Mr Blackwood, and are also issues for resolution within the claim group. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Hatfield on behalf of the Darumbal People v State of Queensland

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