FEDERAL COURT OF AUSTRALIA

Waldron v State of Queensland [1999] FCA 1195

NATIVE TITLE - non-claimant native title application - claim to land grant in one area to replace land in another area in respect of which applicant claimed his clan group once had native title that had previously been extinguished - no power under Native Title Act 1993 (Cth) to give any relief sought - dismissal of application

Native Title Act 1993 (Cth), ss 61, 253

BARRY JULIAN (JOHN) WALDRON v STATE OF QUEENSLAND & ORS

QG 6234 OF 1998

DRUMMOND J

6 AUGUST 1999

BRISBANE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application by Mr Waldron, who seeks a determination under s 61 the Native Title Act 1993 (Cth) with respect to the non-native title interest he says he holds in relation to a certain area described in his application.  The application seeks as the primary relief an order that certain land within Queensland be awarded by way of a land grant to the descendants of two clan or family groups to replace their entitlement to native title land in Papua lost to them as a consequence of Crown lease extinguishment.  The application also seeks an order that the land in question be awarded to the descendants of the clan or family groups mentioned in the application to replace their entitlement to native title land in the Torres Strait region said to be lost as a consequence of displacement.

2                     On 16 June 1999, when the matter came before me, the Cape York Land Council presented an argument that Mr Waldron’s application should be struck out as not disclosing any sustainable claim to any relief within the power of the Court to grant under the Native Title Act.  I then gave directions to ensure the parties would have an opportunity to put their submissions to me in written form, and that has been done.  I have made those submissions exhibits.

3                     Under s 61(1) the Native Title Act, an application may be made by:

“… A person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought.”

4                     The term “interest” in relation to land or waters for the purposes of the Native Title Act is defined in s 253 to mean:

“… a legal or equitable estate or interest in the land or waters -”

and certain other lesser rights. 

5                     In my opinion, neither the application nor any of the material lodged in support of it by Mr Waldron identifies any interest within s 253 held by the applicant in the area the subject of the application and it would follow that there is no reasonable basis for Mr Waldron’s application.

6                     Mr Waldron’s material does disclose that in 1980 he was granted under the Fisheries Act 1976 (Qld) a particular permit.  But that permit was subject to the following condition:

“Unless sooner cancelled, resolved, suspended or surrendered, this permit shall remain in force for a period of 12 months from 1 July 1981.”

7                     There is a dispute between the Crown and Mr Waldron as to whether certain action he took to return the permit amounted to a surrender.  But there does not appear to be any answer to the proposition that the permit automatically came to an end in any event twelve months from 1 July 1981, ie, on 30 June 1982.

8                     Mr Waldron also refers to a patent application.  But it is obvious, when one has regard to the definition of "interest" in relation to land and waters contained in s 253 the Native Title Act, that the patent application is incapable of constituting such an interest and so is not capable of supporting the s 61 application that Mr Waldron brings under the Native Title Act.

9                     It seems to me that putting the applicant’s case at its highest he alleges that he has a cause of action against the State, but it is plain that that is not a cause of action capable of being brought under the Native Title Act for the reason I have already mentioned, viz, that Mr Waldron does not have a sufficient interest in the area the subject of the claim to support a claim under s 61.

10                  It is also apparent that there are other difficulties faced by Mr Waldron in pursuing proceedings under the Native Title Act when one has regard to the relief which he seeks, including the following:

“Barry Waldron seeks determinations from the National Native Title Tribunal by way of consultation and negotiation.  Barry and Naome Waldron claim compensation under the Racial Discrimination Act 1975 for dispossession of land use rights and other rights.”

11                  It is apparent that the Court has no power under the Native Title Act to give any of this relief.

12                  I therefore order that Mr Waldron’s application be dismissed.

Associate:

Dated:              6 August 1999