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

The first interlocutory application 3 The difficulty presented by each of the three individuals the subject of the first interlocutory application remaining a respondent in the principal proceeding is this. 4 Dr Redmond is a consulting anthropologist. Dr Redmond has provided a number of reports arising out of his research conducted between April 2010 and August 2012 and research thereafter, concerning the question of whether particular Aboriginal indigenous respondent parties to the application are descendants of an apical ancestor within the group of apical ancestors the descendants of whom comprise the claim group. 5 At para 10 of Dr Redmond's affidavit affirmed on 30 June 2014 and filed on 1 July 2014 he says this: I say and the fact is that my research discloses that each of the Aboriginal Respondent parties Marlon Nakachi, Allan Savage, Guy Savage, Isaac Savage (who has changed his name to Isaac Makaku) and Milton Savage is a descendant of the apical ancestor Ela/Illa who was the father of Tommy Dodd, Polly Polly and Tommy Somerset and who is included as such an apical ancestor in Attachment A to the Form 1 in this proceeding. It accordingly follows that each of such persons is already included as a member of the claim group in this proceeding. 6 Mr Isaac Makaku was present during the directions hearing on 14 August 2014. He appeared by telephone. He accepts that he is a descendant of the apical ancestor Ela/Illa and that he is a member of the claim group. Mr Allan Savage and Mr Milton Savage are also descendants of the apical ancestor Ela/Illa. Each of the three individuals became a respondent to the principal proceedings on the footing that they asserted native title rights and interests in the claim area. 7 Their native title rights and interests, however, are recognised as members of the applicant claim group. 8 None of the three identified individuals assert an interest that may be affected by a determination in the proceedings, as they are members of the applicant claim group. Moreover, they cannot be both an applicant asserting a right and a respondent asserting the same right, at the same time, in the same proceedings. 9 Accordingly, on 14 August 2014 the Court ordered, under s 84(8) of the Act that Mr Isaac E Makaku, Mr Allan Savage and Mr Milton Savage cease to be respondents to the principal proceeding. 10 During the course of the directions hearing, the Court identified orally, as these reasons also identify, the basis upon which the order under s 84(8) of the Act was made. 11 Apart from an order under s 84(8) of the Act, the applicant also seeks an order that Mr Makaku, Mr Allan Savage and Mr Milton Savage pay the applicant's costs of and incidental to the interlocutory application. That matter was reserved for further consideration. These reasons now address that matter. The application for costs is made having regard to the following seven matters. 12 First, the issue of whether it was appropriate for each of the three respondents to be or remain respondents in the proceeding since they were also recognised as members of the claim group, was raised with them, on the evidence, as long ago as 19 December 2012. 13 Second, the solicitors for the applicant wrote to each of the three respondents on 19 April 2013 advising them that they were part of the claim group and requesting that they withdraw from the proceeding as a respondent. 14 Third, arrangements were made for Mr Milton Savage to attend a claim group meeting but he chose not to attend that meeting. 15 Fourth, Mr Milton Savage and Mr Isaac Makaku were provided with an opportunity to meet with Dr Redmond and discuss their respective genealogies. 16 Fifth, late on the afternoon of Friday, 14 March 2014, Mr John Reeve, a Senior Legal Officer in the employ of Cape York Land Council Aboriginal Corporation, met with Mr Makaku and discussed the possibility of Mr Makaku executing a document described as "Notice by party, other than the applicant, that the party wishes to cease to be a party" (Form 106) by which he would cease to be a party to the proceeding, thus making an application to remove him as a party, unnecessary. Mr Reeve, in his affidavit sworn 30 June 2014, says that Mr Makaku told him that he would have signed the Form 106 submitted to him by Mr Reeve that day except for the fact that the name of the apical ancestor spelt on the document as "Tchiako" should have been spelt "Tchiaku". Mr Reeve says that Mr Makaku refused to allow any change to be made to the document by handwriting as that would be disrespectful to an ancestor and thus he insisted that the change must be made in a typed form and he would then sign the document. Mr Reeve says that he explained to Mr Makaku that as Mr Reeve would be travelling early the following Monday morning, 17 March 2014, to have similar forms signed by other respondent parties, it would not be possible to have the change made in a typed form before returning to Cairns in the course of the following week. 17 Mr Reeve says that despite numerous attempts to contact Mr Makaku since 14 March 2014, he has been unable to do so. 18 On 19 April 2013, the Cape York Land Council, by Mr Hales, Acting Principal Legal Officer, sent a letter to Mr Makaku noting that Mr Kerr, Solicitor of Preston Law, had ceased to act for Mr Makaku in the principal proceeding. Mr Hales referred to a meeting on 19 December 2012 with Mr Makaku's former legal representatives and the document sent to them which demonstrated that Mr Makaku was already included within the claim group as a descendant of the particular apical ancestor. Mr Hales pointed out that since Mr Makaku was demonstrably a member of the claim group, it was no longer appropriate that he remain a respondent and enclosed with the letter a Form 106 for execution and return to the Cape York Land Council in an enclosed reply paid self-addressed envelope. Mr Hales observed that if Mr Makaku was not prepared to sign the form and return it, the question of Mr Makaku's continuing role as a respondent would be referred to the Federal Court for the purposes of a case management conference. A similar letter was sent to Mr Milton Savage on 19 April 2013. 19 Mr Reeve says that on 30 April 2014 he posted a letter to Mr Milton Savage and a letter to Mr Allan Savage in which he observed that Dr Redmond's research confirmed that "two additional ancestors - Queen Baki and Chief Tchiako (sometimes spelt Tchiaku) - should be added to the list of apical ancestors" for the purposes of the s 61 application and that in the case of both Mr Milton Savage and Mr Allan Savage, each individual was already a member of the claim group being descendants from the apical ancestor Ela/Illa. Mr Reeve enclosed with each letter a copy of the relevant sections of Dr Redmond's report. Neither letter was returned to the Cape York Land Council as "unclaimed" mail. No response was received from either Mr Allan Savage or Mr Milton Savage. 20 On 28 May 2014, Mr Reeve caused a letter to be posted to Mr Milton Savage and Mr Allan Savage noting that no response had been received to the earlier letter. Mr Reeve enclosed a Form 106 for each addressee to sign together with a pre-stamped, self-addressed envelope returning the document to the Cape York Land Council for filing. Mr Reeve suggested that if the document was not received, the applicants would make an application to the Federal Court for an order that each addressee cease to be a party to the proceeding on the footing that each addressee was already recognised as a member of the claim group and it was no longer "tenable for you to remain a Respondent party in the proceeding". Mr Reeve also asserted that should an application to the Court be necessary, the applicant would seek an order that each addressee pay the costs of the applicant in being put to making an application to the Court for an order that the addressee cease to be a respondent. 21 On 28 May 2014, Mr Reeve caused a letter to be sent to Mr Makaku in which he observed that in the course of the earlier meeting on 14 March 2014, Mr Makaku had said that he had been prepared to sign a conditional self-executing Form 106 conditional on the addition of two further apical ancestors if the spelling in the prepared Form 106 of "Tchiako" was altered to "Tchiaku". Mr Reeve also observed that since that time he had been unable, despite numerous attempts, to make contact with Mr Makaku. Mr Reeve also pointed out that on a number of occasions it had been pointed out to Mr Makaku that he was already included within the claim group by reason of his being a descendent of the apical ancestor Ela/Illa. Mr Reeve also observed that having regard to these considerations it was no longer tenable for Mr Makaku to remain a respondent in the proceedings. Mr Reeve said that in a final attempt to secure Mr Makaku voluntarily ceasing to be a respondent party, he enclosed a Form 106 and requested Mr Makaku to date and sign the form and return it to the Cape York Land Council. Like the letters to Mr Allan Savage and Mr Milton Savage, a self-addressed pre-stamped envelope was enclosed with the letter. Mr Reeve also observed that if it became necessary to make an application to the Court for an order under s 84(8) of the Act, the applicant would seek an order for the costs incurred in being put to taking that step. 22 Mr Reeve says that his letter to Mr Makaku has not been returned to the Cape York Land Council "unclaimed" and no response to the letter has been received from Mr Makaku. 23 All of these matters are relied upon by the applicant as features of the fifth set of factors upon which an order for costs is sought. 24 The sixth factor is that all three respondents have been on notice of an application for costs, should that become necessary, since the letters of 28 May 2014. 25 The seventh factor is that so far as Mr Makaku is concerned, he was formerly known as Mr Isaac Savage and he has had personal experience of the process for joinder and removal of respondents and would be astute to the implications of a party being required to prepare applications and affidavits and, inferentially, the costs, time and effort involved in preparing and attending to service of such material and conducting a hearing about that matter. 26 Mr Makaku appeared on the interlocutory application by telephone. 27 Mr Makaku says that the Cape York Land Council has failed to assist him and other respondents including Mr Milton Savage and Mr Allan Savage in obtaining legal advice about their individual rights. Mr Makaku says that continuous requests had been made to meet with all respondents and Dr Redmond. Mr Makaku says that there has been a failure to secure certainty of inclusion of particular apical ancestors within the cohort of apical ancestors the descendants of whom would form the claim group. He says that there has been no opportunity for Milton Savage to meet with Dr Redmond. Mr Makaku accepts that there was a meeting with Mr Reeve and an issue arose about the correct spelling as Mr Reeve notes in his affidavit. Mr Makaku says that he has been anxious to ensure that particular apical ancestors have been identified and included and that he has been trying to meet with Dr Redmond in a more engaged way about these matters. 28 Nevertheless, the issue which has been alive for some time between the applicant and each of the three respondents now the subject of these proceedings is whether they are members of the claim group on the footing that they are descendants of the identified apical ancestor. For some considerable time it has been clear that each of them are members of the claim group as they are descendants of a recognised apical ancestor. For some time it has been clear that a determination of native title will not affect the interests of any of the three respondents because they are within the very group making the claim. There is no good reason why each individual could not have objectively and responsibly signed a document by which they would cease to act as a respondent once it became clear that there was simply no issue as to their membership of the claim group. Moreover, the affidavit evidence filed in support of the application suggests a reasonably high level of attempted engagement by the Cape York Land Council in seeking to deal with each of the three respondents on these issues. 29 Plainly, Mr Makaku, formerly Mr Isaac Savage, has sought to retain his position as a respondent so as to present an obstacle to the orderly progression of the claim with a view to securing acceptance of his preferred view about matters unrelated to his own individual position as a person asserting an interest which, on any view of the matter, is not affected by a determination of native title because those interests are precisely the same thing. 30 Section 85A(1) of the Act provides that unless the Federal Court orders otherwise, each party to a proceeding (including interlocutory applications in a proceeding) must bear his or her own costs. The Court retains its discretion as to costs conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). Without placing any statutory limitation upon the Court's power to make orders under s 85A(1), s 85A(2) provides that if the Federal Court is satisfied that a party to a proceeding has, "by any unreasonable act or omission", caused another party to incur costs in connection with the conduct of the proceeding, the Court may order such a party to "pay some or all of those costs". 31 These statutory provisions strongly suggest that the starting point in the exercise of the discretion as to costs is that each party will bear their own costs although, of course, there remains a discretion in the Court to order otherwise. One circumstance in which the Court might order otherwise is recited in s 85A(2) although that circumstance does not constrain the broad range of circumstances in which the discretion might be "otherwise" exercised. In exercising the discretion to order Party A to pay some or all of the costs Party B has incurred in the conduct of the proceeding, caused by any unreasonable act or omission of Party A, the Court does not exercise the power to award costs so as to punish Party A or as a public deterrent to others. The question simply is whether Party A has engaged in conduct which is properly described as any "unreasonable act or omission", and secondly, whether that conduct has caused Party B to incur costs in connection with the conduct of the proceeding. Once the Court is satisfied of those matters, the Court may order Party A to pay some or all of those costs although the discretionary power to do so taking account of those particular factors does not limit the scope of the discretion generally: Cheedy v Western Australia (No 2) (2011) 199 FCR 23 at [5] - [9], North, Mansfield and Gilmour JJ; McKenzie v South Australia [2006] FCA 891 at [7] and [8], Finn J; Reid v South Australia [2007] FCA 1479 at [51] - [54], Finn J; De Rose v South Australia (No 3) [2005] FCAFC 137 at [6] - [10], Wilcox, Sackville and Merkel JJ. 32 Was it unreasonable, on the evidence, for each of the respondents to continue to maintain a position as a respondent in the proceeding once it became clear, and was communicated to them, that they had been accepted as members of the claim group as descendants of the recognised apical ancestor? The answer to that question is yes. Did that conduct cause the applicant to incur costs in connection with the conduct of the proceeding that would not otherwise have been incurred and could have been avoided had each respondent not engaged in the unreasonable act or omission of failing to respond to the letters and failing to execute the Notice of Ceasing to be a Respondent? The answer to that question is yes. The Court is so satisfied of those matters. It seems to me a proper exercise of the discretionary power to order each of the three individuals to pay some of the costs the applicant has incurred in having to take steps in the proceeding to obtain an order that the three individuals cease to be a respondent. 33 This interlocutory application was listed for hearing together with a further interlocutory application filed by the applicant on 8 August 2014 in relation to two other respondents in respect of whom the applicant also seeks an order under s 84(8) of the Act. The second application was made necessary by contentions advanced by letter by the two respondents in issue (and another respondent) who the applicant sought to have removed as respondents and by the particular circumstances relevant to those respondents concerning the contended implications for them of a grant of land (of 6,356.26 hectares) within the claim area, in trust to the Northern Peninsula Area Regional Council, solely for Islander inhabitants (otherwise known as a Deed of Grant of Land in Trust). 34 In the exercise of the discretion as to costs, Mr Makaku, Mr Allan Savage and Mr Milton Savage ought to be ordered to pay at least some of the costs incurred by the applicant in being put to the unnecessary expense of preparing and prosecuting an application to the Court for a remedial order that the three respondents, whose interests are entirely unaffected by a determination in the proceedings, cease to be a party in the proceeding. The applicant ought not bear all of these costs incurred in the circumstances earlier described. 35 Such an order will provide at least some degree of compensation for the costs the applicant incurred in seeking and obtaining the remedial order. The order will be that those three individuals pay the costs of and incidental to the preparation and serving of the material relied upon by the applicant. I make no order as to costs in relation to the hearing itself notwithstanding that Mr Makaku continued to resist the making of an order at the hearing of the application. Making the proposed order for costs simply recognises that the applicant ought to obtain some degree of compensation for the costs incurred in seeking to achieve, what could so easily have been achieved, by each of the respondents responding to the correspondence and signing a Form 106 as prepared for them. 36 The material read on the application is this: interlocutory application filed 1 July 2014; affidavit John Reeve filed 2 July 2014; affidavit Anthony Redmond filed 1 July 2014; affidavit James Tapueluelu filed 31 July 2014; affidavit James Tapueluelu filed 6 August 2014; affidavit James Tapueluelu filed 12 August 2014.

The second interlocutory application 37 In the second application, the applicant seeks an order under s 84(8) of the Act that Thomas Jawai and Adeline Koroba each cease to be a party to the principal proceeding. 38 The background to the second application is this. 39 When the notification period for the proceeding expired on 15 August 2012, 12 individual respondents each identified their claimed "interest" under s 84(3) of the Act in the land and waters of the claim area (which might be affected by a native title determination in the proceeding), as an interest as a "member of the Bamaga People", being Saibai Island People who had been relocated to the "Bamaga area" within the claim area. All 12 respondents including Mr Thomas Jawai and Ms Adeline Koroba were then represented by Mr Kerr of Preston Law. 40 Dr Redmond notes in his report, Ancestral Connections of the Indigenous Respondents to the NCY #1 Native Title Claim dated 13 November 2013 (the "Report"), some aspects of the movement of Saibai Islanders to the mainland of Cape York Peninsula in the immediate aftermath of World War II. Dr Redmond notes at para 20 of the Report one of the recorded accounts of that migration (referenced at para 20 as Ober, Sproats and Mitchell, 2000:62) provided by an indigenous Saibai Islander. According to that account, three Islanders, Gebadi, Koroba and Anu approached the European superintendent at Saibai, Mr Turner, in 1938 and suggested relocation of Islanders to Cape York Peninsula. War then broke out. In 1947, Bamaga, the Headman or Mamoose of the Samu and Umai clans, and four other identified Islanders held internal discussions with other clansmen including the Chairman of Saibai, Mr Mugai Elu, about moving to the mainland. Mr Elu sanctioned the move. 41 Mr O'Leary, the Queensland Government's Director of Native Affairs, in 1947 agreed with the relocation. 42 The original site of the relocation of Saibai Islanders to Cape York was at Muttee Head. Mainland Aboriginal People also maintained settlements at that time at Muttee Head. 43 A community of Saibai Islanders had also arisen at Red Island Point (Seisia). 44 In 1948, the Government began construction of the new settlement at Bamaga. 45 The Saibai Islander population increased from approximately 150 in 1953 to over 600 in 1965. Apart from the Saibai Islanders and other Torres Strait Islanders located into the area, Government steps taken in 1960 saw forced migration (forced removal) of Aboriginal People from regions of Cape York further south, to the area. The records quoted by Dr Redmond at para 15 of the Report suggest that it was important for the people of Saibai Island to secure "full Government support" for the move to the mainland. 46 Mr O'Leary was apparently "an enthusiastic supporter of the concept of the people of Saibai moving to the mainland". Dr Redmond suggests that none of the written accounts of the migration indicate that any official Government consultations were ever conducted with the mainland Aboriginals (those then living at Cowal Creek). Dr Redmond suggests that these initiatives by the Queensland Government and also the Australian Commonwealth Government left very little room for consultation with Aboriginal People of Cape York. Dr Redmond also suggests that the Aboriginal People of Cape York responded, according to all accounts, "with a generous welcome despite their almost complete powerlessness in regard to the situation" (para 15). 47 Also in 1948 the Queensland Government acquired an area of 44,500 acres of the Cape York Peninsula for the purpose of providing accommodation for Torres Strait Islanders and Aboriginals. In that year the Queensland Government also secured an additional reserve of approximately 44,500 acres of country extending from Red Island Point to the boundary of Cowal Creek settlement on the seaboard and from Red Island Point to Kennedy Inlet on the east coast of the peninsula. 48 Dr Redmond also notes at para 22 of the Report that one of the effects of the migration of Saibai Islanders to the mainland was to further facilitate the existing patterns of intermarriage between mainlanders and more proximate Torres Strait Islanders which had preceded colonisation. These patterns of intermarriage between mainland Cape York Peninsula Aboriginal People and Torres Strait Islanders had been made possible by many centuries of trade between the mainland, Torres Strait Islands and southern PNG. 49 At paras 24 and 25 of the Report, Dr Redmond says this: 24. While these patterns of trade and intermarriage provided the possibility for some Torres Strait Islanders to become inducted into mainland Cape York Aboriginal kin and friendship networks, the mode of traditional recruitment to country in the NCY #1 claim area has always proceeded by way of descent, filiation from (and adoption by) known apical ancestors who themselves used, occupied and preserved kin-group proprietorial interests in those lands under the traditional laws and customs of the regional society (see Redmond 2012a for a detailed discussion of these modes of recruitment to local country groups). In this respect, any descendants of an intermarriage between Saibai person and a mainland northern Cape York ancestor attained rights and interests on the mainland only through their mainland ancestor under the traditional laws and customs of the NCY #1 claimant group as outlined in my NCY #1 Connection Report (Redmond 2012a). 25. The traditional laws and customs governing recruitment to local countries in the NCY #1 claim area, while containing provisions which permit the use of tracts of land by people other than the descent group affiliated with that tract of country, does not allow for permanent alienation of land to outsider groups. [emphasis added] 50 At para 29 of the Report, Dr Redmond notes the work of Sharp who recorded the mechanisms by which rights and interests in local patriclan estates could be extended to other people, predominantly close affinal kin, who were resident in those places. However, Sharp notes that such usufructuary rights are strictly differentiated from ownership rights and that all "contingent use rights could be withdrawn at the discretion of the local country group". 51 At paras 33 to 35 of the Report, Dr Redmond makes these observations: 33. According to local Aboriginal accounts, the Saibai Islanders who were relocated to Muttee Head and thence to Bamaga appear to have made some representations to senior local Aboriginal people seeking their goodwill and permission to remain on the lands to which the Australian and Queensland governments had relocated them. This was for the most part generously accommodated by the local traditional owners within their extremely limited legal capacity (as wards of the State which was itself effecting the migration) to make any enforceable or autonomous decisions about their own future. 34. What is clear is that the traditional laws and customs of the NCY #1 claimant group contain no provision for permanent alienation of lands other than extending contingent and revocable use rights to those not directly affiliated with the lands in question under the traditional laws and customs of the NCYP regional society. 35. The NCY #1 claimants have continued to assert their right to exclude others from areas where they have a properly acknowledged jurisdiction and a capacity to regulate access to country. … [emphasis added] 52 As earlier mentioned, 12 respondents to the native title determination application asserted a s 84(3) "interest" which might be affected by a determination, as members of the "Bamaga People" being Saibai Islander People relocated to the "Bamaga area" within the claim area. 53 On 28 February 2013, Mr Kerr ceased to act for them. 54 On 31 July 2013, the Gudang Yadhaykenu members (the "Gudang People") of the Claim Group met at New Mapoon. The Gudang People had invited the Bamaga respondents to attend a meeting with them the following day, 1 August 2013. Letters seeking to convene that meeting were sent by Mr Reeve to each of the Bamaga respondents on 23 July 2013. 55 Mr John Tabuai, Chairman of the Bamaga People Indigenous Corporation, responded saying that the directors of the Corporation would not be attending the proposed meeting on 1 August 2013. 56 On 8 August 2013, Mr Reeve had a conversation with Mr Tabuai. In that conversation, Mr Reeve, for the applicant, sought to assure Mr Tabuai that the native title determination application was a claim brought to the Court to establish the native title rights and interests of the claim group and not a procedural mechanism to "force Saibai/Bamaga people from the mainland or the Bamaga area". Mr Reeve observed that as the Saibai Islanders had demonstrated a connection with parts of the land and waters of the claim area only from approximately 1947 (and for other reasons identified by Dr Redmond), the Saibai/Bamaga People did not enjoy native title rights and interests in any part of the land and waters of the claim area. 57 Mr Reeve also said this, however: It is recognised that the Saibai/Bamaga People like the Aboriginal people from Mapoon who were settled at New Mapoon have historical rights and interests in part of the claim area - those rights are historical and are not Native Title rights and interests. We offered your former Lawyers wording which would recognise and acknowledge these historical rights and interests in any Determination. … It is clear from our conversation that your concern is with the Bamaga DOGIT and your rights and interests in the DOGIT land. The DOGIT is a title to land given by State of Queensland, now held by NPARC and is "prescribed DOGIT land" which is specially dealt with in Part 16, Division 1 (Section 192 to 196) of the Aboriginal Land Act 1991. Title to the DOGIT land is a form of statutory title given by the State and not Native Title which has existed from prior to first settlement. The Aboriginal Land Act was amended in 2011 to make special provisions regarding the Bamaga DOGIT lands for the specific purpose of protecting the rights and interests of the Saibai/Bamaga People in the context of a transfer of the Bamaga DOGIT lands. [emphasis added] 58 As the issues between the applicant and the Bamaga respondents remained unresolved, the Court convened a Case Management Conference on 5 March 2014. On 22 January 2014, Mr Wright of Preston Law advised the Court that he was acting for the Bamaga respondents. 59 By 5 March 2014, the applicant and the Bamaga respondents had agreed to excise from the claim area the towns of Bamaga and Seisa. Maps reflecting that position were to be exchanged. 60 In May 2014, Mr Wright sought assistance from Mr Krebs, the Principal Legal Officer of the Torres Strait Regional Authority, in engaging with the Bamaga respondents. 61 After the 5 March 2014 Case Management Conference, the applicant and the Bamaga respondents sought to agree the excision areas. A further Case Management Conference occurred on 30 May 2014. Another was set for 27 June 2014 and occurred on 24 July 2014. Between 2 July 2014 and 4 July 2014, a meeting took place in the Northern Peninsula Area of Cape York between the representatives of the applicant (those named as the representatives of the Claim Group) and the Bamaga respondents. Mr Wright, Mr Reeve and Mr McLean, the Cape York Land Council Principal Legal Officer, were present for parts of the meeting and waited outside the meeting area during other parts of the meeting. Mr Reeve gives evidence that during the meeting the representatives of the applicant and the Bamaga respondents reached an agreement. He says this at para 2(v) of his affidavit: This was an open meeting and at its conclusion it was common ground that an agreement had been reached between the Named Applicants and the Bamaga Respondents. 62 On 4 July 2014, Mr Reeve sent an email to Mr Wright attaching a draft Minute of Agreement which was signed by Mr McLean. Some issues emerged between Mr Reeve and Mr Wright, reflected in particular emails, concerning the content of the agreement or amendments to the agreement. 63 On 21 July 2014, Mr Reeve received a letter from Mr Wright dated 18 July 2014 attaching an amended Minute of Agreement. In that letter, Mr Wright said that Bamaga respondents John Tabuai, Clifford Wasiu, Timacoy Ober, Baticoy Bamaga, Gibson Gowa, Dick Joel Jacob, Wilfred Jawai, Harrison Atu, Ron Atu and Gerald Tamwoy had agreed that the amended Minute "reflects the agreement reached at the meeting on 3 July 2014". Mr Wright also said in his letter that once the lawyers re-joined the meeting on 3 July 2014, the participants "announced to us that an agreement had been reached between the parties". Mr Wright said in his letter that that agreement is reflected in the amended Minute of Agreement attached to his letter. 64 Mr Wright also said in his letter that Adeline Koroba and Thomas Jawai had not provided instructions regarding the Minute of Agreement and therefore Mr Wright was unable to execute the document on their behalf. He also said that once he received instructions from those two individuals he would advise Mr Reeve accordingly. 65 The Minute of Agreement recognises that the earlier agreement of the identified representatives of the applicant and the Bamaga respondents to excise from the claim area areas of land comprising the towns of Bamaga and Seisia was at an end and of no further effect (cl 1). By cl 2, the identified representatives of the applicant and the Bamaga respondents agreed to have included, in the schedule addressing "Other Interests" (Sch 4) in any proposed consent determination of native title rights and interests in the principal proceeding, a provision in these terms recognising other interests: 7. The rights and interests of the grantee and others (including beneficiaries) under the Bamaga Deed of Grant in Trust dated 31 May 2013 being Title Reference 50914971 and/or any Deed of Grant granted or re-granted in substitution for, replacement of or in succession to the said Deed of Grant. [emphasis added] 66 The applicant contends that by reason of the agreement described at [65] of these reasons, Thomas Jawai and Adeline Koroba, for the purposes of s 84(9) of the Act, no longer have an interest that may be affected by a determination in the principal proceeding. The applicant says that the existence of a binding compromise with the Bamaga respondents has the result that any determination made in the NCY #1 claim, consistent with the terms of the compromise, is incapable of affecting the interests of Thomas Jawai or Adeline Koroba as those individuals do not assert a claim other than as members of a group described as the "Bamaga People". The applicant says that the evidence of Dr Redmond establishes that the Bamaga People do not hold native title rights in the NCY #1 claim area deriving from incorporation into the NCY #1 Claim Group or by reason of any transfer of rights from that claim group to the Bamaga People. Moreover, the applicant says that neither Thomas Jawai nor Adeline Koroba has put on any material in answer to the interlocutory application which demonstrates that either of them have an interest that may be affected by a determination in the proceeding. 67 Thomas Jawai was present, by telephone, at the hearing of the interlocutory application. He said that he did not know about the meeting at which the agreement was made and that he wishes to seek legal advice about the issue. Issues have emerged as between Thomas Jawai and Adeline Koroba on the one hand and Mr Wright on the other, such that Mr Wright is no longer able to represent these individuals. 68 On 28 July 2014, Thomas Jawai sent an email to Mr Wright attaching a letter to Mr Wright of the same date signed by Mr Jawai, Ms Koroba and Mr Ron Jawai. In the email, Thomas Jawai says that he, Ms Koroba and Mr Ron Jawai have not been consulted about the "Bamaga negotiations" and each of them are disappointed that the process was conducted "without our direct involvement as respondents". They say that they do not support the proposed agreement arising out of the meeting as "it does not give us anything". They say that they are concerned about Mr Wright's position as the lawyer for the Bamaga respondents. They say in the email that they are very concerned about what is being proposed for the future of the Bamaga People under the agreement and that the agreement does not give the Bamaga People any "security over our community". They also say that their concerns would be put to "the TSRA Board as our NTRB, through … Mr Maluwap Nona". 69 In the attached letter dated 28 July 2014 under the letterhead "BAMAGA RESPONDENTS", they say that the agreement is not acceptable because there is insufficient "certainty about the protection of the 'other interests' arising under the DOGIT". In the letter they say this: The following points are particularly important:- 1. What are the rights and interests of the grantee and others (including beneficiaries) under each DOGIT? Determinations of native title should determine that question. Leaving things open and uncertain means there is a high risk of later disappointment and dispute. Different people will interpret the rights and interests in different ways unless they are clearly set out. 2. Under section 225(d) it is essential that a determination of native title also determine the relationship between the native title and the other interests (in this case the other interests in the DOGIT). The agreement does not contain any information at all about what the relationship is. It is impossible to start to describe the relationship without first knowing exactly what the rights and interests under the DOGIT are. What is proposed to address the requirement in section 225(d)? 3. Where such fundamental matters as the interests of beneficiaries under a DOGIT are concerned, it is common practice for the determination of native title to be supplemented by an Indigenous Land Use Agreement which sets out in both legal and practical terms what the post-determination arrangements between the native title holders and the other interest holders will be. Beneficiaries under a DOGIT need an ILUA in this case to give them certainty about how they can exercise their rights and interests and acquire any new interests in the future. 4. There should be discussion before the determination of native title about what happens when the DOGIT is transferred under the Aboriginal Land Act 1991. That will almost certainly happen at some time in the future. We should work out now what the affect will be on the residents of the DOGIT concerning the Bamaga and Seisia People. [emphasis added] 70 The letter concludes in this way: Please do not proceed with the agreement until these points have been properly addressed, and we also advise that the Bamaga People Indigenous Corporation is not authorised to make any decisions for or on behalf of any respondents of the Bamaga People. 71 The letter was copied to Mr McLean, Mr Krebs of the TSRA Native Title Office and Mr Maluwap Nona. 72 One of the particular concerns reflected in that letter is the notion that the Bamaga Deed of Grant in Trust lands will, at some point, be "transferred" under the Aboriginal Land Act 1991 (Qld) (the "Aboriginal Land Act") in a way prejudicial to the interests of the beneficiaries of the grant being those people who are not members of the native title claimant but rather the historical Bamaga/Saibai "Islander inhabitants" of the trust lands. Presumably, the concern is that a grant of "transferable lands" will be made to the native title claimant should a determination be made in favour of the claimant. 73 The Aboriginal Land Act at s 2, Sch 1, provides that the term "prescribed DOGIT land" means, among other land, land comprised in a "deed of grant in trust (title reference 21328057) for Bamaga". Thus, "prescribed DOGIT land" is defined in terms of the land comprised in the referenced deed rather than in terms of the deed itself. 74 The term "DOGIT land" under the Aboriginal Land Act is (among other things) land that was, at the beginning of the "enactment day" prescribed DOGIT land or, at the same date, land granted in trust under the Land Act 1962 (Qld) for the benefit of Aboriginal inhabitants: s 11(1)(a). 75 The enactment day means the date of Royal assent which was 12 June 1991: ss 1 and 2. 76 The term "transferable lands" is defined to include DOGIT land: s 10(1)(a). Thus, prescribed DOGIT land as at 12 June 1991 is DOGIT land so defined, and that land is "transferable lands". 77 At 12 June 1991, the land comprising prescribed DOGIT land the subject of the Deed of Grant in Trust for Bamaga under the Title Reference 21328057 was land the subject of a grant dated 27 October 1986. That land was described in the fee simple grant to the trustee, Bamaga Island Council, as Lot 7 on Plan S053 in the County of Somerset and the Parishes of Seymour and Cowal comprising approximately an area of "About 6,600 hectares". The grant was exclusive of particular improvements, exclusive of land used for particular purposes under the Land Act 1962, and exclusive of ingress and egress to and from those improvements and uses, except to the extent that such improvements and land so used was "expressly included" in the grant in trust and specified in the third schedule. 78 The third schedule described the expressly included improvements as: … buildings and structures provided for the residence of Islander inhabitants authorised to reside within the boundaries of the land comprised in this grant. 79 The grant was also exclusive of any land over which a lease had been granted under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld) (the "Land Holding Act") but only while the relevant lease remained in force. 80 The grant of the fee simple estate in trust to the Bamaga Island Council as trustee was also subject to the trusts, reservations and conditions specified in the instrument, and to the exclusions specified in the second schedule to the Deed of Grant and any other reservations and conditions contained within the laws of the State of Queensland and particularly the Community Services (Torres Strait) Act 1984 (Qld) and the Land Holding Act. 81 The "trusts" the subject of the grant are described in this way: The grantee to hold the said land in trust for the Benefit of Islander inhabitants and for no other purpose whatsoever. [emphasis added] 82 A series of reservations are recited in terms of mineral and petroleum entitlements, forest products, quarrying and reservations of particular areas of land to the Crown for public purposes. 83 On 30 May 2013, a Deed of Grant in fee simple of land described as Lot 12/S025, Lot 15/S028, Lot 76/S059, Lot 11/SP243595 and Lot 7/SP243595 was made under ss 358 and 42A of the Land Act 1994 (Qld) to the Northern Peninsula Area Regional Council in trust "to hold the said land in trust for the benefit of Islander inhabitants and for no other purpose whatsoever". 84 The grant was subject to the trusts, reservations and conditions specified in the grant and such other reservations and conditions contained in the laws of the State of Queensland, and to the reservations and conditions set out in the Deed of Grant Title Reference 21328057 (which is described in the 30 May 2013 grant as the "Original Deed of Grant"). The new title reference number is Title Reference 40066491. The Deed of Grant contains this note at the foot of the document: "Previous Title Reference: 21328057". 85 If the land comprised in the Deed of Grant Title Reference 21328057 is the same land as that comprised in Deed of Grant 40066491, the land will fall within the definition of prescribed DOGIT land. 86 The area of land the subject of the grant comprises an area of "About 6,536.2676" hectares. 87 There are no specified reservations nor any specified conditions recited in the Deed of Grant of 30 May 2013. 88 However, the clause intended to be included in Sch 4 ("other interests") of the proposed consent determination as set out at [65] of these reasons as drawn from the material, refers to a Bamaga Deed of Grant dated 31 May 2013 rather than the Deed of Grant dated 30 May 2013 and the Title Reference is described as "Title Reference 50914971" rather than the correct Title Reference of 40066491. 89 Part 4 of the Aboriginal Land Act contemplates a "Grant of transferable land as Aboriginal land" [emphasis added]. Section 38, within that Part, provides that the Chief Executive must prepare such deeds of grant in fee simple as the Minister considers necessary and directs over transferable lands. 90 The present relevant Chief Executive (concerning Pt 4 matters) is the Chief Executive of the Department of Natural Resources and Mines, and the relevant Minister for the purposes of Pt 4 is the Minister for that Department: Administrative Arrangements Order (No 1) 2014, s 2(2) and (3) and the Schedule at p 18. 91 The Schedule at p 24, however, also provides that the Minister for Aboriginal and Torres Strait Islander and Multicultural Affairs and the Minister Assisting the Premier, has administrative and portfolio responsibility for the Aboriginal Land Act: … to the extent that it is relevant to the transfer of land as Aboriginal land prior to the dedication of national parks (Cape York Peninsula Aboriginal land) under the Nature Conservation Act 1992 and associated transfers of land as Aboriginal land. 92 These matters, however, seem to have no relevant relationship with grants of transferable land under Pt 4 of the Aboriginal Land Act, as the "transfers of land as Aboriginal land" (at p 24 of the administrative arrangements) contemplate transfers of land relevantly related to the dedication of national parks. 93 Section 38(3)(a) provides that if the grantee of the transferable land appointed under s 39 of the Aboriginal Land Act is a "registered native title body corporate" ("RNTBC"), the deed must show that the land is held "for the native title holders of the land". Otherwise, if the transferable land is prescribed DOGIT land which is to be held for the benefit of Aboriginal people and Torres Strait Islanders particularly concerned with the land, the deed must show that the transferable land is held by the grantee "for the benefit of Aboriginal people and Torres Strait Islanders particularly concerned with the land, and their ancestors and descendants": s 38(3)(b)(ii). 94 Section 38(4) provides that if the grantee is a RNTBC appointed under s 39, the deed of grant must also "include information to identify the native title holders of the land". 95 Section 38 therefore contemplates a deed of grant in fee simple over transferable lands granted to a RNTBC, and, otherwise, a grant for the benefit of Aboriginal people and Torres Strait Islanders particularly concerned with that transferable land, and their ancestors and descendants, if the land is prescribed DOGIT land. 96 Section 39 of the Aboriginal Land Act applies to transferable land if a determination has been made under the Native Title Act 1993 (Cth) that native title exists in relation to all or part of the transferable land, and there is a RNTBC for the determination. 97 In those circumstances, the Minister may, with the consent of the RNTBC, appoint that body corporate to be the grantee of the transferable land under a deed of grant prepared by the Chief Executive under s 38. If the Minister does so appoint, the body corporate holds the land "for the native title holders of the land the subject of the determination": s 39(3). 98 In considering whether to appoint a RNTBC as grantee, the Minister may have regard to any matter he or she considers relevant to the proposed appointment including whether the making of the proposed appointment was a matter relevant to the native title claim that resulted in the determination that native title existed in relation to all or part of the transferable land; and, whether any Aboriginal people particularly concerned with the land, other than the native title holders of the land, may be adversely affected by an appointment of a RNTBC; and, if the Minister is concerned of such an adverse affect, the Minister may have regard to any action the RNTBC intends to take to address the concerns of Aboriginal people. 99 So, the concern seems to be that the lands the subject of the Bamaga 30 May 2013 DOGIT (being lands held on trust for the benefit of the Islander inhabitants and for no other purposes whatsoever) may fall within the meaning of "transferable lands" for the reasons earlier identified, and once a determination of native title rights and interests of the kind set out in the s 61 application is made in favour of the claimant over the claim area (including the 30 May 2013 Bamaga DOGIT land), the Minister might purport to consider it "necessary" to "direct" and "appoint" the RNTBC (engaged for the purposes of the determination) to be the grantee of transferable lands comprising the Bamaga DOGIT land, to the claimant. In that case, the RNTBC would hold the Bamaga DOGIT land for the benefit of the native title holders of the land by reason of the determination. 100 There are, however, at least three considerations that suggest that such a result cannot occur. 101 First, plainly enough, the legal position is that the land the subject of the Bamaga DOGIT of 30 May 2013 is land held on trust for the benefit of the Islander inhabitants and for no other purpose whatsoever. It would be an odd result for the Minister to consider it "necessary" to act under ss 38 and 39 of the Aboriginal Land Act to effect a grant of the Bamaga DOGIT land, held solely for the benefit of the beneficiaries of the trust, to the Aboriginal native title holders under the proposed determination. 102 Second, the proposed determination is intended to expressly recognise (although it may not do so accurately as presently proposed) an "other interest" subsisting in that part of the land and waters of the claim area (being the Bamaga DOGIT land) that that land is held solely for the benefit of the Islander inhabitants and for no other purpose. 103 Third, s 47A(3)(a)(i) of the Native Title Act 1993 (Cth) provides, in the circumstances of the proposed determination, that the determination does not affect the validity of the grant or vesting or the creation of the trust in favour of the Islander inhabitants. The proposed determination is intended to expressly recognise that position and, for the purposes of s 225(c) and (d) of the Native Title Act, the relationship between the native title rights and interests as determined and the interests of the Islander inhabitant beneficiaries under the trust is such that the Bamaga DOGIT land will continue to be held "for the benefit of the Islander inhabitants and for no other purpose whatsoever". 104 There is no inconsistency between the grant under the State Act in respect of the Bamaga DOGIT land within the claim area and the determination of native title in the claim area in the claimant under the Native Title Act, because the Commonwealth Act by s 225(c) and (d) provides for the determination of the relationship between the two sets of rights and the Bamaga DOGIT land will continue to be held solely for the benefit of the Islander inhabitants notwithstanding the determination of native title in the land and waters of the claim area in the claimant. 105 Nevertheless, Thomas Jawai (and also, I assume, on behalf of Adeline Koroba) wishes to seek legal advice as to their position should a determination of native title be made as proposed. Having regard to the nature of the interests under the trust concerning the Bamaga DOGIT land, the provisions of the Aboriginal Land Act as discussed in these reasons and the proposed relationship between the claimant's native title rights as might be determined, and the interests of the beneficiaries as historical Islander inhabitants of the Bamaga DOGIT land, I propose to provide Mr Thomas Jawai and Ms Adeline Koroba with an opportunity to obtain legal advice as to their position. 106 I propose therefore to adjourn the interlocutory application to enable that step to be taken. 107 The interlocutory application will be re-listed by the Court after discussions between the Court and the parties, in due course. I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

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Judgment (29 paragraphs)

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Legislation Cited (7)

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