FEDERAL COURT OF AUSTRALIA

Budby on behalf of the Barada Barna People v State of Queensland (No 3) [2014] FCA 607

THE COURT ORDERS THAT:

1.    the representatives of each Applicant and the State of Queensland attend a case management conference to be convened by the Deputy Registrar within the next two weeks for the purpose of considering the terms of the proposed draft order on the basis that the matter is to be listed for trial in the second half of 2015; and

2.    the matter be adjourned until 5 May 2014.

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

THE COURT ORDERS THAT:

1.    the representatives of each Applicant and the State of Queensland attend a case management conference to be convened by the Deputy Registrar within the next two weeks for the purpose of considering the terms of the proposed draft order on the basis that the matter is to be listed for trial in the second half of 2015; and

2.    the matter be adjourned until 5 May 2014.

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

THE COURT ORDERS THAT:

1.    the representatives of each Applicant and the State of Queensland attend a case management conference to be convened by the Deputy Registrar within the next two weeks for the purpose of considering the terms of the proposed draft order on the basis that the matter is to be listed for trial in the second half of 2015; and

2.    the matter be adjourned until 5 May 2014.

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

REASONS FOR JUDGMENT

1    I am, today, addressing the resolution of problems arising out of overlaps between three claims, the Barada Barna claim, which has been on foot since 2008, and two subsequent and partially overlapping claims – one by the Widi People and one by the Barada Kabalbara Yetimarala People (the “BKY People”) – both of which claims were commenced in 2013. The Widi People have, however, been a party to the Barada Barna claim since shortly after notification. The conduct of the Barada Barna claim has not been exemplary. As a result, in April 2013, it was struck out for want of prosecution or abuse of process. In December 2013, that decision was set aside by the Full Court.

2    In order to facilitate resolution of the overlap problems, Barada Barna proposes that the overlapping areas should be excised from the other claims and made the subject of separate applications to be heard with the Barada Barna claim. The other applicants, however, suggest the reverse approach. They suggest that the overlap areas be excised from the Barada Barna claim, and that such claim should then proceed with respect to the balance. The overlap problems should then be resolved as part of the substantive claims raised by the Widi People and the BKY People.

3    Were all three claims roughly contemporaneous in time, and had they only been recently commenced, I am inclined to think that I would have adopted the course advanced by the Widi People and the BKY People. The fact is, however, that although the Barada Barna People may have prosecuted their claim with little apparent enthusiasm, it has been on foot since 2008. There can be little doubt that the other claim groups have been aware of it since its inception or shortly thereafter, given the system of notification. Given that they must have known that on the basis of traditional knowledge, they had overlapping claims, it was for them to have advanced their claims in a far more timely way than they have done.

4    It is true that the Widi People became respondents to the Barada Barna application. At least to that extent, they showed their hand. On the other hand, by appearing in those proceedings, they effectively encouraged everybody to believe that they were happy to have the overlap problems resolved in the Barada Barna proceedings. I consider that both the Widi People and the BKY People have stood by and allowed this matter to proceed a very long way without taking any steps to make it clear that they intended to prosecute their own claims over the overlap areas. In my view, it would be very unfair to the Barada Barna People now to delay the trial of any part of their claim, simply to accommodate claims which ought to have been advanced at a much earlier stage.

5    The Widi People and the BKY People assert that it would be more efficient to approach the matter in the way which they suggest. I am unpersuaded as to that assertion. I do not accept that either of them is entitled to claim that they are being unfairly dragged into somebody else’s litigation. They have known that litigation was on foot for a very long time, and they must have been aware of the effect it would have on them.

6    On the other hand, I accept that some delay has occurred as the result of the strike out proceedings and appeal. I am therefore willing to defer the trial for some months. It was originally to commence early in March 2015. I will now seek to have it heard in the second half of 2015. Hopefully, that should allow the BKY People and the Widi People to do whatever has to be done in order to be ready for trial. It would also assist the Land Councils in securing such funding as may be necessary in the new financial year. Another matter which has been ventilated today has been the State’s desire to separate out the issue of extinguishment from that of connection.

7    I do not automatically assume that the issues can be, or should be separated in that way. However, I shall consider the matter again when the State has provided rather more specific evidence as to why it would be so onerous for it to seek to litigate that issue at the same time as the question of connection. In those circumstances, I adjourn all of the applications before me until the morning of 5 May 2014.

Associate:

Dated:    19 June 2014

SCHEDULE ONE OF RESPONDENT PARTIES – QUD 380 OF 2008

Respondents:

Second Respondent:        COMMONWEALTH OF AUSTRALIA

Third Respondent:        CENTRAL HIGHLANDS REGIONAL COUNCIL

Fourth Respondent:        ISAAC REGIONAL COUNCIL

Fifth Respondent:        MACKAY REGIONAL COUNCIL

Sixth Respondent:        GRAHAM BELL

Seventh Respondent:        NORMAN ABRAHAM JOHNSON SNR

Eighth Respondent:        NORTH QUEENSLAND LAND COUNCIL ABORIGINAL

                CORPORATION

Ninth Respondent:        NANCY RIEHL

Tenth Respondent:        AMANDA SAUNEY

Eleventh Respondent:        COLLEEN SAUNEY

Twelfth Respondent:        ERROL SAUNEY

Thirteenth Respondent:    JOANNE SAUNEY

Fourteenth Respondent:    JOSHUA SAUNEY

Fifteenth Respondent:        LANCE SAUNEY

Sixteenth Respondent:    LINDSAY SAUNEY

Seventeenth Respondent:    MAXINE SAUNEY

Eighteenth Respondent:    NIKITA SAUNEY

Nineteenth Respondent:    ROSS SAUNEY

Twentieth Respondent:    SHANE SAUNEY

Twenty First Respondent:    TONY SMALLWOODS

Twenty Second Respondent:    LINDA JOYCE WAILU

Twenty Third Respondent:    CELESTE WALSH

Twenty Fourth Respondent:    DALEY WHITE

Twenty Fifth Respondent:    DAMIAN WHITE

Twenty Sixth Respondent:    DANIEL WHITE

Twenty Seventh Respondent:    SAMANTHA WHITE

Twenty Eighth Respondent:    KATHLEEN WINDSOR

Twenty Ninth Respondent:    ERGON ENERGY CORPORATION LIMITED

Thirtieth Respondent:        TELSTRA CORPORATION LIMITED

Thirty First Respondent:    ANGLO COAL (GERMAN CREEK) PTY LTD

Thirty Second Respondent:    ANGLO COAL (GROSVENOR) PTY LTD

Thirty Third Respondent:    BISTROTEL PTY LTD

Thirty Fourth Respondent:    BNG (SURAT) PTY LTD

Thirty Fifth Respondent:    BOWEN CENTRAL COAL PTY LTD

Thirty Sixth Respondent:    CAPCOAL MINE JOINT VENTURERS

Thirty Seventh Respondent:    CENTRAL QUEENSLAND PIPELINE PTY LTD

Thirty Eighth Respondent:    CHERWELL CREEK COAL PTY LTD

Thirty Ninth Respondent:    ENERGY MINERALS PTY LTD

Fortieth Respondent:        EXXARO AUSTRALIA PTY LTD

Forty First Respondent:    MARUBENI COAL PTY LTD

Forty Second Respondent:    MATILDA COAL PTY LIMITED

Forty Third Respondent:    MIDDLEMOUNT COAL PTY LTD

Forty Fourth Respondent:    MORANBAH NORTH COAL PTY LTD

Forty Fifth Respondent:    MORANBAH NORTH MINE JOINT VENTURERS

Forty Sixth Respondent:    MORANBAH SOUTH JOINT VENTURERS

Forty Seventh Respondent:    NEBO CENTRAL COAL PTY LTD

Forty Eighth Respondent:    NEW SOUTH OIL PTY LTD

Forty Ninth Respondent:    NIPPON STEEL AUSTRALIA PTY LIMITED

Fiftieth Respondent:        NORTH QUEENSLAND PIPELINE NO 1 PTY LTD

Fifty First Respondent:    NORTH QUEENSLAND PIPELINE NO 2 PTY LTD

Fifty Second Respondent:    OME RESOURCES AUSTRALIA PTY LTD

Fifty Third Respondent:    PEABODY BB INTERESTS PTY LTD

Fifty Fourth Respondent:    PEABODY COPPABELLA PTY LTD

Fifty Fifth Respondent:    PEABODY MOORVALE WEST PTY LTD

Fifty Sixth Respondent:    PEABODY WEST BURTON PTY LTD

Fifty Seventh Respondent:    PEABODY WEST WALKER PTY LTD

Fifty Eighth Respondent:    QUEENSLAND COAL PTY LIMITED

Fifty Ninth Respondent:    RIBFIELD PTY LTD

Sixtieth Respondent:        SUMISHO COAL DEVELOPMENT QUEENSLAND

Sixty First Respondent:    VALE AUSTRALIA (CQ) PTY LTD

Sixty Second Respondent:    VALE AUSTRALIA (IP) PTY LTD

Sixty Third Respondent:    VALE COAL EXPLORATION PTY LTD

Sixty Fourth Respondent:    WESTFIELD LTD

Sixty Fifth Respondent:    ARDAY PTY LTD

Sixty Sixth Respondent:    JOHN THOMAS BAKER

Sixty Seventh Respondent:    MARNIE LOUISE BAKER

Sixty Eighth Respondent:    ANTHONY JOHN BELLA

Sixty Ninth Respondent:    EDWARD MARTIN BELLA

Seventieth Respondent:    MARTIN JOSEPH BELLA

Seventy First Respondent:    PETER ANDREW BELLA

Seventy Second Respondent:    REGENA FRANCES BELLA

Seventy Third Respondent:    ROBERT JAMES BELLA

Seventy Fourth Respondent:    STEPHEN EDWARD BELLA

Seventy Fifth Respondent:    ROBERT JOHN BORG

Seventy Sixth Respondent:    HAROLD GEORGE BRADFORD

Seventy Seventh Respondent:    RUTH BRADFORD

Seventy Eighth Respondent:    LAWRENCE PAUL DANASTAS

Seventy Ninth Respondent:    MARION CARMEL DANASTAS

Eightieth Respondent:        KATHRYN HEAD

Eighty First Respondent:    THOMPSON HEAD

Eighty Second Respondent:    RAYE MARILYN O'SULLIVAN

Eighty Third Respondent:    ROBERT ALAN O'SULLIVAN

Eighty Fourth Respondent:    STEPHEN MICHAEL PETTS

Eighty Fifth Respondent:    WAYNE HOWARD PETTS

Eighty Sixth Respondent:    CRAIGIE ROSS

Eighty Seventh Respondent:    GRAHAM ROSS

Eighty Eighth Respondent:    KIM FRANCES WILLOUGHBY

SCHEDULE TWO OF RESPONDENT PARTIES – qud 383 OF 2013

Respondents:

Second Respondent:        CENTRAL HIGHLANDS REGIONAL COUNCIL

Third Respondent:        ISAAC REGIONAL COUNCIL

Fourth Respondent:        LIVINGSTONE SHIRE COUNCIL

Fifth Respondent:        MACKAY REGIONAL COUNCIL

Sixth Respondent:        ROCKHAMPTON REGIONAL COUNCIL

Seventh Respondent:        WOORABINDA ABORIGINAL SHIRE COUNCIL

Eighth Respondent:        ALECIA FAY BOWMAN

Ninth Respondent:        ARNOLD JOHN BOWMAN

Tenth Respondent:        TREVOR ALWYN BOWMAN

Eleventh Respondent:        CECIL BROWN JNR

Twelfth Respondent:        GREGORY BROWN

Thirteenth Respondent:    FRANK BUDBY

Fourteenth Respondent:    GRAHAM BUDBY

Fifteenth Respondent:        LES BUDBY

Sixteenth Respondent:    STACEY BUDBY

Seventeenth Respondent:    CARMEL DARGAN

Eighteenth Respondent:    TELSTRA CORPORATION LIMITED

Nineteenth Respondent:    ANGLO COAL (FOXLEIGH) PTY LTD

Twentieth Respondent:    CAML RESOURCES PTY LTD

Twenty First Respondent:    NIPPON STEEL & SUMITOMO METAL AUSTRALIA PTY                 LTD

Twenty Second Respondent:    ORION GOLD NL

Twenty Third Respondent:    PEABODY BB INTERESTS PTY LTD

Twenty Fourth Respondent:    TREVOR HAROLD BRADFORD

Twenty Fifth Respondent:    LAWRENCE PAUL DANASTAS    

Twenty Sixth Respondent:    MARION CARMEL DANASTAS

Twenty Seventh Respondent:    PETER DONALD DUNBAR

Twenty Eighth Respondent:    JOHN SAMUEL JONES

Twenty Ninth Respondent:    ROSS JOSEPH OLIVE

Thirtieth Respondent:        PAN INVESTMENTS PTY LTD

Thirty First Respondent:    WAYNE HOWARD PETTS

Thirty Second Respondent:    LEONE GALE PHILIPSON

Thirty Third Respondent:    NEVILLE JOHN PHILIPSON

Thirty Fourth Respondent:    BRIAN LLOYD POWNALL

Thirty Fifth Respondent:    JOHN CHARLES POWNALL

Thirty Sixth Respondent:    JUDITH LOUISE POWNALL

Thirty Seventh Respondent:    KELVIN ROY SIBSON

Thirty Eighth Respondent:    KELVIN ROY SIBSON ATF DALE KELVIN

Thirty Ninth Respondent:    LYNETTE ESTELLE SIBSON

Fortieth Respondent:        EDWARD GEORGE SMITH

Forty First Respondent:    ELIZABETH JOAN SMITH

Forty Second Respondent:    RUSSELL CHARLES SMITH

Forty Third Respondent:    CRAIG LYNTON WIGHT

Forty Fourth Respondent:    MARK LYNTON WIGHT

Forty Fifth Respondent:    RACHEL GAY WIGHT

Forty Sixth Respondent:    ROBERT LYNTON WIGHT