FEDERAL COURT OF AUSTRALIA

Budby on behalf of the Barada Barna People v State of Queensland (No 4) [2015] FCA 629

THE COURT ORDERS THAT:

1.    Anthony Mark Henry be joined as a respondent to the Barada Barna Proceeding subject to the following:

(a)    that Mr Henry not pursue any Cross-Claim;

(b)    that, on or before 12pm on Thursday 11 June 2015, Mr Henry file and serve a defence to the Statement of Claim filed by the Applicant in QUD 380/2008 and, if that defence discloses an asserted interest on behalf of Mr Henry in respect of any areas of QUD 380/2008 that are overlapping with QUD 492/2013, a defence to the Statement of Claim filed by the Applicant in QUD 492/2013; and

(c)    that, on or before 12pm on Thursday 11 June 2015, Mr Henry file and serve an undertaking to be bound by any agreement between the Applicant in QUD 380/2008 and the State of Queensland regarding the extinguishing effect on any asserted native title rights and interests within the areas the subject of the Barada Barna Proceeding.

2.    on or before 11 June 2015, the Barada Barna Applicant provide a final response in writing to the State and active Respondents concerning those categories of tenure for which agreement as to extinguishment has been sought, but not yet given;

3.    on or before 15 June 2015, the State of Queensland circulate to the Barada Barna Applicant, the Widi Applicant and each active Respondent a further draft of the statement of agreed facts concerning extinguishment, including annexures;

4.    on or before 17 June 2015, the Barada Barna Applicant, the Widi Applicant and each active Respondent is to provide to the State any final comments in respect of the draft statement of agreed facts concerning extinguishment and annexures;

5.    on or before 24 June 2015, the State of Queensland is to file any statement of agreed facts reached pursuant to s 87 of the Native Title Act 1993 (Cth);

6.    the orders in paragraphs 2 and 4 do not apply to the said Anthony Mark Henry; and

7.    there be liberty to apply.

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

REASONS FOR JUDGMENT

1    This application for joinder filed on 2 April 2015 by Anthony Mark Henry comes very late in these proceedings and in circumstances which are not really very well explained. I suspect that to some extent the lateness is attributable to lack of diligence or, perhaps, lack of interest on the part of Mr Henry, but that may not account for all of the delay. The mechanism by which the various representative bodies attend to their responsibilities, and the nature of those responsibilities, inevitably lead to delays and oversights in the way in which their work is performed. I do not mean that in any critical sense. It is the inevitable consequence of the way in which the representative bodies are organized and funded.

2    Such significant delay would normally be disqualifying. The Barada Barna Applicant in the substantive proceedings asserts that it would be prejudiced by any joinder, in that if Mr Henry is joined, he will have to be included in negotiations with the State of Queensland, making such negotiations more difficult. In general that is a consequence, not of late joinder, but of joinder itself. It is not an appropriate basis for refusing joinder, at least in the absence of any clear evidence of decisions made, or agreements reached whilst Mr Henry was not a party. There is only one respect in which such prejudice may arise. Some agreement has been reached as to extinguishment. However I will deal with that problem by extracting an undertaking from Mr Henry. He has agreed to that course.

3    The Barada Barna Applicant also submits that if Mr Henry is joined and successful in the substantive proceedings, there will be no positive outcome in the sense that there will be no Native Title determination. No doubt that proposition is correct. Mr Henry cannot sustain his cross-claim in the absence of an application in the form prescribed by the Native Title Act 1993 (Cth). If Mr Henry successfully opposes the Barada Barna Applicant’s claim to a Native Title determination, it will be the consequence of his joinder and his having a valid ground for opposing such a determination. Again, any prejudice will not flow from the delay in seeking joinder.

4    The Barada Barna Applicant demonstrates no prejudice attributable to Mr Henry’s delay in seeking joinder. I also note that both the State of Queensland and the Widi Applicant submit to any order that the Court should choose to make. In those circumstances, and given the difficult nature of the litigation, I am inclined to do what can be done in order to allow Mr Henry’s claims to be ventilated. That is the best way of resolving the question finally, particularly having regard to the wider operation and application of findings as to the existence of Native Title.

5    However Mr Henry’s defence is not presently in a form which is acceptable. He has not dealt with the Widi People’s claim, which is being heard in conjunction with the Barada Barna People’s claim. As I have said, the cross-claim is not maintainable. Any order that I make for joinder will be dependent upon a proper defence being filed within 48 hours, dealing with all matters in issue in these proceedings. Further, such defence may not include the cross-claim. I shall allow the application for joinder only upon the basis that Mr Henry gives an undertaking that he will abide by any agreement reached between the Barada Barna Applicant and the State of Queensland with respect to the extinguishment of Native Title, including any agreement as to such extinguishment, and any identification by them of issues which remain outstanding in these proceedings. Upon that condition, there will be an order joining Mr Henry as a respondent to the proceedings. The parties will have liberty to apply for further directions in this matter as they may be advised.

Associate:

Dated:    8 July 2015

SCHEDULE OF PARTIES

Widi Applicant:

EILEEN BERYL PEGLER

PAUL ROYCE BUTTERWORTH

MARILYN JOYCE DUNCAN

ATHOL NOEL GOLTZ

LORRAINE JOYCE MCLENNAN

KENNETH STEWART PETERS

GRAHAM IAN SAUNEY

OSWALD ALFRED SKEEN

LINDA WAILU

RONALD JOCK WATSON

Group 1 Respondents:

COMMONWEALTH OF AUSTRALIA

CENTRAL HIGHLANDS REGIONAL COUNCIL

ISAAC REGIONAL COUNCIL

MACKAY REGIONAL COUNCIL

Group 2 Respondents:

NORTH QUEENSLAND LAND COUNCIL ABORIGINAL CORPORATION

NANCY RIEHL

AMANDA SAUNEY

COLLEEN SAUNEY

ERROL SAUNEY

JOANNE SAUNEY

JOSHUA SAUNEY

LANCE SAUNEY

LINDSAY SAUNEY

MAXINE SAUNEY

NIKITA SAUNEY

ROSS SAUNEY

SHANE SAUNEY

TONY SMALLWOOD

LINDA JOYCE WAILU

CELESTE WALSH

DALEY WHITE

DAMIAN WHITE

DANIEL WHITE

SAMANTHA WHITE

KATHLEEN WINDSOR

Group 3 Respondents:

ERGON ENERGY CORPORATION LIMITED

TELSTRA CORPORATION LIMITED

Group 4 Respondents:

ANGLO COAL (GERMAN CREEK) PTY LTD

ANGLO COAL (GROSVENOR) PTY LTD

BOWEN CENTRAL COAL PTY LTD

CAPCOAL MINE JOINT VENTURERS

ENERGY MINERALS PTY LTD

EXXARO AUSTRALIA PTY LTD

MARUBENI COAL PTY LTD

MORANBAH NORTH COAL PTY LTD

MORANBAH NORTH MINE JOINT VENTURERS

NEBO CENTRAL COAL PTY LTD

NIPPON STEEL AUSTRALIA PTY LIMITED

NORTH QUEENSLAND PIPELINE NO 1 PTY LTD

NORTH QUEENSLAND PIPELINE NO 2 PTY LTD

OLDFIELD EXPLORATION PTY LIMITED

PEABODY BB INTERESTS PTY LTD

PEABODY COPPABELLA PTY LTD

PEABODY MOORVALE WEST PTY LTD

PEABODY WEST BURTON PTY LTD

PEABODY WEST WALKER PTY LTD

QUEENSLAND COAL PTY LIMITED

RIO TINTO EXPLORATION PTY LTD

SUMISHO COAL DEVELOPMENT QUEENSLAND PTY LTD

VALE AUSTRALIA (CQ) PTY LTD

VALE AUSTRALIA (IP) PTY LTD

VALE COAL EXPLORATION PTY LTD

WESTFIELD LTD

Group 5 Respondents:

ARDAY PTY LTD

JOHN THOMAS BAKER

MARNIE LOUISE BAKER

ANTHONY JOHN BELLA

EDWARD MARTIN BELLA

MARTIN JOSEPH BELLA

PETER ANDREW BELLA

REGENA FRANCES BELLA

ROBERT JAMES BELLA

STEPHEN EDWARD BELLA

ROBERT JOHN BORG

HAROLD GEORGE BRADFORD

RUTH BRADFORD

LAWRENCE PAUL DANASTAS

MARION CARMEL DANASTAS

KATHRYN HEAD

THOMPSON HEAD

PETER MALCOLM HUGHES

RAYE MARILYN O'SULLIVAN

ROBERT ALAN O'SULLIVAN

WAYNE HOWARD PETTS

ALAN GRIFFITHS SYMONDS

KIM FRANCES WILLOUGHBY