Wulgurukaba People #1 v State of Queensland

Federal Court of Australia|2002-12-13|Before: Kiefel J, Drummond J

1 By the amended notice of motion filed 21 May 2002, the applicants seek to amend their native title claimant application QG 6221/98 in the respects set out in the proposed amended application exhibited to the affidavit of their solicitor, Mr Owens, filed 2 May 2002. It is said that these amendments are necessary in order to remedy deficiencies in the claimant application identified by Kiefel J in State of Queensland v Hutchison [2001] FCA 416 and "to generally update the … Application in accordance with currently accepted practice in these matters". 2 The Townsville City Council ("the Council") opposes only the amendments to Schedules E, F, G, M and N to the claimant application. The other parties to this application either consent to or do not oppose all the amendments. 3 The claimant application was accepted for registration by a delegate of the Registrar of the National Native Title Tribunal ("the NNTT") on 8 September 1999. The State of Queensland sought review of this decision in the Federal Court. In Hutchison, Kiefel J ordered that the decision of the delegate of the Registrar of the NNTT be set aside and that the matter be remitted for determination according to law. 4 The applicants say that the amendments sought by the motion are in response to advice given by the NNTT that the application would have to be amended and resubmitted for registration as a result of the Hutchison decision and in response to other concerns expressed by the NNTT in discharge of its duty under s 190A(5A) the Native Title Act 1993 (Cth) which states:

5 The communications between the applicants' representatives and the NNTT in relation to this matter are set out in the affidavit of Mr Owens filed 19 June 2002. 6 In Hutchison, the State of Queensland sought review of the delegate's decision on two bases: "that it was not afforded procedural fairness, as some materials used by the delegate were not provided to it for comment; and because the application was uncertain in its reference to whether certain land was excluded from the claim". 7 As to the first ground of review, Kiefel J held that without the two affidavits dealing with the factual basis for the claim and directed to satisfying ss 62(2)(e) and 190B(5) that were provided by the applicants to the NNTT on a confidential basis, but not to the State, the application could not have complied with the registration test requirements in s 190B(5) or those for an application imposed by s 62(2)(e). Her Honour said that the information in these affidavits should have been "notified to the Court and the parties in the manner prescribed, which is to say by a process of amendment". Because this procedure had not been followed and the State was deprived of the opportunity it should have been given to deal with the information, either by opposing the making of the amendment or of commenting on it during the registration process, the delegate's decision was flawed with error of law. 8 As to the second ground of review in Hutchison, the State argued that reference to s 47B ("Vacant Crown land covered by claimant applications") in defining the areas claimed in Schedule E and Attachment B to the application had rendered the claimed area uncertain. The State contended that because s 47B can operate so that extinguishment of native title rights and interests by the creation of prior interests may be disregarded, "it could not be said, with reasonable certainty, whether native title rights and interests are claimed in relation to the area because of the operation of the proviso. The requirements of s 190B(2) could not, as a matter of law, be satisfied". Kiefel J said that she did not understand this second ground for review to be pursued. She added, however, at par [35]:

It does not seem to me that what is here complained of is related to concerns regarding the certainty of the description of the land and waters identified in connection with the rights and interests claimed, as s 62(2)(a) and (b) and s 190B(2) require. It stands as a reservation of position which, it would seem, the delegate has largely ignored as relevant at this point. Whether it can and will be pursued will depend on the outcome of further tenure searches. The State's contention is simply that the respondents should now make plain whether there will be a challenge to the validity of the dedication or reserve. This does not in my view create uncertainty of description and no error of law on the part of the delegate is identified.

9 Amendment of a native title application is governed by the Federal Court Rules as qualified by s 64 the Native Title Act. The Court has wide powers of amendment under O 13 r 2 the Federal Court Rules. The amendments sought are not barred by s 64. 10 The Council's main argument for opposing the amendments it objects to is that, if amended, the claimant application would not conform with the mandatory requirements for native title applications set out in s 62(1) and (2) the Native Title Act and that further amendments would be necessary before registration because of the requirements of sections 190A(6) and 190C(1) and (2). The Council's objections to amendment, in so far as they are based on the proposition that, if allowed, the claim could still not pass the registration test, cannot justify the refusal of leave to amend, if otherwise proper. A failure to obtain registration does not affect the entitlement of the applicants to pursue their claim in this Court.

Schedule E 11 The only significant amendment sought to Schedule E is to broaden the description of native title rights and interests claimed from the rights "to possess, occupy, use and enjoy the claim area", already claimed by item 1 of the current Schedule E, to a claim to those same rights "as against the whole world". The current Schedule E, by item 4, expressly claims "possession" "as against the whole world" and the other claims in this Schedule are consistent with the broad-ranging exclusive rights claims proposed to be raised. The applicants' solicitor says that the current wording of Schedule E is a drafting error and that the true intention of the applicants was to seek all the native title rights and interests claimed "as against the whole world". I see no reason to doubt that: the applicants' original application of June 1998 (of which the application in its present form is itself an amended version) claimed an entitlement, among other things, "as against all the world to the possession, use and enjoyment of [the applicants'] country". There is nothing in the current application that would negate such an intention. 12 As to the first part of the proposed Schedule E, viz, the positive definition of the native title rights and interests claimed, the Council argues that the amendment to Schedule E is prohibited by ss 62(1)(b) and (2)(d) in that it does not contain "a description of the native title rights and interests claimed" and "a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests)". The decision of French J in Strickland v Native Title Registrar (1999) 168 ALR 242 at 260 - 261, affirmed by the Full Court, particularly at (2000) 99 FCR 33 at 53 - 55, is authority that the broadly-worded claim proposed to be made by the applicants is consistent with the requirements of s 62(2)(d). 13 The Council submitted that it would be prejudiced by the widening of the claim by the proposed amendment to Schedule E: it was argued that the schedules that follow Schedule E, which refer to it, do not support, ie, are not consistent with, a claim in the wide terms sought by the amendment. No anthropological evidence was put before the Court and the proposed Schedules F, G and M would not by themselves support a determination of rights in relation to the claim area to possession etc as against the whole world. But those schedules do set up some basis for a claim of native title in the terms proposed and are not inconsistent with the existence of native title in those terms. The Council also submits that if the amendments are granted and the application proceeds to trial, the Council would be uncertain as to exactly what is being claimed. But if trial goes ahead, it will be on pleadings and the Council will be in possession of all the material it will require for a fair hearing, long before the trial date. 14 As to the second part of the proposed Schedule E, the amendments sought respond to the comments made by Kiefel J in Hutchison and the concern the Crown had, but did not pursue, in relation to the reference to s 47B in Schedule E. The amendment clarifies the applicants' position in that regard. The Council did not oppose that amendment. 15 The amendments to Schedule E proposed will therefore be allowed.

Schedules F and G 16 Schedules F and G are included in the application in order to comply with the following provisions of s 62(2), which require that a claimant application must contain:

(e) a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:

(i) the native title claim group have, and the predecessors of those persons had, an association with the area; and

(ii) there exist traditional laws and customs that give rise to the claimed native title; and

(iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;

(f) if the native title claim group currently carry on any activities in relation to the land or waters - details of those activities.

17 As it currently stands, Schedule F does not contain any description of the factual basis for the asserted existence of the native title rights and interests claimed. See also Kiefel J in Hutchison at par [18]. Schedule G suffers a similar flaw in that the "details" it gives of the activities currently being carried out by the native title claim group are described only as "activities consistent with the rights and interests claimed in Schedule E" of the application, without any description as to what those activities are. 18 The applicants seek to rectify these defects by incorporating in proposed Schedules F and G the new attachments F1 and F2, the latter being the affidavit of one of the applicants, Mr AC Johnson sworn 29 April 2002. 19 Section 62(2)(e), in requiring only "a general description of the factual basis" for the claim can be satisfied by something less than the information necessary to make out a claim of native title rights and interests. The Explanatory Memorandum says of s 62(2)(e):

It is anticipated that much of this information will be anthropological in nature but the provision only requires a general description; not the kind that would be required for the purposes of the determination of the matter by the Federal Court.

20 I think that attachment F1, together with attachment F2, do contain a description of the factual basis underlying the claimed rights and interests sufficient to satisfy s 62(2)(e). Attachment F1 outlines the existence of an aboriginal community defined by the relationships between current members and their predecessors, who in turn find their origins in the claim area; there is an outline of the body of customary law that links these persons to the claim area and how those laws are currently observed. There is also evidence in attachment F2 that one member of the claim group permanently lives in the claim area and that he fishes and camps there with his children, grandchildren and great-grandchildren and there teaches them the laws and customs of the Wulgurukaba, as his elders taught him. As Kiefel J said in Hutchison, s 62(2)(e) does not "entirely correspond" with s 190B(5). If the proposed amendments are made, the claim may not contain "sufficient" to satisfy the Registrar that the rights to possession, occupation, use and enjoyment as against the whole world exist. However, as Kiefel J points out, the test for registration can be based on a wider range of material than that sufficient to satisfy s 62(2)(e). It is asserted on behalf of the applicants that archaeological, historical, genealogical, anthropological and other evidence that supports the factual assertions in attachment F1 will soon be available. There is no reason to doubt that. In any event, whether the proposed amendments will be sufficient to procure registration of the claim is not relevant, for the reasons given, to the question whether I should allow the amendments. 21 Section 62(2)(f) goes further than s 62(2)(e) in that it requires "details" of any activities the claim group carries out in relation to the land or waters claimed. The Explanatory Memorandum explains that the purpose of this requirement "is to ensure that in right to negotiate negotiations about a future act, non-native title parties will be informed about the activity of native title holders in the area which may be affected by the act". Details of the activities set out in Attachment F1 and F2 include:

· assemblies of members of the Wulgurukaba community to deal with issues of people's relationships and rights and interests in the area covered by the application, in accordance with traditional law and custom, the most recent example being a meeting held at Magnetic Island in April 1998

· members of the Wulgurukaba community who currently live in, exercise rights for, conduct activities within and enjoy benefits from lands and waters in the area covered by the application in accordance with "traditional laws and customs"

· the teaching of how to hunt for marine life and search for food on Magnetic Island and general teachings about the land

· consultation of Wulgurukaba Elders on the management of cultural sites in the National Parks on Magnetic Island.

22 I think there is enough information given to satisfy the object sought to be served by s 62(2)(f). 23 The amendments to Schedules F and G will be allowed.

SCHEDULE M 24 Schedule M, which must set out details of any traditional physical connection with any of the land or waters covered by the application is proposed to be amended so that it now refers to attachment F2, the affidavit of AC Johnson mentioned above. 25 The Council argues that proposed Schedule M does not set out a general description of the factual basis sufficient to satisfy s 62(2)(e)(ii) and (iii). For the reasons already given, Attachment F2, which is to be incorporated in Schedule M, is sufficient to satisfy the requirements of s 62(2)(e). 26 This amendment will be allowed.

SCHEDULE N 27 No amendment is proposed to this Schedule. It has been included in the application since its first amendment on 30 June 1999 without complaint by the Council until after the present motion was filed. Under the heading in this Schedule, "Details of the circumstances in which any member of the native title claim group has been prevented from gaining access to any of the land or waters covered by the application", it is said: "The applicants and the Native Title Claim Group do not wish to provide any information on this matter." The Council says that this is in contravention of s 62(2)(e). That is wrong. Schedule N is included in the form for a native title claim application because of s 62(1)(c)(ii). In contrast to the range of information which an application must contain by force of s 62(1)(b), the applicants can elect whether to provide the information for which this Schedule makes provision. They have elected not to do that.

Should an amicus curiae be permitted to appear? 28 The Central Queensland Land Council Aboriginal Corporation ("CQLCAC") sought to be heard as amicus curiae on the applicants' motion to amend their native title claimant application QG 6221/98. CQLCAC is the representative body for the area covered by this application. The Commonwealth is the only party who opposes the CQLCAC's request. 29 The Federal Court has jurisdiction to permit an amicus curiae to participate in the proceedings: see United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520at 534. Generally, "parties are entitled to carry on their litigation free from the interference of persons who are strangers to the litigation". However, the Court may allow third parties to make submissions on law or relevant fact that will assist the Court where the Court might not otherwise have had assistance and the justice of the case requires that the Court should have it: United States Tobacco at 536 and Levy v Victoria (1997) 189 CLR 579 at 604 per Brennan CJ. This course was followed recently in this Court in Kabushiki Kaisha Sony Computer Entertainment v Stevens [2001] FCA 1379. 30 The applicants in these proceedings were originally represented by the CQLCAC. Mr Owens has been the applicants' solicitor on the record since October 2001. According to his affidavit of 19 June 2002, he did not receive the Wulgurukaba file from CQLCAC until March 2002. He says that, as at the date of the hearing of the applicants' motion, he still did not have certain anthropological material relevant to the applicants' case that is in the possession of the CQLCAC. 31 If given leave to do so, the CQLCAC says it will put before the Court this anthropological information which it says supports the existence of Aboriginal law and custom on which the applicants rely in making their native title claim. It is not surprising that CQLCAC should have such information given that, as the representative body for the area covered by the applicants' claimant application, it has the functions of facilitating and assisting the applicants in prosecuting that claim that are imposed on it by ss 203B(1)(a) and 203BB the Native Title Act. It can be inferred from the fact that it originally represented the applicants in these proceedings that its performance of these functions in this case has been enlivened pursuant to s 203BB(2). In performance of these functions, it appears it has been responsible for commissioning the connection report upon which the applicants can be expected to rely to make out their native title claim. 32 It is evident from the affidavit of Mr Owens of 19 June 2002 that he, as legal representative for the applicants, has made numerous requests for and has received assistance and advice from the CQLCAC. In so far as Mr Owens has asked CQLCAC for the anthropological material it holds, the CQLCAC would appear to be under a statutory obligation to meet that request: it is unlikely that that request could properly be denied given the CQLCAC's past conduct in this matter, originally representing the applicants and then continuing to assist them after they engaged their current solicitors. There is no apparent reason why the CQLCAC should not make this material available to the applicants to tender as part of their case in the proceedings. Given this and given the applicants' desire to bring that material to the Court's attention once it is in their possession, it is unnecessary for the CQLCAC be given leave to tender that material as amicus curiae. An amicus curiae generally will not be allowed to lead evidence and may only be permitted to tender evidence if it is uncontroversial to complete the "evidentiary mosaic": Bropho v Tickner (1993) 40 FCR 165 at 172 - 173. It is inappropriate in this case to permit CQLCAC to appear as amicus curiae when it wishes to follow, for no good reason, the entirely exceptional course of putting evidence before the Court. 33 As well as tendering the evidence I have referred to, the CQLCAC wishes to make submissions in respect of the amendments proposed to be made by the applicants to their claimant application. However, these submissions do not raise points that would otherwise have been overlooked, but rather expand in more detail the submissions already made by the applicants. 34 The CQLCAC's desire to intervene is said to be due to the impact a decision allowing or disallowing the amendments to application QG 6221/98 will have on other applications being handled by the CQLCAC. The forms in which other claimant applications can properly be drawn will be governed essentially by the facts of each of those cases. The decision on the present amendment application cannot control whether those forms will suffice. 35 I will not allow the CQLCAC to appear as amicus curiae. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Solicitor for the Applicants: Michael Owens and Associates

Solicitor for Townsville City Council: Suthers & Taylor Lawyers

Solicitor for the Commonwealth: Australian Government Solicitor

Solicitor for Ergon Energy: MacDonnells

Date of Hearing: 14 June 2002

Date of Judgment: 13 December 2002

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