FEDERAL COURT OF AUSTRALIA

Combined Gunggandji Claim v State of Queensland [2005] FCA 575

COMBINED GUNGGANDJI CLAIM v STATE OF QUEENSLAND & ORS

Q 6013 OF 2001

DOWSETT J

31 MARCH 2005

CAIRNS

THE COURT ORDERS THAT:

1.         The current applicants for the native title claim group, namely, the following group of persons acting jointly:

۰               Leslie Vivian Murgha;

۰               Stewart Eric Harris; and

۰               Frederick (Ricko) Noble

be replaced by the new applicant, pursuant to s 66B(1) of the Native Title Act 1993 (Cth) consisting of the following group of persons acting jointly:

۰               Leslie Vivian Murgha; and

۰               Stewart Eric Harris.

2.         The Registrar of the Federal Court notify the Registrar of the National Native Title Tribunal of the name and address for service of the new applicant.

3.         The Registrar of the National Native Title Tribunal amend the Register to reflect the order.

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 under s 66B to remove one of the applicants in this case, namely Frederick Charles Noble.  The process by which the decision to remove him has been made is said to be pursuant to par 251B(a).  The process appears from the affidavits of Stewart Eric Harris and Leslie Vivien Murgha, who are also applicants, and the affidavits of Alice Daphne Yeatman and Edgar Harris.  The affidavits by Messrs Murgha and Stewart Harris were filed on 7 March 2005 and those by Ms Yeatman and Mr Edgar Harris, on 24 March 2005.

2                     At a meeting of the claim group, the proposed removal of Mr Noble was considered.  Allegedly in accordance with traditional law and custom, the claim group decided to refer the matter to the elders for their decision and to abide by that decision.  Mr Noble disputes that the laws and customs of the claim group so provide.  However the basis of his dispute seems to be that there are two claim groups with different laws and customs.  Clearly enough, that is not possible, as Spender J found in Combined Mandingalbay Yidinji-Gunggandji Claim  v State of Queensland [2004] FCA 1703.  If there is no accepted law or custom within the claim group (because there are conflicting practices within that group), then par 251B(b) would apply.  In effect the claim group agreed to refer the matter to the elders for decision and chose to abide by the resulting decision.

3                     It is asserted that the elders unanimously agreed that Mr Noble should be removed and advised the meeting of the claim group accordingly.  The claim group then adopted that resolution.  There is, however, a dispute as to the elders’ decision.  Mr Garling, who is one of the elders, agrees that he concurred in the proposal to remove Mr Noble but says that his agreement was conditional upon his being appointed as an applicant.  Other affidavits assert to the contrary.  I am inclined to the view that Mr Garling’s evidence has, to some extent, been influenced by events which have occurred since the meeting, which events have caused him to be very concerned and excited about the matter.  In any event I prefer the evidence of the other four deponents to that of Mr Garling on this score.  There was probably room for misunderstanding as to what actually happened on the day in question.

4                     All of the requirements of s 66B have been satisfied.  There will be an order in accordance with pars 4 and 5 of the notice of motion.

Associate:

Dated:              5 May 2005