FEDERAL COURT OF AUSTRALIA
Bonner on behalf of the Jagera People #2 v State of Queensland (No 3) [2012] FCA 214
| IN THE FEDERAL COURT OF AUSTRALIA | |
| KENNETH HENRY BONNER & ORS ON BEHALF OF THE JAGERA PEOPLE #2 Applicant | |
| AND: | STATE OF QUEENSLAND AND OTHERS Respondent |
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS THAT:
1. The interlocutory application filed by Ruth James, Myfanwy Locke and Pearl Sandy on 9 March 2012 is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
| QUEENSLAND DISTRICT REGISTRY | |
| GENERAL DIVISION | QUD 6014 of 2003 |
| BETWEEN: | KENNETH HENRY BONNER & ORS ON BEHALF OF THE JAGERA PEOPLE #2 Applicant |
| AND: | STATE OF QUEENSLAND AND OTHERS Respondent |
| JUDGE: | COLLIER J |
| DATE: | 9 MARCH 2012 |
| PLACE: | BRISBANE |
REASONS FOR JUDGMENT
1 This is an interlocutory application seeking the following order:
1. An injunction to restrain the conduct of the meeting on 10 March 2012 regarding authorisation of the proposed amended QUD 62104 of 2003 Native Title Claim.
2 The applicants to the interlocutory application are Ms Ruth James, Ms Myfanwy Locke, and Ms Pearl Sandy, all of whom are respondents to the substantive native title claim. The Jagera People #2 native title claim encompasses an area of land and waters in south-east Queensland, from the Port of Brisbane in the east, to Murphy’s Creek near Toowoomba in the west, and between the Brisbane River and the Logan River systems.
3 An amended Native Title Determination Application (“the Claimant Application”) was filed on 2 August 2011. I understand that the Claimant Application was amended following resolution of an overlap dispute between the Jagera People (in respect of this claim) and the Turrbal People (in respect of claim QUD 6196/1998).
4 On or about 7 February 2012 a notice was published in The Courier Mail newspaper in the following form:
| NOTICE OF JAGERA, YUGGERA AND UGARAPUL ELDERS AND COMMUNITY MEETING 9 am, Saturday 10th March 2012 Lockyer Room, Ipswich Civic CentreAll All persons who are members of the native title claim group in the native title determination application filed in the Federal Court and referred to as Jagera People #2 (QG6014/03) are invited to attend a meeting convened by Jagera, Yuggera and Ugarapul people. The Jagera People #2 native title claim covers land and waters in south-east Queensland including Ipswich and Gatton. The purpose of the meeting is to: 1. Consider whether the present Applicant to the Jagera People #2 claim continues to be authorised by the claim group to make the native title claim and to deal with all matters arising in relation to it, or whether a new Applicant should be authorised to replace the existing Applicant to the native title claim; 2. Consider changes to the native title claim group description; and 3. Make decisions on other matters relating to the native title claim. Elders and members of the Jagera, Yuggera and Ugarapul peoples should attend the meeting, being the biological descendants of the following people : a. James/Jamie Bell, and in particular, those of his known sons Roger Bell (aka Jung Jung) and Stanley Bell; b. Thomas Anderson (aka Tommy Dugandan) and Emily Harvie/Harvey, and in particular, those of their known son Robert Anderson (aka Goupong); c. Sarah Moreton (aka Dinaba), and in particular, those of her known son Charlie Moreton (aka Mookin); d. Janie of Laidley, and in particular, those of her known daughter Daisy Moreton nee Thompson (aka Muminda); e. Billy Turner, and in particular, those of his known daughter Amy Thompson nee Turner; f. Janey Thompson, and in particular, those of her known son Harry Thompson Snr g. Maggie McCarthy, and in particular, those of her known son Peter Long; h. Topsy of Ipswich, and in particular those of her known son Jimmie Edwards; who identify as and are accepted by other members of the group as members of the group. Date: 9am to 3pm, Saturday 10 March 2012 (refreshments included) Venur: Lockyer Room, Ipswich Civic Centre, cnr Limestone & Nicholas Streets, Ipswich [contact details] |
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AFFIDAVITS IN SUPPORT OF THE INTERLOCUTORY APPLICATION
5 The interlocutory application is supported by three affidavits.
6 The first affidavit is that of the applicant for the interlocutory relief, Ms Ruth James. Ms James affidavit was affirmed on 6 March 2012. In summary in her affidavit Ms James deposes that she “object(s) to the QUD 6014/2003 (Jagera People #2) claim being amended and reauthorised on 10 March 2012” on the following grounds:
Connection to the Fassifern Valley and Upper Logan River areas.
This claim does not include all the descendants of the old people. Ms James deposes “To divide the area is divide my people and our families, which has caused a lot of distress”.
A number of family Elders do not support the authorisation meeting.
The apical ancestor of Janie of Laidley and Janey Thompson is believed to be the same person.
The Yugara/Yugarapul People meeting minutes did not agree to the inclusion of certain apical ancestors.
7 The second affidavit is that of Ms Myfanwy Locke affirmed 7 March 2012. Ms Locke deposes in summary:
A meeting was held on 19 October 2011 regarding the Jagera People #2 and a connection report prepared by Mr Daniel Leo.
Mr Leo told numerous families that “they did not have to have their higher apical ancestors as it was not important”.
Mr Leo did not contact the Jagera People #2 respondents one by one, as those respondents had been informed.
Mr Leo was originally contracted by the Jagera People #2’s associated company and then fully paid by Queensland South Native Title Services, and this is not an independent, unbiased or fair allocation of research funds.
A lack of due process has characterised these proceedings.
8 The third affidavit is that of Ms Pearl Rosa Sandy affirmed 8 March 2012. Ms Sandy deposes in summary:
Her objection to the Jagera People #2 claim and the proposed amendments and reauthorisation meeting is for the reasons outlined in motions of a Yugara/Yugarapul Elders meeting on 28 February 2012. Those reasons include, in summary, that persons at that meeting.
Did not agree to certain apical ancestors being included in the Jagera People #2 claim, namely James Bell, Thomas Anderson, Emily Harvie/Harvey, and Sarah Moreton.
Certain other apical ancestors need to be added and researched.
The claim boundary is not the true traditional boundary area.
Daniel Leo’s connection report is not thorough or accurate.
THE HEARING
9 At the hearing the applicants Ms James, Ms Locke and Ms Sandy all spoke very comprehensively for themselves in support of the interlocutory application, although they were not legally represented. In summary, the submissions of the applicants reflected the concerns described in their affidavits. Accordingly, I understand that the grounds of the application for interlocutory relief can be summarised as:
The anthropological research conducted by Mr Daniel Leo is seriously flawed, including by reference to description of apical ancestors and further by reference to existing native title claims of the Yugara/Yugarapul people. The research, which is also found in the connection report, should not be the basis of the Jagera People #2 native title claim.
The applicants believe that their concerns are not being properly entertained, neither at mediation nor by the anthropologist.
The Jagera People #2 claim is not being properly conducted by the Bonner family, which is in control of the claim.
10 At the conclusion of the hearing Ms Katharine Wiltshire sought to speak on behalf of two additional families who are respondents in the substantive proceedings. Mr Yarrow for the Jagera People #2 objected to Ms Wiltshire speaking, however the applicants sought the leave of the Court for Ms Wiltshire to make submissions pursuant to s 85 of the Native Title Act 1993 (Cth). While I note the decision in Isaacs on behalf of the Turrbal People v State of Queensland [2011] FCA 828 where, coincidentally, the trial judge refused leave to unrepresented parties to allow Ms Wiltshire to speak on their behalf, nonetheless I agree with the observation of his Honour in [10] of that decision that each case must be decided on its merits. In this case, because the applicants sought to have Ms Wiltshire speak to add to the submissions they had made, I allowed Ms Wiltshire to speak, but only to supplement submissions already made by the applicants.
11 In my view, Ms Wiltshire’s submissions added nothing to the submissions already made by the applicants.
CONSIDERATION
12 In Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19] Gleeson CJ and Crennan J observed that, in circumstances where a plaintiff seeks interlocutory relief, it is necessary for the plaintiff to demonstrate that:
(a) There is a serious question to be tried as to the plaintiff’s entitlement to relief; and
(b) The plaintiff is likely to suffer injury for which damages will not be an adequate remedy; and
(c) The balance of convenience favours the granting of an interlocutory injunction.
13 In this case I am not satisfied that the applicants have satisfied any of these criteria.
14 First, I am not satisfied on the material before the Court that there is a serious question to be tried as to the applicants’ entitlement to relief. In these proceedings an authorisation meeting has properly been called in accordance with s 251B of the Native Title Act 1993 (Cth). While the applicants appear to have concerns as to the description of the native title claim group and the reliability of anthropological research which has been undertaken, no serious case has been advanced to impugn the basis upon which tomorrow’s meeting has been called. To paraphrase language used by Greenwood J in respect of a similar applications in Gordon Charlie v Cape York Land Council (No 2) [2006] FCA 1683 and in Wuthathi People No 2 v State of Queensland [2010] FCA 1103 at [8], the material before the Court on which the applicants base their claim that the meeting should not proceed is slight, and involves a complex question as to the veracity of anthropological research and the validity of interests for which the hearing this afternoon – being founded upon general concerns and allegations by the applicants – is neither the time nor the place.
15 Second, I am not satisfied that the applicants are likely to suffer any injury at all if the meeting proceeds tomorrow, much less injury for which damages will not be an adequate remedy. As Mr Yarrow submitted, correctly in my view, the authorisation meeting tomorrow is a continuation of the process of evaluating all interests contemplated by the Jagera People #2 claim. The holding of the meeting does not mean that all anthropological investigation is complete, or that the concerns expressed by the applicants to this proceeding are thereafter to be disregarded. It is clear from the published notice of meeting that the meeting has been convened by not only the Jagera people, but also Yugera and Ugarapul people. The meeting itself can provide a forum for some of the concerns of the applicants to be agitated.
16 Finally, I am satisfied that the balance of convenience favours an order dismissing the interlocutory application. It is clear from the affidavit of Mr Matthew Patterson, the solicitor for the Jagera People #2, that arrangements have been in place since early February 2012 for the meeting of the Jagera, Yuggera and Ugarapul Peoples to occur. Mr Patterson deposes that thousands of dollars have been spent in advertising the meeting and making arrangements such as catering and venue hire. The lateness of the application by the applicants to restrain the meeting taking place, coupled with the serious inconvenience which will ensue to many people should the meeting not occur tilt the balance of convenience against the applicants.
17 Finally, and in any event, I note that his Honour Reeves J this morning made orders in this proceeding, including as follows:
6. The issues in dispute in the matter between the Applicant and the Indigenous Respondents be referred to mediation to be conducted by a Registrar of the Court under section 86B of the Native Title Act 1993 (Cth)
7. Each Indigenous Respondent is to serve any expert anthropologist’s report upon which it relies on the Applicant and the State on or before 30 April 2012.
8. If an Indigenous Respondent does not serve an expert anthropologist’s report, the Respondent shall provide to the Applicant and the State a written response to the Applicant’s connection report, including details of those parts of the connection report that are disputed or are agreed, and in respect of those parts that are disputed, the basis of the dispute and the alternative position relied upon by the Respondent, on or before 30 April 2012.
18 From these Orders, the applicants to the interlocutory application will have further opportunities to properly address their concerns within the scope of these proceedings. With respect, in my view these Orders made by his Honour satisfactorily deal with the issues raised by the applicants, and support the submission by the Jagera People #2 that the balance of convenience militates against the order sought this afternoon.
19 The appropriate order is to dismiss the application before me.
| I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. |
Associate:
