Turrbal People v State of Queensland

REASONS FOR JUDGMENT 1 I have before me a notice of motion filed by the applicant in these proceedings, seeking leave to amend the application in proceeding QUD 6196A of 1998 in accordance with the proposed amended application as an exhibit to the affidavit of Dale Patrick Brown sworn on 1 February 2006 and filed herein, being annexure 'DPB1' to that affidavit. 2 This matter has had a somewhat unfortunate history. 3 In the original application filed in May 1998 the area covered by the application is described in A6 of that application by a boundary description, with the following exemption: 'Claimed Lands Subject to 6 below, within the area described above, native title rights are claimed only in relation to:- 1. Unallocated State Land 2. State Forests 3. Reserves, including Timber Reserves 4. National Parks 5. Lands and waters held by the Brisbane City Council, the Pine Rivers Shire Council or the Logan Shire Council, either as trustee or otherwise, that are used or set aside for park, recreational or similar purposes. 6. Parts of the lands and waters described in 1-5 above that are or have been:- · subject to a valid grant of exclusive possession to a private party; or · validly used in a manner that is wholly inconsistent with the continued existence of native title are excluded from the lands and waters claimed in 1-5.' Subsequently, the reserves were excised from the claimed lands. Later still, a motion seeking reinstatement of the reserves was filed, but was abandoned in the course of the hearing of the motion. 4 The amended application sought by the applicant describes, by lot or plan number, in 68 named lots, the reserves which are sought to be introduced into the land in part A of the Turrbal application. Within those 68 parcels there are subgroups which are identified in pages 6, 6A and 6B of 'DPB1' as being contained in what is referred to as the Sandgate group, the Pine Rivers group, the Turrbal Dreaming group, the Brisbane River group, the Mount Coot-tha group, Tingalpa group, and the Burrum Dreaming group. 5 The exemption or exclusions in the proposed amended application is as follows: 'The following areas covering previous exclusive possession act are not claimed in this application: Section 23B defines previous exclusive possession act as follows - (1) Grant of freehold estates or certain leases etc. on or before 23.12.1996; (2) An act is a previous exclusive possession act if: (a) It is valid (including because of Division 2 or 2A or Part 2); and (b) It took place on or before 23 December 1996; and (c) It consists of the grant or vesting of any of the following: i. A Scheduled interest; ii. A freehold estate; iii. A commercial lease that is neither an agricultural lease nor a pastoral lease; iv. An exclusive agricultural lease or an exclusive pastoral; v. A residential lease; vi. A community purpose lease, except for those leased to, or for the benefit of, Aboriginal peoples and Torres Strait Islanders; vii. What is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to '1 January 1994' were instead a reference to '24 December 1996'; viii. Any lease (other than a mining lease) that confers a right of exclusive possession over particular lands and waters. (3) If: (a) By or under legislation of a State or Territory, particular land or waters are vested in any person; and (b) A right of exclusive possession of the land or waters is expressly or impliedly conferred on the person by or under the legislation; The vesting is taken for the purposes of paragraph (2)(c) to be the vesting of a freehold estate over the land or waters. (4) An act is a previous exclusive possession act if: (a) It is valid (including because of Division 2 or 2A); and (b) It consists of the construction or establishment of any public works that commenced to be constructed or established on or before 23 December 1996. · The area cover by this application does not include any area where native title has been validly extinguished except to the extent that the extinguishment is required to be disregarded under section 47, 47A or 47B. · This application does not include any areas subject to a previous exclusive possession act defined under section 23B of the Native Title Act save where the Act and/or the common law allows those lands to be part of a Native Title Determination Application. · The application does not include a claim for exclusive possession over previous non-exclusive possession act areas as defined in section 23F of the Act save where the Act and/or the common law allows such a claim t be part of a Native Title Determination Application.' 6 There is no identity between what is said to be 'not claimed' in the amended application and what is said to be expressly excluded in the original application, being those parts of the lands and waters that are: 'are or have been… validly used in a manner that is wholly inconsistent with the continued existence of native title.' 7 This description of 'operational inconsistency' of lands and waters, which pre-dates Western Australia v Ward (2002) 213 CLR 1, is not co-terminus with a previous exclusive possession act. This point may have significance, because s 64 of the Native Title Act 1993 (Cth) deals with the amendment of applications. 's 64 Amendment of applications Application may be amended to reduce land or waters covered (1A) An application may at any time be amended to reduce the area of land or waters covered by the application. (This subsection does not, by implication, limit the amendment of applications in any other way.) Note: If such an amendment is made, the Court may make an appropriate costs order under section 85A. Amendment not to result in inclusion of additional areas (1) An amendment of an application must not result in the inclusion of any area of land or waters that was not covered by the original application. Note: The Federal Court Rules provide for the amendment of applications. Exception to subsection (1) (2) However, if: (a) the application is a claimant application (see section 253); and (b) the amendment combines the application with another claimant application or claimant applications; subsection (1) does not prevent the inclusion of any area of land or waters covered by the other application or applications. Application may be amended despite section 190A consideration (3) In the case of a claimant application, the fact that the Registrar is, under section 190A, considering the claim made in the application does not prevent amendment of the application. Registrar of the Federal Court to give copy of amended application to Native Title Registrar (4) If an application is amended, the Registrar of the Federal Court must, as soon as practicable, give a copy of the amended application to the Native Title Registrar. Group applications - amendment to change applicant (5) If a claimant application, or a compensation application whose making was authorised by a compensation claim group, is amended so as to replace the applicant with a new applicant, the amended application must be accompanied by an affidavit sworn by the new applicant: (a) that the new applicant is authorised by the other persons included in the native title claim group, or the compensation claim group, to deal with matters arising in relation to the application; and (b) stating the basis on which the new applicant is authorised as mentioned in paragraph (a).' 8 Having regard to s 64 subs (1), it seems to me that the possible difficulty that flows from the way the exclusion in 6 of the original application is expressed, compared with what is said not to be covered by the claim in the amended application, can be met by granting the application to amend in the terms sought, but adding the proviso that: 'No area or land that was not covered by the original application is to be included in the amended claim.' 9 In my opinion, the reference to 'application' in s 64(1)(a) means the application as the application is from time to time. This is an application to restore to areas of a claim to lands which were in the original application but which are not in the application as it presently is before the court. There is therefore, in the present application, no right in the applicant to amend relying on s 64(1)(a). This application falls to be determined, it seems to me, on the more general provisions of amendment under the Federal Court Rules, in particular O 13 r 2. 10 That conclusion is reinforced, in my view, by the reference in s 64(1) to the 'original application'. 11 There is nothing in Walker v State of Queensland, an unreported judgment of Allsop J [2004] FCA 640, which points away from that conclusion. In par 10 of His Honour's reasons in respect of an application by an applicant to excise the land of four pastoralists from the application, His Honour said: '10… Considerable time, effort and costs have gone into the claim insofar as it relates to the four pastoralists: time and effort and money of the four pastoralists themselves, the applicant, the Court, and the Native Title Tribunal all funded by public funds both Commonwealth and State. If this were a usual piece of litigation I would not allow a withdrawal and discontinuance at this stage other than on the clearest terms that no further proceeding could be brought. Given the structure of the Act that is not possible. Section 64(1)(a) is in the following terms - 'An application may at any time be amended to reduce the area of land or waters covered by the application. (This subsection does not, by implication, limit the amendment of applications in any other way.)' 11. The plain structure and meaning of those words is in my view to give a statutory right to amend the claim to reduce the area of land or waters covered by the application.' 12 In my opinion, as in s 64 itself, the word "application", unrelieved by the adjective 'original' or 'claimant', means the ambulatory application, that is, the application as it is at any particular time. 13 The question of amendment, it seems to me, comes down to one of discretion. 14 There are a number of matters that can be said in favour of granting the amendment sought. The original application had some 935 reserves included in it, although they were not identified by lot description. The present application relates to 68 or perhaps 67 specified reserves. That reduction in number is the consequence of a great deal of detailed and considered work in relation to the compilation of the present amended application. There is before the court material which at least points to a credible claim in respect of the land in the proposed amended application. There is at this stage no evidence to contradict the material going to the bona fides and merits of the amended claims. Thus the resolution of today's question is in the context of a bona fide, credible claim, a claim that is not devoid of any merits of ultimate success. The matter simply falls to be determined on the basis of discretionary factors. 15 What is suggested by the Crown in opposition to the amendment is that there is nothing to stop the applicants making a fresh claim in respect of the 68 reserves. It is accepted that such a new claim would need to have work done on it in respect of the requirements of the Act as well as in respect of notification and the likely involvement by other parties. There will be tenure history research in respect of those 68 claimed reserves which, according to the State, could take some 12 months. The claim by the State is that it is better that the matter proceed unamended in respect of the Part A matter, and then a second claim in respect of the proposed new reserves follow down the track. 16 For the applicant, it is conceded that should some of the reserves be reinstated, delays in the current programming orders bringing Part A to trial will occur, amongst other things, by reason of the need for the amended application to be re-notified. There is also a need to pursue re-registration, although that may not cause additional delay. The delays are, it seems to me, not inconsiderable and have to be weighed in the context of the whole history of the matter to date. 17 It seems to me that the fundamental matter to be considered is the desirability under the general law, and in particular by the provisions of the Act itself, to avoid a multiplicity of claims if that is at all possible. 18 The observations of Lee J in Champion v Premier and State of Western Australia [1999] FCA 581 are apposite. There were before the Court motions to combine a total of 18 Native Title claimant applications to reduce the applications to three. The object of the motions was described by His Honour as: "To give effect to an accord said to have been reached between the parties to the applications to reduce eighteen applications to three." 19 His Honour said, in par 3: "It is obvious that the object of the motions meets the requirements of s 22 of the Federal Court of Australia Act 1976 (Cth) for the exercise of the jurisdiction of the Court, namely, that multiplicity of proceedings be avoided in respect of matters before the Court. It is also consonant with the underlying purpose of amendments to the Act affected by the Native Title Amendment Act 1988 (Cth), namely, that separate litigation of overlapping claims be discouraged and that the consolidation of such claims into single claims be promoted (Explanatory memorandum, par 35.38; cf s 202(6) of the Act)." He said in par 10: "It is obvious that it would be undesirable for multiple separate determinations of the interests of a native title claim group be made in respect of the area over which native title is claimed in the application lodged by that claim group." 20 Unlike here, the motions before His Honour were not opposed. Also, I am not presently concerned with overlapping applications, but with the probability of successive proceedings to parts of the same non-overlapped area by a single claimant. That seems to me to reinforce the desirability of giving effect to the avoidance of multiplicity of proceedings, recognising, nonetheless, that there will be a postponement of the final resolution of the matters. 21 Giving effect to the matters that I raised above and the other matters that I have discussed with counsel, it seems to me that as a matter of discretion, I ought to give leave to amend the application in accordance with annexure 'DPB1' to the affidavit of Dale Patrick Brown sworn 1 February 2006 and filed herein, subject to the proviso that such amendment is not to include any area of land or waters that was not covered by the original application in May 1998. 22 I order that the proposed application stand as the amended application and the filing of the amended application be dispensed with. It seems to me that a further copy of the amended application with the typographical errors identified and corrected should be filed and served on the parties to the Part A proceedings. 23 There will be no order as to the costs of the motion to amend. I certify that the preceding twenty three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.