Murgha on behalf of the Combined Gunggandji Claim v State of Queensland

BLACK AND WHITE (QUICK SERVICE) TAXIS PTY LTD CAN 009 754 705

MICHAEL CONNOLLY, VANCE HENRY GORDON, PERCY AND ALF NEAL, DARRYL RALPH POLLARD, ELAINE MARINA POLLARD AND ALLAN MIMO YEATMAN

JUDGE: DOWSETT J DATE: 14 NOVEMBER 2011 PLACE: BRISBANE

REASONS FOR JUDGMENT 1 In these proceedings the Gunggandji people seek a Native Title determination pursuant to the Native Title Act 1993 (Cth) (the "Act"). Prior to 23 November 2004 the applicant consisted of three people; Mr Frederic Noble, Mr Stewart Harris and Mr Leslie Murgha. At a meeting held on 23 November 2004 it was proposed that Mr Noble be removed as a member of the claim group. The claim group decided that such decisions were for the elders. The elders held a separate meeting and decided that Mr Noble should be removed. They then informed the claim group accordingly. Subsequently, on 31 March 2005 I made an order which reflected such removal. In particular, I ordered that the applicant hereforth consist of the following persons acting jointly: Leslie Vivian Murgha; and Stewart Eric Harris. 2 Mr Harris died on 5 August 2010. Since that time there has been at least one meeting of the claim group to authorise Indigenous Land Use Agreements ("ILUAs") in connection with the Native Title application. There have also been numerous meetings of various working groups concerned with aspects of the claim. However, until the present time no formal step has been taken to change the composition of the applicant. The affidavit of Robert Carson Patterson filed in support of the substantive application indicates that Mr Harris represented his family as an elder. 3 I am now asked by Mr Murgha to remove Mr Harris as an applicant so that the application can proceed to a consent determination, presently scheduled for December of this year. It is said that Mr Murgha is entitled to make the application, exercising the powers conferred upon him as one of the persons comprising the applicant. Authority for this proposition is said to be derived from the decision of Mansfield J in Lennon v State of South Australia [2010] FCA 743 and Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland [2011] FCA 690, a decision of Logan J. Both decisions seem to me to be, however, inconsistent with a decision of Siopis J in Sambo & Ors v Western Australia & Ors (2008) 172 FCR 271. The matter was also addressed in earlier decisions of Spender and Kiefel JJ, but those decisions predated amendments to s 66B of the Act which, to my mind, render them of little assistance for present purposes. 4 Unfortunately I prefer the reasoning of Siopis J to that of Mansfield and Logan JJ. In my view s 66B now prescribes the method to be adopted in seeking to change the composition of the applicant in a Native Title application. I can see no justification for implying a power vested in a surviving member of an applicant to change its composition merely upon the basis that the terms of the applicant's existing authorization do not expressly exclude such an application from the extent of its authority. I accept that a claim group could authorise a surviving member of the applicant to make such an application, but I see no proper basis for inferring that this was the intention of the claim group. Were the matter to be resolved purely upon the evidence as to the terms of the original authorization I would be inclined to the view, following the decision of Siopis J, that the claim group must authorise any application for the removal of Mr Harris as an applicant or, more correctly, authorizing Mr Murgha to act alone. 5 However, as I have said, there has been a meeting of the claim group since the death of Mr Harris. I have no difficulty in inferring that those attending were aware of his death. In those circumstances it is reasonable to infer that they intended that Mr Murgha continue as the sole applicant and authorized him to take such steps as might be necessary in order to regularise his position. For that reason I am willing to proceed upon the basis that he has been authorised pursuant to s 66B to make the present application. I proceed accordingly. It may be arguable that the conduct of the members of the claim group, in allowing the matter to proceed, indicates their understanding of the original authorization, but it is not necessary to consider that matter further. 6 There will be an order in terms of para 1 of the interlocutory application and a further order that time for bringing the interlocutory application be abridged to the extent necessary. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.