Turrbal People v State of Queensland

REASONS FOR JUDGMENT 1 On 27 July 2005 the State of Queensland filed a notice of motion seeking orders that: '1. The Turrbal People's native title determination application QUD 6196 of 1998 be separated into two parts, to be called "Turrbal Part A" and "Turrbal Part B". 2. Turrbal Part A will consist of that portion of QUD 6196 of 1998 which is not overlapped by any other native title determination application, namely the parcels identified in the schedule annexed hereto. 3. Turrbal Part B will consist of the balance of the area subject of QUD 6196 of 1998, being the area not subject of Turrbal Part A. 4. Turrbal Part B is adjourned to a date to be fixed for further directions. 5. Turrbal Part A is set down for trial in Brisbane commencing on a date to be fixed by this Honourable Court in early 2006.' 2 A schedule identifying 96 lots by real property description is annexed to the notice of motion. 3 The Turrbal People lodged an application for native title on 13 May 1998. An amended application was filed on 29 September 1999 and there have been further amended applications. On 5 May 2000, leave was given for a further amended application. On 8 October 2002, the Court referred the application to mediation and noted that 'The Turrbal and Jinibara overlap issues should be attempted to be resolved by mediation' and "if the overlap issues are not resolved by mediation by the time of the next directions hearing the Court will consider setting the matter down for trial". 4 The further amended application was registered on 26 May 2000. Since that time there have been a number of motions concerning the identification of the points of claim and their amendment, in particular applications by the applicant to amend the points of the claim to "reinstate" reserves. The applicant delivered the majority of the expert and non-expert evidence on which it wishes to rely to the State of Queensland in April 2005, with one further delivery shortly thereafter. 5 The State of Queensland on 27 May 2005 filed notices of objections to the applicant's expert reports, a notice identifying the evidence which the State required to be led orally, and a notice identifying the documents or parts of documents to which objection would be taken to the tender of those documents, identifying the basis for the objections. 6 The Commonwealth has filed notices adopting the State's notices. 7 The difficulty that is at the heart of the State of Queensland's motion is the existence of significant overlapping claims. First, the Jinibara People's claim QUD 6128 of 1998 and the Jagera People's No. 2 claim QUD 6014 of 2003. 8 The surface area of the Turrbal People's claim is said by Mr Damian Roe, an employee of the Department of Natural Resources and Mines ("NRM") of the State of Queensland to have a surface area of approximately 1,485 square kilometres. The Turrbal People's claim is a claim for native title rights and interests over 330 parcels of land in Brisbane and surrounding areas, which parcels comprise unallocated state land, state forests, national parks, Victoria Park and Musgrave Park. Those parcels of land are identified in five schedules: B1, B2, B3, B4 and B5 to the Turrbal People's amended native title determination application filed 14 April 2000. 9 Information from Mr Roe indicates that the Jinibara People's claim is not limited to specific lots or particular tenures, and covers a surface area of 4,614 square kilometres. The Jinibara People's claim overlaps the north-westerly part of the Turrbal People's claim to the extent of approximately 219 square kilometres. The Jinibara People's claim is also overlapped by the Jagera People's No. 2 claim and the Glasshouse Mountains Gubbi Gubbi People's claim (QUD 6083 of 1998). 10 Mr Roe also has provided information that the Jagera People's No. 2 claim, which is also not limited to specific lots or particular tenures, covers an area of approximately 6,103 square kilometres. The Jagera People's No. 2 claim overlaps the southern part of the Turrbal People's claim to the extent of approximately 743 square kilometres, and is also overlapped by the Jinibara People's claim and the Western Wakka Wakka People's claim (QUD 6004 of 1999). 11 That portion of the Turrbal People's claim area which is not the subject of overlap by any other native title determination comprises 522 square kilometres covering 96 lots or part lots. That area is the area which is referred to as "Turrbal Part A" in the notice of motion. 12 There have been significant unsuccessful attempts to resolve the overlaps between the Turrbal People's claim, the Jinibara People's claim and the Jagera People's No. 2 claim. 13 On 26 March 2004, pursuant to s 86C of the Native Title Act 1993 (Cth) ("the NTA"), I ordered that mediation of the Turrbal People's claim cease by the Native Title Tribunal, concluding that the question of overlap could not be resolved. 14 As earlier indicated, there have been programming orders in respect of the progress of the Turrbal People's claim and significant preparation for trial has been made in respect of that claim. That position is to be contrasted with the state of preparation for trial in respect of the Jinibara People's claim and the Jagera People's No. 2 claim, both of which remain in mediation and in respect of which no orders have been programming them towards trial. 15 Rachel Louise Wooley, a solicitor employed in the office of the Crown Solicitor for the State of Queensland, has filed an affidavit which, very helpfully, summarises the contentions on behalf of the State of Queensland directed to the Court making the orders sought by the notice of motion: '17. The State seeks the orders in the Notice of Motion because: (a) Turrbal Part A is almost ready for trial; (b) a mediated outcome is most unlikely; (c) a trial of Turrbal Part A would be relatively short and inexpensive; (d) a decision in respect of Turrbal Part A may assist the parties to negotiate outcomes in respect of Turrbal Part B and the overlapping claims; and (e) if the whole of the Turrbal People's claim is to be heard at the one time, the existence, lack of progress, and potential complexities of the overlapping claims will result in considerable further delay and expense. 18. As to paragraph 17(a) above, the main steps still required to be taken in order to progress the Turrbal People's claim to trial are: (a) the respondents are to file and serve any evidence on which they propose to rely in response to the evidence filed on behalf of the Applicant; and (b) the respondents are to file and serve any evidence on which they propose to rely in relation to extinguishment of native title. 19. I have consulted with historical and anthropological experts retained by the State in relation to this matter, and with the relevant officers from NRM with responsibility for managing the research and preparation of tenure material. I am informed and believe that the State could complete these steps by 30 December 2005 if the tenure work was confined to the lots within Turrbal Part A. 20. As to paragraph 17(b) above, I am instructed by Mr Damian Roe of NRM that there appears to be no prospect of successfully mediating an outcome. 21. As to paragraph 17(c) above, for the reasons that follow, I consider that the trial of Part A would be relatively short and economical. 22. It appears from the material filed by the Applicant pursuant to orders 4 and 6 made by Justice Spender on 6 May 2004 (as amended) that the Applicant proposes to call no more than four (4) witnesses at the trial, namely: (a) Ms Maroochy Barambah; (b) Mrs Connie Isaacs (possibly); (c) Dr Rod Risher (historian); and (d) Mr Mark Cryle (historian).' 16 [I note that Mrs Connie Isaacs is very elderly, at least in her eighties; Dr Rod Fisher's report is of four pages.] '23. It appears from the Applicant's Points of Claim #2, filed on 9 December 2004 ("Points of Claim"), the Further and Better Particulars of the Points of Claim #2, filed on 7 February 2005 (the "Particulars") and the witness statements filed, that there are only three (3) Turrbal People who are said to have a relevant connection with the claim area, namely, Connie Isaacs, Maroochy Barambah and Arthur Isaacs. …' 17 [Ms Wooley provides references to particular parts of the Points of Claim and Particulars filed. Mr Arthur Isaacs is the brother of Maroochy Barambah.] '24. The State: (a) may rely on historical and other expert evidence, which would largely be in documentary form; and (b) will tender evidence regarding current interests and extinguishment of native title, which would also be largely in documentary form. 25. Apart from cross-examination, the time otherwise spent by the respondents at trial is likely to be short, as most if not all of their evidence is likely to be in documentary form. 26. Further, as I have noted at paragraph 11 above, Turrbal Part A covers 96 specified lots or parts thereof, comprising unallocated State land and State Forests. Accordingly, the number of other parties with interests in Part A, and therefore wishing to be involved in the trial of Part A, are likely to be much less than those who have interests in the whole of the Turrbal claim area. 27. As to paragraph 17(e) above, for the reasons that follow, I consider that a hearing of the whole Turrbal claim will not occur for several years, will be lengthy and will involve considerable expense. This is primarily because of the nature and extent of the overlapping claims, and the requirement of s 67 NTA.' 18 Section 67 of the NTA requires that where there are two or more proceedings before the Federal Court relating to native title determination applications that have overlapping areas: '(1) … the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding.' Importantly, s 67(2) of the NTA provides: 'Splitting of application area (2) Without limiting subsection (1), the order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings.' 19 Section 68 of the NTA provides: 'If there is an approved determination of native title (the first determination) in relation to a particular area, the Federal Court must not: (a) conduct any proceeding relating to an application for another determination of native title; or (b) make any other determination of native title; in relation to that area or to an area wholly within that area, except in the case of: (c) an application as mentioned in subsection 13(1) to revoke or vary the first determination; or (d) a review or appeal of the first determination.' 20 Ms Wooley, in the balance of her affidavit, notes that the other applicants whose claims overlap the claims of the Turrbal People have not particularised their claims, nor have they carried out the steps which are necessary in order to proceed to a trial. Ms Wooley contends that, particularly because both the Jinibara People's claim and the Jagera People's No. 2 claim are not lot or tenure specific and claim large areas of land, it will be necessary for the State to take a considerable amount of time to carry out tenure research and analysis, and that a full trial of the Turrbal People's claim with those overlapping claims would be lengthy and expensive. 21 I accept that this is so, particularly having regard to the extent of the areas of the claims, the fact that the claims which overlap the Turrbal People's claim are not limited to specific lots or tenures, that there are three competing groups, that there is likely to be a large number of parties affected by the totality of the areas of the overlapping claims, and that the parties other than the Turrbal People will need to call considerably more witnesses, including expert witnesses, than the relatively small number of persons contemplated by the Turrbal People in the prosecution of its claim. 22 The Turrbal People oppose the relief which the State of Queensland seeks by its notice of motion. 23 The State of Queensland filed submissions in support of its notice of motion, which submissions have been adopted and supported by the Pine Rivers Shire Council and the commercial fishing respondents. The Redland Shire Council also supports the submissions by the State of Queensland, as does the Commonwealth. The Jinibara People support the submissions of the State of Queensland, as does QLACCA and the Jagera People. 24 Other parties to the Turrbal People's claim, who did not appear on the motion, have written to the Court indicating their position in respect of the orders sought by the State of Queensland. The Port of Brisbane neither supports nor opposes the orders sought by the State of Queensland by its notice of motion. It wishes to reserve the right to participate on a limited basis in the Part A proceedings if the orders sought by the State of Queensland are made. Similarly, the petroleum interests neither support nor oppose the State's notice of motion. There is also a letter sent on behalf of Telstra Corporation Ltd indicating that Telstra supports the State's notice of motion. 25 The effect of s 67(1) and 68 of the NTA is that the Court cannot deal with the whole of the Turrbal People claim, in the sense of hearing and determining the claim, separately from the overlapping claims, or more precisely those parts of the other claims which overlap the area of the Turrbal People's claim. Those overlapping claims are a long way from being heard, and it is unlikely that they will be ready to be heard for some years. 26 In my judgment, by virtue of s 67(2) of the NTA and O 78 r 5(3) and O 29 r 2(a) of the Federal Court Rules, the Court has power to split the application covered by the Turrbal People claim into two proceedings, by providing that that portion of the Turrbal People's claim which is not the subject of other overlapping claims be dealt with in one proceeding, and the portion of the Turrbal People's claim area that is the subject of overlaps in further proceedings. Those further proceedings can only be heard and determined in the same proceeding as the hearing and determination of the claims of the other claimants in respect of the areas of overlap. 27 O 29 r 2(a) of the Federal Court Rules gives the Court the power to make orders for the decision of any question separately from any other question in the proceedings. The decision whether to make an order under O 29 r 2 depends on whether it is 'just and convenient' for the order to be made: Reading Australia Pty Ltd v Australian Mutual Provident Society and Anor [1999] FCA 718 at [9]. 28 I am satisfied that there is power in the Court to make the orders sought by the State of Queensland in its notice of motion, and I am satisfied on the material that it is just and convenient to make those orders. 29 Similar orders were made in June 2000 in relation to the Wik Native Title Determination application. In Wik Peoples v State of Queensland [2004] FCA 1306, Cooper J noted at [2]-[3]: '2. In June 2000 it was ordered that the claim be determined in two parts: Parts A and B. The lands in Part A were confined to lands that had always been unallocated Crown lands or lands that had only ever been subject to forms of title granted for the benefit of Aboriginal peoples. On 3 October 2000 Drummond J determined by consent that native title existed in the lands and waters within Part A of the claim. 3. Part B of the claim comprised the balance of the lands and waters of the claim area. The lands and waters in Part B contained lands held under pastoral and mining titles.' 30 The separation in the Wik People's application into Part A and Part B was to enable part of the claim to proceed to a determination (which was a consent determination) on 3 October 2000, leaving the balance, being the Part B (land and waters), to be dealt with separately at a later time. As it turned out, Part B of the claim also resulted in consent determinations. 31 Orders geographically separating native title determination applications so that part of the application can proceed have been made in the Gubbi Gubbi People's No. 2 claim Q6034 of 1999, an order made by Drummond J on 3 May 2001, although no written reasons were given by his Honour for the making of that order, and in the Gunggari People's claim. The order made in that case was referred to by Emmett J in Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [1]. 32 Reference may also be made to orders made by French J in James on behalf of the Matu People v Western Australia [2002] FCA 849 and the orders made by Beaumont J in Bodney v State of Western Australia [2001] FCA 297. 33 The orders proposed by the State of Queensland are consistent in my view with s67(2). Notwithstanding a submission by the State of Queensland that the orders sought by it do not have the effect of "splitting the proceedings into two proceedings", but rather "involve an 'administrative' separation of the present proceeding (QUD 6196 of 1998) into two parts, with one part (Part A) proceeding separately from, and before, the other (Part B)," the orders sought are not merely the hearing of "a separate question" in terms of O 29 r 2(a), but effect, at least in the terminology employed in s 67 of the NTA, the splitting of the Turrbal's People's claim into "two proceedings". What the orders seek to achieve, however, is that the Turrbal People's claim is separated into two parts, with one part, the claim in respect of the land contained in Turrbal Part A proceeding separately from, and ahead of, the Turrbal People's claim in respect of the land the subject of Turrbal Part B. 34 The Turrbal People, in their submissions, point to s 67(1) of the NTA in support of their submissions that 'the Jinibara, Jagera and Turrbal applications must be dealt with by the court in the same proceeding.' However, this is so only 'to the extent that the applications cover the same area.' As s 67(2) emphasises, it is possible to avoid the need to have overlapping applications heard in the same proceeding by making an order which provides that different parts of the area covered by the Turrbal People's application are to be dealt with in separate proceedings. 35 The Turrbal People also contend that separating the application into Turrbal Part A and Turrbal Part B is unjust, because the applicant has supplied its points of claim, further and better particulars, its evidentiary material and its statement of customary and cultural concerns, on the basis of the application for native title over the whole of the area and not over the area separated into two parts called Turrbal Part A and Turrbal Part B. 36 It is further submitted that separating the application into the non-overlapped area and the overlapped area is unreasonable because it would cause the applicant to incur additional costs in connection with the conduct of this proceeding. I do not accept that this is so. It is likely that if geographic separation of the Turrbal People's application be directed, the application in respect of the lands constituted by that in Turrbal Part A would be able to be determined expeditiously and relatively cheaply. If the Turrbal People's application is not geographically separated, it will be a very long time before that Turrbal People's application over the whole of the area can be heard, having regard to the requirements of s 67(1) of the NTA. 37 It is further submitted by the Turrbal People that the notion of separating their traditional homelands into Turrbal Part A and Turrbal Part B is at odds with the principles of the Turrbal laws and customs. 38 The fact is that a mediated outcome in respect of the whole area including overlaps is most unlikely. This is common ground. While it is true that separation into Part A and Part B will involve two trials instead of one, the first, in respect of Turrbal Part A, will be relatively inexpensive and is able to be determined in the immediate future. The prospect in respect of either the Turrbal Part B or of the whole area of the Turrbal People's application if separation does not occur, is likely to be quite delayed for many years, and will involve issues that are quite foreign from a determination whether native title exists in the Turrbal People in respect of the land the subject described as the Turrbal Part A land. 39 I acknowledge that the Turrbal People regard the orders sought by the State of Queensland as effecting a fragmenting of their claim to native title. In short, they want the whole of their claim to be heard at the one time. The Turrbal People assert that the external boundaries of their application are 'integral part of the Turrbal traditional homelands'. However, one realistically has to recognise that the Turrbal Part A area covers 96 specified lots or part lots and comprises unallocated State lands and State forests. The number of parties with interests in Part A, and therefore wishing to be involved in the trial of Part A, is certainly going to be much less than those who have interests in the whole of the Turrbal area. In particular, neither the Jinibara People nor the claimants in the Jagera People No. 2 claim assert any interest in the land which is Turrbal Part A. 40 There are in my view overwhelming reasons why the Court should make the orders sought in paragraphs 1, 2 and 3 of the State's notice of motion. I have had particular regard to the fact that hearing the whole of the Turrbal People's claim, together with the overlapping claims, faces very considerable delay. 41 I shall hear from the parties as to what further orders I should make concerning the progress of the hearing in respect of the land described as Turrbal Part A and in respect of the application insofar as it relates to land described as Turrbal Part B. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .