FEDERAL COURT OF AUSTRALIA

Isaacs on behalf of the Turrbal People v State of Queensland [2012] FCA 920

THE COURT ORDERS THAT:

1.    The application filed by the first respondent on 17 February 2012 is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The application filed by the first respondent on 17 February 2012 is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

1    This is an application by the State of Queensland as a respondent party in both the Turrbal People’s native title application QUD 6196 of 1998 and the Yugara/Yugarapul People’s native title application QUD 586 of 2011. It seeks to have a number of questions in these two proceedings determined separately under Div 30.1 of the Federal Court Rules 2011. The questions essentially relate to the continuing connection between the claimants and the land and waters claimed. When this application was originally foreshadowed, Mr Hiley QC, for the State, told me that the State respondent’s intention in bringing the application was to separate out the extinguishment related issues in both proceedings and have them dealt with separately from, and after, what I will refer to as, the anthropological, or connection issues.

2    The ultimate question is, in the terms of s 37M of the Federal Court of Australia Act 1976 (Cth): what is the most just, quick, inexpensive and efficient process for dealing with these two proceedings? In my view, there are essentially two courses of action open: an order under Rule 30, as the State has sought to deal separately with the connection issues, or using case management processes to hive off the extinguishment issues and to set all the other issues down for trial.

3    In my view, the Rule 30 course has these disadvantages: to order the trial of a separate question under Rule 30, it is necessary to identify with some precision what that question is. At this stage of these proceedings, this course presents some difficulties. First, it means that there will be less flexibility about what issues are to be determined at trial of the separate question (or questions), if I state a separate question this far out from that trial. Secondly, and more importantly, I do not yet have a points of claim document from the Yugara/Yugarapul People in their proceedings. So I do not yet know precisely what issues they seek to pursue in those proceedings.

4    There also appears to be a dispute between the Turrbal applicant and the State as to exactly what question should be separated for resolution at any such trial. A further dispute appears to have arisen as to the utility of the proposed question that each of them has stated. Mr Blackshield, for the Turrbal People, submits that his question – which he accepts could be refined and redrafted – will achieve a resolution of the sovereignty issue which, he submits, will lead to a resolution of most of the issues in the proceedings much more quickly and inexpensively. On the other hand, he submits that the question proposed by the State will require a 12 week trial which will, in turn, require a longer timeframe in preparation and much greater expense.

5    From the State’s perspective, Mr Hiley submits that the question stated by Mr Blackshield is too broad and, in its present form, it is embarrassing in that it requires the resolution of an undefined issue. Furthermore, he submits that the resolution of that question will not resolve the main issues in dispute between the parties, and he therefore questions the utility of Mr Blackshield’s proposed question. It follows that there is a dispute about the form and utility of the competing questions.

6    In addition to these considerations, I should mention I do not yet know the position of Mr Ruska, the Indigenous respondent in the Yugara/Yugarapul People’s proceedings. That, too, may have a bearing upon whether the two questions stated can resolve all, or most of, the issues in these two sets of proceedings. Mr Hardie, on behalf of Mr Ruska, does not concede that the question proposed by Mr Blackshield will resolve those issues from his client’s point of view.

7    The alternative course is outlined above, viz hiving off the extinguishment issue, setting the other issues down for trial and requiring the parties to achieve that trial date by programming orders. That appears to have been the course taken in Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025 by Merkel J. It was also similar to the process that was contemplated earlier in the Turrbal proceedings by the State and indeed canvassed in a set of submissions that they filed with the Court on 16 August 2011 whereby they proposed to hive off what were referred to as the “public works” issues under ss 47, 47A and 47B of the Native Title Act 1993 (Cth), and have them dealt with separately and after all the other issues in the Turrbal proceedings.

8    In any event, whilst I do not need to decide or propose to do this, it seems to me that it may be open to achieve the same result under Rule 30 itself. That is, to order under Rule 30 that there be a separate hearing of the extinguishment issues to be determined after all other issues in the two proceedings. In the end result, I think the course of dealing with these proceedings by case management offers flexibility both in relation to the form of the questions to be determined, and in relation to the involvement of all the various parties.

9    So, for all these reasons, I think the most just, quick, inexpensive and efficient way of progressing these matters is to give a direction that the extinguishment issues (which will have to be defined) should be dealt with separately from, and after, all other issues in both these proceedings.

Associate:

Dated:    30 August 2012