FEDERAL COURT OF AUSTRALIA

Chippendale on behalf of the Wuthathi People #2 v State of Queensland

[2013] FCA 1401

THE COURT ORDERS THAT:

1.    Isaac Savage be removed as a respondent to the proceeding.

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 interlocutory application by which orders are sought by the applicants pursuant to s 84(8) of the Native Title Act 1993 (Cth) that Mr Isaac Savage cease to be a party to this proceeding. Mr Savage, together with Mr Muen Lifu and Mr George Pausa, were joined as respondents to the proceeding, having regard to claims and contentions that they have made over and in relation to the land, the subject of the native title determination application. The history of the proceeding is addressed in an earlier judgement in the matter of Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310 (the “Chippendale decision”) in which I described the background extensively and, for the purposes of these ex tempore observations, I will not canvas that background again and I simply adopt that description of the background as context for the purposes of these reasons.

2    Mr Isaac Savage says that not only is he joined as a respondent on the footing that he asserts native title rights and interests in the subject area of the present claim on his own behalf, but he says that he also is a respondent in a “representative capacity” along with Mr Lifu and Mr Pausa on behalf of the Gudang Yadhaykenu People. As the analysis of the claim by the applicant has transpired and the investigation of the factual background has developed, it has now become clear that Mr Isaac Savage’s ancestor has been recognised in the genealogies relevant to the claim and, thus, Mr Isaac Savage is now part of the applicant claim group in the proceeding.

3    It is simply not possible for Mr Savage to be a member of the claim group asserting native title rights and at the same time a respondent party to such a claim. There is no utility in Mr Savage remaining a respondent in the proceedings. Mr Savage, of course, is a respondent in his own right, but says that he is also a respondent in a representative capacity and seeks to retain his position as a respondent in order to represent the interests of the Gudang Yadhaykenu People. In any event, Mr Savage asserts rights on his own behalf even if it were to be accepted that he also acts in a representative capacity. The Court, of course, has not accepted joinder on the footing of a representative capacity as explained in the earlier Chippendale decision.

4    The remaining individuals who are respondents are Mr Lifu and Mr Pausa but so far as the question relates to Mr Savage, it is appropriate to now remove him from the proceedings as a party simply because he is properly represented and in a justiciable sense is a member of the claim group asserting native title rights and interests over the claim lands as an applicant.

5    Accordingly, I make orders that Mr Isaac Savage cease to be a party to this proceeding and there be no orders as to costs.

Associate:

Dated:    5 December 2013