Rangiah J
This matter considered an application by Mr Arthur Johnson (Mr Johnson) for an order requiring the details of an Indigenous Land Use Agreement (ILUA) to be removed from the Register of Indigenous Land Use Agreements on the ground of duress.
Background
In June 1998, the Wulgurukaba people filed two applications for determinations of native title in relation to Magnetic Island. In 2004, they started negotiating the terms of an ILUA with the State of Queensland (State) in respect of Magnetic Island. The Wulgurukaba were represented by a solicitor.
In a letter from the solicitor to the claim group dated 24 August 2009 the history of the determination proceedings and negotiation of the ILUA was recorded. The letter disclosed that the Court required the Wulgurukaba people to provide a connection report to the State in 2002 or 2003. The State considered the connection report unfavourable and took the view that the Wulgurukaba were unable to satisfy the requirements of s 223(1) Native Title Act 1993 (Cth)( NTA).
The Wulgurukaba people’s solicitor advised the claim group of three potential courses of action:
withdraw the application;
face the prospect of the State either:
bringing an application to strike out the proceedings; or
seeking a declaration that native title was extinguished.
Entering into an Indigenous Land Use Agreement (ILUA) to settle the applications.
The letter said the claim group had authorised the applicant to pursue an ILUA in 2004 and enclosed a draft copy. The letter said the applicant had negotiated a better outcome than a successful native title determination and there was no certainty that there would have been a successful determination. The letter also explained that budgetary restrictions did not allow everyone to come to the meeting and each family group attendance is capped.
On 26 September 2009, the Wulgurukaba people authorised the draft ILUA.
On 2 June 2010 the ILUA was lodged for registration with the National Native Title Tribunal (NNTT) .
On 26 August 2010, Mr Johnson notified the NNTT that he had signed the ILUA under duress and wanted his signature withdrawn immediately.
On 9 September 2010, the Solicitor emailed the NNTT, stating that:
it was appropriate that the claim group authorised the ILUA;
Mr Johnson had been actively involved in discussion at the authorisation meeting;
at no time during the meeting or when signing the ILUA was anybody coerced or bullied; and
at no time whatsoever did Mr Johnson make any assertions or allegations that he had “signed the draft ILUA under duress”.
On 24 September 2010, Mr Johnson asked the NNTT to withdraw his objection.
On 12 October 2010, Mr Johnson asked the NNTT to register the ILUA.
On 20 October 2010, Mr Johnson advised the NNTT that he was revoking the claim of duress.
On 22 December 2010 details of the ILUA were entered into the Register of Indigenous Land Use Agreements.
Application
On 9 September 2013, Mr Johnson filed an application seeking an order pursuant to s 199C(2) of the NTA directing the Native Title Registrar to remove the details of the ILUA from the Register.
The State applied for summary dismissal on the basis that either;
the applicant’s non-compliance with an order. In dismissing this aspect of the State's application Rangiah J stated it was without merit and should not have been made, at [4].
Mr Johnson’s application had no reasonable prospect of success. Rangiah J considered this application had substance.
The applicant’s case
Mr Johnson alleged that he and the Wulgurukaba People were subjected to duress and that they would not have entered into the ILUA but for that duress.
Rangiah J understood the duress Mr Johnson relied on was “economic duress” and “physical duress”.
The claim of economic duress consisted of two matters:
the decision of the authorising group to authorise the ILUA was brought about by pressure by the solicitor in advising that the claim group faced the prospect of getting nothing if they did not authorise the ILUA.
the solicitor brought “some kind of economic pressure” on the authorising group by making a statement about lack of funds regarding the authorisation meeting.
The claim of physical duress consisted of an allegation that many of the people who were present at the authorisation meeting were not truly Wulgurukaba People and, as a result, the true Wulgurukaba People were outnumbered.
Consideration
Ranghia J considered the terms fraud, undue influence and duress in s 199(3) NTA take their meaning from contract law.
As no allegation was made that the solicitor was acting dishonestly, or unconscionably, or for some purpose other than carrying out his duty as solicitor for the Wulgurukaba Mr Johnson had no reasonable prospect of demonstrating that the advice given or statement made anout budget constraints amounted to illegitimate pressure.
As no allegation of threats, dishonesty or unconscionable conduct were made about other people attending the meeting, and Mr Johnson ultimately supported its registration, the Court concluded that Mr Johnson had no reasonable prospect of succeeding in his “physical duress” argument.
Rangiah considered J Mr Johnson’s real complaint to be that only members of his family should be recognised under the ILUA as Wulgurukaba and as having rights and interests in Magnetic Island.
Orders
The Court made orders dismissing the proceedings on the basis that Mr Johnson did not have reasonable prospects of successfully prosecuting his application.