FEDERAL COURT OF AUSTRALIA

Akiba on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 4) [2008] FCA 1446

Native Title Act 1993 (Cth) s 67

LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM PEOPLE v STATE OF QUEENSLAND & ORS

No QUD 6040 of 2001

FINN J

23 SEPTEMBER 2008

ADELAIDE (VIA VIDEOLINK TO BRISBANE)

THE COURT ORDERS THAT:

1.                  Pursuant to Order 78 rule 6(5) of the Federal Court Rules, Application QUD 6040 of 2001 (“the Application”) be separated into two parts, to be called “Sea Claim Part A” and “Sea Claim Part B”.

2.                  Sea Claim Part A of the Application will be considered separately and in advance of Sea Claim Part B.

3.                  Sea Claim Part B will consist of that portion of QUD 6040 of 2001 which overlaps with the Gudang Yadhaykenu People’s Application for Determination of Native Title filed on 1 September 2008 (QUD 269 of 2008), as depicted in the Map annexed as Attachment 2.

4.                  Sea Claim Part B will also consist of that portion of QUD 6040 of 2001 which overlaps with the Kaurareg People’s Application for Determination of Native Title filed 28 August 2008 (QUD 266 of 2008) as depicted in the Map annexed as Attachment 1.

5.                  Pursuant to section 67 of the Native Title Act 1993 (Cth) and Order 29 rule 5 of the Federal Court Rules, Sea Claim Part B and that part of application QUD 266 of 2008 and application QUD 269 of 2008 which overlap Sea Claim Part B be heard together in a separate proceeding.

6.                  Sea Claim Part A will consist of the balance of the area the subject of QUD 6040 of 2001, being the area not subject of Sea Claim Part B. 

7.                  Sea Claim Part A is to remain subject to the current directions made by this Court on 18 August 2008.

8.                  Leave be granted for Bernard Richard Charlie, Meun Lifu and Magdalene Cottis and the Kaurareg People to withdraw as parties to the present proceeding insofar as it relates to Sea Claim Part A.

9.                  The current orders of this Court, insofar as they relate to Sea Claim Part B, be vacated.

10.              Sea Claim Part B be adjourned to a date to be fixed for further directions.

11.              The Kaurareg People are to file and serve, both in these proceedings and proceeding QUD 266 of 2008, a further written description detailing the geographic coordinates of the area the subject of their application for Determination of Native Title (QUD 266 of 2008) as soon as it is provided by the National Native Title Tribunal.

12.              Each party has liberty to apply.

13.              No order for costs.

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

REASONS FOR JUDGMENT

1                     The orders I am about to make in this proceeding (QUD 6040 of 2001) have been foreshadowed for some time.  Put shortly and inexactly the proceeding itself is a native title sea claim over what for present purposes can be described as waters in and adjacent to the Torres Strait.  Recently three separate native title applications have been filed.  Two of these, which for convenience I will describe as the Kaurareg No 1 claim (QUD 266 of 2008) and the Kaurareg No 2 claim (QUD 267 of 2008), have common applicants and claim groups.  The third of these, the Gudang claim (QUD 269 of 2008), has a different claim group. 

2                     The Kaurareg No 1 claim and the Gudang claim overlap in small part.  More importantly for present purposes both have significant overlaps with the claim area in the principal proceedings.

3                     Section 67 of the Native Title Act 1993 (Cth) deals with overlapping native title determination applications.  It provides:

(1)       If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding. 

(2)       Without limiting subsection (1), the order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings.

4                     The course I intend to take in relation to QUD 6040 of 2001 is to follow the course mandated by s 67(2) and to split it into two parts, Sea Claim Part A and Sea Claim Part B.  Part A relates to the area in QUD 6040 of 2001 which is unaffected by the overlapping Kaurareg No 1 and Gudang applications.  Part B will contain that portion of QUD 6040 of 2001 affected by the overlapping applications.

5                     The recent filings have been anticipated for some time now.  For this reason QUD 6040 of 2001 has been timetabled for hearing commencing 29 September 2008 in anticipation of the orders I now make.  Both the Kaurareg people and several members of the Gudang people are respondents in the principal proceedings.  They were asserting native title rights defensively but only in what will now be Part B of the principal proceeding.  It is appropriate that I give them leave respectively to withdraw from the Part A proceeding. 

6                     The Part A proceeding is presently ready for trial.  The Part B proceeding is not, given that, to the extent of the overlap with the other claims, it must be dealt with together with them.  They are not nearly ready for hearing.

7                     While the applicants in QUD 6040 of 2001 do not consent to the orders proposed, neither do they oppose them.  Both the Kaurareg No 1 claimants and the Gudang claimants have proposed “consent orders” to which almost all of the respondents in the principal proceeding have consented.  The orders proposed are in substance what I have foreshadowed I would make to deal with the anticipated – now realised – overlapping applications. 

8                     As the orders proposed by the Cape York Land Council encompass orders in relation to the Kaurareg No 1 claim and the Gudang claim and other necessary consequential orders, I will make orders in QUD 6040 of 2001 in the terms proposed. 

Associate:

Dated:         24 September 2008