Subsequent developments
4 In the event, Queensland decided that it would not proceed with an interlocutory application to reopen so as to rely on updated title references. However, its conveyancing work in preparing the form of draft orders revealed a number of typographical errors and surplus detail. For example, sometimes several separate deeds had been issued over the same parcel identified in the Crown grant material that it had tendered at the trial, but those separate deeds reflected a single grant of freehold land that had been made to more than one person. Secondly, there were some instances where either the wrong, or no, deed of freehold was included in respect of a parcel of land included in the descriptions of freehold land in the tenure material on which Queensland had relied at the trial.
5 Queensland has now corrected the errors of the first class by making appropriate descriptive changes in the first schedule to the orders it proposes be made, describing areas of grants of freehold for which it seeks a determination that no native title exists under ss 94A and 225 of the Native Title Act 1993 (Cth). It has also deleted references to land the subject of the second class from the lands it had previously identified as the subject of extinguishing grants of freehold. Thus, it does not seek any determination in respect of land in the second class.
6 At the hearing today, Queensland read affidavits by Simon Grant, sworn 4 October 2013, a lawyer in the employ of its Crown solicitor, and Geoffrey Renouf, a Senior State Negotiator, Claim Resolution, Aboriginal and Torres Strait Islander Land Services of the Department of Natural Resources and Mines, affirmed 8 October 2013. Queensland South read an affidavit of Kelly Thomas-Greer affirmed 31 October 2013. Mr Levinge again appeared and represented himself alone, and made clear that he was not acting on behalf of the other members of the applicant. He pointed out that he had not been served personally with any draft orders by the State pursuant to my orders of 16 August 2013. He said that he had learned about today's hearing earlier this week from Mr Aird, who had previously been the individual who had represented the applicant while it had no legal representation earlier in the proceedings. Mr Levinge told me from the bar table, that Mr Aird had only been informed by the registry of today's listing on 29 October 2013.
7 The reason for that is not far to seek. For a short time during the course of the hearing on 3 June 2013, Queensland South had appeared in a limited capacity on behalf of the applicant, as I described in my reasons of that day. On 13 August 2013, Queensland South filed a notice of ceasing to act for the applicant and gave Mr Aird's address as the last address for the applicant. Mr Levinge had made clear, when he appeared on 16 August 2013, that he did so in his own personal capacity. No address for service by the applicant has since been filed. In those circumstances, it is unsurprising that the applicant was not served.
8 Unfortunately, Queensland did not serve any members of the applicant with its draft orders. However, that only became clear in the course of the hearing this morning. The applicant is, as Mr Levinge informed me, dysfunctional. As a result, it is apparent that the persons who comprised the applicant have not given an address for service and have not, perhaps because of their own failure to file an address for service, been notified of the hearing today.
9 On 3 October 2013, the State informed the other parties that it no longer sought up-to-date title references to the current tenure of the land for which it claimed a determination that no native title exists. Mr Grant deposed that in the course of the State seeking to prepare up-to-date tenure material in the draft orders, it became apparent that it, would be extremely time-consuming to prepare evidence of each link in the chain of the present title references as opposed to what he said was the usual course of doing so in these cases, namely, on the basis of a mapping exercise. Mr Grant acknowledged that, ordinarily in determinations of native title, the State until now has voluntarily prepared current title particulars. But, he said, this was not necessary for the purposes of s 225 of the Act. He said that the more efficient course in these proceedings, to enable an order to be made in a timely way, was to prepare the draft determination by reference to the historical tenure material in evidence. Mr Grant had spoken to Scott Tredwell, the senior legal officer of the National Native Title Tribunal, who had told him that the Native Title Registrar would not have any difficulty in discharging its obligations under s 193(2)(c) of the Act, if the State prepared the draft determination on the basis of the historical title details.
10 Ms Thomas-Greer also referred to discussions she had subsequently had with Mr Tredwell, and Mr Barry Miller, a geospatial specialist with the Tribunal. She noted that they had told her that the process proposed by the State would be the first determination made using only historical tenure material and that if the order was made, as the State proposes, the Register of Native Title would show the historical description from the determination. Thereafter, the Tribunal would need to create a spatial map referring to the current tenure descriptions so that members of the public could undertake a search of the register to see if their rights and interests had been affected by the determination. Mr Miller told her that in such circumstances, the Native Title Registrar would put the historical descriptions given by the State and any appropriate version of the Moreton 2 Mile Map Sheet 1 1912, which was an exhibit in the trial, into an appropriate scale and in a reasonable format. The Registrar would then use that map to create a georeference with common identified boundaries and corners to reference against current tenure material, so as to identify land, with current titles, that the Tribunal believed corresponded to the historically referenced land, but that if there were any significant differential boundaries in the lots identified, the Tribunal would then have to resurvey in respect of those matters.