Woosup on behalf of the Northern Cape York Group #1 v State of Queensland [2014] FCA 1086 | Case summary

Solicitor for the Cook Shire Council, Northern Peninsula Area Regional Council, Ron Jawai, Jacqueline Elizabeth Mulholland, John Michael Mulholland, Harrison Atu, Ron Atu, Baticoy Bamaga, Gibson Gowa, Dick Joel Jacob, Wilfred Jawai, Timacoy Ober, John Tabuai, Gerald Tamwoy and Clifford Wasiu: Mr M Wright, Preston Law

EX TEMPORE REASONS FOR JUDGMENT 1 This is an application which has been re-listed from 22 August 2014 for hearing and determination this morning. 2 It is an interlocutory application which was filed on 8 August 2014 and by that interlocutory application, the applicant seeks an order that Mr Thomas Jawai and Ms Adeline Koroba be removed as respondents from the proceeding pursuant to the exercise of discretion conferred under s 84(8) of the Native Title Act 1993 (Cth) (the "Act"). 3 The observations I make this morning on this topic should be read in conjunction with the reasons for judgment delivered in the proceeding on 22 August 2014: Woosup on behalf of the Northern Cape York Group #1 v State of Queensland [2014] FCA 910. 4 In the course of the reasons published on 22 August 2014, I explained why it seemed to be the position that both Mr Jawai and Ms Koroba did not have an interest that could be affected by a native title determination under the Act. I do not propose to repeat in the course of these observations this morning, the views I expressed in the published reasons on that question. However, regard ought to be had to [37]-[107] of those reasons and in particular [99] to [104] of those reasons. 5 The proposed consent determination in this proceeding has been the subject of many directions hearings and case management conferences. The parties have expended considerable resources in advancing the matter to the point where the applicants are in a position to reach final agreement with all those parties who have an interest which might be affected by a consent determination. 6 On this morning's application further affidavits have been read in support of the application and leave is sought by the State of Queensland to read the affidavit of Mr Geoffrey Owen Renouf sworn 2 October 2014. Leave is given to read Mr Renouf's affidavit. In that affidavit, Mr Renouf deposes that on 30 May 2013 the Bamaga Deed of Grant in Trust ("Bamaga DOGIT") was re-granted by the Governor in Council as a result of a road realignment within the town area in accordance with s 109A of the Land Act 1994 (Qld). A copy of the new Bamaga DOGIT is exhibited to Mr Renouf's affidavit as Annexure "GOR2". 7 When the material read on the application is considered, it is perfectly clear that having regard to the definition of "other interests" for the purposes of the proposed consent determination, the interests of Mr Jawai and Ms Koroba are entirely protected by the Bamaga DOGIT taken in conjunction with the express reference to that instrument as an "other interest" for the purposes of the consent determination. I am also satisfied that it is appropriate to remove both Mr Jawai and Ms Koroba from the proceeding not only because they now have no interest that can be affected by the proposed consent determination having regard to the proposed terms of the consent determination, but continued agitation of their claims of an interest affected by the proposed determination (and the contended need to negotiate an Indigenous Land Use Agreement ("ILUA")) is not in the interests of justice as the parties who have an interest have expended considerable resources to reach this point. 8 The interests that Mr Jawai and Ms Koroba have, as indigenous persons occupying particular land, is entirely protected by the Bamaga DOGIT recognised in the proposed consent determination. They are not individuals who have native title rights for the purposes of the Act. 9 I am satisfied that it is appropriate to remove these two individuals as respondents to the proceeding. 10 The other matter that should be mentioned is that relatively recently (6 October 2014) a document was transmitted to the Registry of the Federal Court which seems to have initially borne the date 20 September 2014 but now appears by a handwritten change to bear the date 29 September 2014. It is a document under the letterhead of the "Bamaga People Indigenous Respondents". It is a document signed by eight individuals including Mr Jawai and Ms Koroba. Each of the signatories to that letter purports to withdraw from an agreement which was reached by particular respondents described as the Bamaga Respondents to the s 61 application. As to the agreement in question see [61]-[66] of the reasons published on 22 August 2014. 11 Counsel for the applicant objects to receiving the 29 September 2014 document into evidence. Nevertheless, I am willing to receive this document into evidence for the purposes of the record on the hearing of the interlocutory application this morning. However, it seems to me that the only relevant question for this morning is whether Mr Jawai and Ms Koroba ought to be removed as that is the only relief sought by the interlocutory application. I make no order in relation to the six other individuals whose names are Mr Timacoy Ober, Mr Batacoy Bamaga, Mr Dick Jacob, Mr Harrison Atu, Mr Ron Atu and Mr Gibson Gowa. 12 I am satisfied that it is a proper exercise in the discretion to remove Mr Jawai and Ms Koroba. 13 Now I propose to discuss further in a moment any other questions that might arise in relation to any of the other signatories to the letter of 29 September 2014. However, for present purposes in terms of the interlocutory application as filed, I am satisfied that it is a proper exercise of the discretion under the Act to remove Mr Jawai and Ms Koroba as respondent parties to the s 61 application for the reasons mentioned today taken in conjunction with the reasons published on 22 August 2014. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Woosup on behalf of the Northern Cape York Group #1 v State of Queensland

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