Federal Court of Australia

Singleton on behalf of the Yirrganydji Peoples v State of Queensland (No 2) [2021] FCA 1350

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed pursuant to r 28.67(1)(e) of the Federal Court Rules 2011 (Cth) insofar as it relates to the area of land and waters delineated as “Part B” in the bundle of maps and descriptions marked “MFI-Y1 map” as noted in the orders made on 2 August 2021.

2.    On or before 24 November 2021 the applicant is to file and serve a further amended Form 1 that:

(a)    amends Schedules B and C to remove the Part B area;

(b)    includes such corresponding or incidental amendments as are necessary to give effect to (a).

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

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed pursuant to r 28.67(1)(e) of the Federal Court Rules 2011 (Cth) insofar as it relates to the area of land and waters delineated as “Part B” in the bundle of maps and descriptions marked “MFI-Y2 map” as noted in the orders made on 2 August 2021.

2.    On or before 24 November 2021 the applicant is to file and serve a further amended Form 1 that:

(a)    amends Schedules B and C to remove the Part B area;

(b)    includes such corresponding or incidental amendments as are necessary to give effect to (a).

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    These two native title claimant applications are made on behalf of the Yirrganydji People under the Native Title Act 1993 (Cth) (NT Act). They relate to an area of land and waters in the vicinity of the city of Cairns in northern Queensland. The claims may be referred to as “Yirrganydji No 1” (QUD337/2015) and “Yirrganydji No 2” (QUD14/2019). The applicants in the two proceedings will be referred to together as the Yirrganydji Applicant.

2    The two claims are among a number of overlapping native title determination applications affecting the same region. The other claims are those brought on behalf of the Gimuy Walubara Yidinji People (QUD23/2019) (GWY Claim), the Cairns Regional Claim Group (QUD692/2016) and the Kunggandji Gurrabuna People of Kamoi (Kimoi or Kumuy) (QUD21/2019) (KGP Claim). The State of Queensland is the first respondent to each of the claims. Together with these proceedings, they will be referred to collectively as the Cairns proceedings.

3    The Court has before it two interlocutory applications for orders dismissing Yirrganydji No 1 and Yirrganydji No 2 in part and a further interlocutory application seeking to have the whole of both claims struck out in their entirety.

4    For the reasons that follow, on the application of the State (as varied in the course of submissions) the Court will make orders under r 28.67(1)(e) of the Federal Court Rules 2011 (Cth) dismissing Yirrganydji No 1 and Yirrganydji No 2 in part.

Background

5    On 22 May 2019, the applicants in the Cairns proceedings and certain Aboriginal respondents entered into an agreement titled “Protocol Deed”. Pursuant to that agreement, they approached the Court for orders providing for the referral of questions under s 54A(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 28.61 of the Rules. On 5 April 2019, Robertson J made orders by consent in each of the Cairns proceedings in terms consented to by the parties. The referred questions were expressed as follows:

1.    Immediately before the acquisition of sovereignty, what group or groups held native title rights and interests in the specified area outlined in the map attached to this Annexure as Attachment 1?

(In answering that question, have particular regard to the area that is subject to an overlap between the proceedings QUD23/2019, QUD14/2019, QUD337/2015, and part of QUD21/2019, and consider the relevance, if any, of a moiety system at the time immediately before sovereignty and the possible existence of any regional society. If more than one group is found to have interests in the specified area, then identify the relevant areas on a map.)

2.    What was the normative system of law and custom pursuant to which that landholding group or those landholding groups held native title rights and interests?

3.    If the normative system of law and custom was based on filiation, which particular individuals are likely to have occupied the specified area at a time closest to the acquisition of sovereignty (the apical ancestors)?

(In answering the question, identify the particular individuals earliest in time for whom evidence of occupation of the specified area exists, and identify which landholding group or groups they belonged to.)

6    The area referred to in the first question is known in the Cairns proceedings as the “study area”.

7    The referees prepared a report dated 6 March 2020 (the Report), and provided it to the Court. Schedule 21 to the Report is a map of the study area (the findings map), which graphically depicts the referees’ conclusions as to which groups held native title rights and interests in which parts of the study area at sovereignty. The findings map depicted an area that the referees concluded was occupied at sovereignty by Yirrganydji Patriclans.

8    The referees’ conclusions were adverse to the Yirrganydji Applicant to the extent that the Yirrganydji Patriclans’ land depicted in the findings map did not encompass southern portions of the claim areas in Yirrganydji No 1 and Yirrganydji No 2, particularly those parts encompassing the city of Cairns and an area to the south of the city.

9    After a contested hearing, on 1 April 2021 the Court made orders pursuant to r 28.67(1)(a) of the Rules in each of the Cairns proceedings adopting the whole of the Report for the purpose of resolving the questions that had been referred to the referees:  Singleton on behalf of the Yirrganydji Peoples v State of Queensland [2021] FCA 316.

10    The effect of the Court’s order is to adopt the conclusions of the referees in the resolution of a substantive question:  Singleton at [104] and [173]. The answers to those questions are fatal to the claims made in Yirrganydji No 1 and Yirrganydji No 2 insofar as the claim areas asserted in those proceedings are not included in the Yirrganydji Patriclans depicted on the findings map.

11    The Court has since requested the National Native Title Tribunal to prepare detailed maps and other materials depicting claim areas in Yirrganydji No 1 and Yirrganydji No 2 in a way that enables consequential orders to be made. They are:

(1)    a bundle of maps and descriptions marked for identification “MFI-Y2 map” partitioning the claim area in Yirrganydji No 1 into two parts named “PART A” and “PART B”; and

(2)    a bundle of maps and descriptions marked for identification “MFI-Y1 map” partitioning the claim area in Yirrganydji No 2 into two parts named “PART A” and “PART B”.

12    In each case, the claim in respect of areas named PART B (the Part B areas) cannot be maintained in light of the Court’s adoption of the Report.

Section 67

13    The claim areas in Yirrganydji No 1 and Yirrganydji No 2 partially overlap the area covered by the GWY Claim (both as originally alleged and as recently amended). The claim areas are also wholly overlapped by the area covered by the KGP Claim (which encompasses the entire study area).

14    Section 67 of the NT Act provides that if two or more proceedings before the Court relate to native title applications that cover (in whole or in part) the same area, the Court must make such orders as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding. The Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings.

15    In recent years, the proceedings collectively referred to as the Cairns proceedings have proceeded by way of concurrent hearings of separate actions. Following the Court’s order adopting the Report, the applicants in each of the Cairns proceedings were afforded the opportunity to amend their claims so that the respective claim areas would accord with the conclusions stated in the adopted Report so eliminating the overlaps. Neither the Yirrganydji Applicant nor the applicant in the KGP Claim have amended their claims.

16    On 2 August 2021, the Court made orders in each of these two proceedings granting leave to any party to (relevantly) the GWY Claim and the KGP Claim to file and serve an application to strike out or dismiss the originating applications in Yirrganydji No 1 and Yirrganydji No 2 in whole or in part. The applicants in the GWY Claim and KGP Claim have each exercised that grant of leave. In my view, those applications can and should be heard and determined on their substantive merits before consideration is given to an order under s 67 of the NT Act in respect of any remaining overlap. The applicants in the GWY Claim and the KGP Claim have asserted an interest in advancing their interlocutory applications and the Yirrganydji Applicant has not submitted that they cannot do so without a s 67 order first being made or without otherwise being formerly joined as parties in the one action. The applicants in the GWY Claim and KGP Claim have been granted leave to be heard within the Yirrganydji No 1 and Yirrganydji No 2 proceedings for that purpose.

17    In any event, the orders to be made are those sought on interlocutory applications filed by the State in Yirrganydji No 1 and Yirrganydji No 2 as the first respondent in those proceedings. Those orders will have the effect of eliminating the overlap between the claims in Yirrganydji No 1 and Yirrganydji No 2 on the one hand, and the GWY Claim on the other.

18    The question of whether the remaining overlap with the KGP Claim should necessitate s 67 orders being made at this stage of the proceeding may be deferred to a hearing of separate applications affecting the future prosecution of the KGP Claim.

Applications of the State and the GWY Applicant

19    The State seeks orders to the effect that the Yirrganydji No 1 and Yirrganydji No 2 proceedings be summarily dismissed pursuant to s 31A(2) of the FCA Act insofar as they relate to areas of land and waters delineated as “Part B” in the bundles of maps and descriptions marked MFI-Y2 and MFI-Y1 respectively. Consequential orders are sought for the filing of amended originating processes retracting the claim areas in accordance with the order.

20    Section 31A of the FCA Act provides that the Court may give judgment against a party in whole or in part if the Court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. Section 31A(3) provides that a proceeding or part thereof need not be “hopeless” or “bound to fail” for it to have no reasonable prospect of success. A reasonable prospect of success is one which is real, not fanciful or merely arguable:  Rogers v Asset Loan Co Pty Ltd [2008] FCA 1305; 250 ALR 82, Logan J (at [41]). As the State correctly submits, if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary:  Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372, Gordon J (at [127]), cited in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978, McKerracher J (at [3]).

21    The State’s submission is that the claims in respect of the Part B areas are factually untenable as a consequence of the Court’s order adopting the Report. I accept that submission. In that respect, I observe that the Yirrganydji Applicant has not made an application (previously foreshadowed) that the adoption of the Report did not preclude an amended claim alleging native title rights and interests in the Part B area acquired by a process of succession:  see Singleton at [108] – [109]. Counsel for the Yirrganydji Applicant has confirmed that no such application is to be made. Counsel has informed the Court that the Yirrganydji Applicant disagrees with the factual conclusions expressed in the Report, but nonetheless acknowledges the legal consequences that follow from the Court’s adoption of it.

22    The interlocutory application filed on behalf of the applicant in the GWY Claim also seeks orders dismissing the Yirrganydji No 1 and Yirrganydji No 2 proceedings insofar as the claims include the Part B areas. However, it was submitted that the appropriate source of power is that conferred under r 28.67(1) of the Rules. It provides:

(1)    After a report has been given to the Court, a party may, on application, ask the Court to do any of the following:

(a)    adopt, vary or reject the report, in the whole or in part;

(b)    require an explanation by way of a further report by the referee;

(c)    remit on any ground, for further consideration by the referee, the whole or any part of the matter that was referred to the referee for inquiry and report;

(d)    decide any matter on the evidence taken before the referee, with or without additional evidence;

(e)    give judgment or make an order in relation to the proceeding or question.

23    In Singleton, I exercised the power in r 28.67(1)(a). That order was justified in part because the parties to the Protocol Deed had agreed not only to submit to the referral procedures (conducted by the referees of their choosing), but also because they had agreed that in their capacities as applicants in the Cairns proceedings, they would amend their originating applications in a manner consistent with the conclusions of the referees’ Report:  Singleton at [14] and [49].

24    It appears to the Court that if the Protocol Deed had operated in accordance with its terms, the overlaps would have resolved in the performance of the parties’ contractual obligations, without the need for judicial intervention either under r 28.67(1)(a) of the Rules.

25    Whatever be the terms of the Protocol Deed, an order under r 28.67(1)(e) is now justified on the basis that the Court’s adoption of the Report has the legal effect that the claims in Yirrganydji No 1 and Yirrganydji No 2 cannot succeed in respect of the Part B areas in any event.

26    I am satisfied that it is appropriate to exercise the power under r 28.67(1)(e) as that is the mechanism that best reflects the procedural history and the choices made by the parties in the litigation. An order under that rule reflects the circumstance that the claims are dismissed in part on their substantive merits because a critical question has been resolved against the Yirrganydji Applicant as a consequence of the referral procedures to which it submitted.

27    In the course of submissions, Counsel for the State acknowledged that orders could be made under r 28.67(1)(e). That submission may be received as an unopposed application to vary the relief sought on the State’s interlocutory applications, so as to rely on the rule as an alternative source of power. I will make orders under the rule on the State’s applications so as to avoid any unnecessary argument that might conceivably arise as to the standing of any other person to move the Court for the same relief in the within proceedings.

Application of the KGP Applicant

28    The orders made in relation to the Part B areas do not resolve the circumstance that the Part A areas presently remain wholly overlapped by the KGP Claim.

29    By an interlocutory application filed on 7 September 2021, the applicant in the KGP Claim (represented by a non-lawyer, Ms Sarah Addo) seeks an order that the Yirrganydji No 1 and Yirrganydji No 2 proceedings be struck out in their entirety. The submissions in support of that application included contentions to the effect that the conclusions expressed in the Report are factually wrong. The reasons for adopting the Report over opposition of the applicant in the KGP Claim are explained in Singleton at [115] – [172] and will not be repeated here.

30    A consequence of the Court’s adoption of the Report is that the referred questions have been resolved in favour of the Yirrganydji Applicant in respect of the Part A areas. Ms Addo has identified no tenable basis, consistent with the Courts order adopting the Report, for striking out the Yirrganydji No 1 and Yirrganydji No 2 proceedings in their entirety. Accordingly, I will not make the order sought on the interlocutory application filed by the applicant in the KGP Claim.

Associate:

Dated:    3 November 2021

SCHEDULE OF PARTIES A

SCHEDULE OF PARTIES B