Reeves J
In this matter the authorised applicant (Applicant) for the Gold Coast Native Title Claim Group (the Gold Coast NTCG) sought leave to discontinue its Gold Coast NTCG application for the determination of native title in relation to an area of land and waters in and around the Gold Coast region of South East Queensland. The claim area extends from the Logan River in the north to the Tweed River in the south. It incorporates the coastal areas and several of the southern Moreton Bay Islands, including South Stradbroke Island, in the east, and extends to the Tamborine and Numinbah Valley areas in the west. A small part of the claim area falls in the far northern area of the State of New South Wales.
Background
The Gold Coast NTCG application is the 4th claim lodged over the area in 16 years. The Gold Coast NTCG application was filed in September 2006.
In 2011 the State of Queensland informed the Court that it was not able to accept that the Gold Coast NTCG could establish the necessary connection with the claim area. In early 2012 the parties agreed to set the matter down for trial in June 2013, and the Court made orders setting out a timetable towards that trial. Following unsuccessful negotiations in relation to a non-native title settlement the Court made trial programming orders.
In August 2012 the Applicant applied to vacate the trial dates and extend the time for compliance with the other programming orders. extend the deadlines in this timetable and to postpone the 2013 trial date. The application was not supported by an affidavit from any of the six surviving individuals who make up the authorised Applicant.
The application to vacate the trial was unsuccessful but some extensions of time were provided. The Applicant also failed to comply with the extended deadline and a short time later filed the present application seeking leave to discontinue these proceedings.
Consideration
The Court noted that:
various affidavits were filed in support of the discontinuance which made it clear that the Applicants' intended to file a new claim at a later time when they had found sufficient resources to properly prepare.
there is no evidence in any of the affidavits that the members of the Gold Coast NTCG have been informed about the application or consulted to obtain their views about it
The State of Queensland proposed that the Applicant should only be granted leave if certain conditions restricting the capacity of the Gold Coast NTCG to file any future claim over the same area of land and waters were applied.
Reeves J did not consider the Court has the power to impose such conditions on the statutory right of the Gold Coast NTCG to file whatever future claim over the claim area it may be advised to. This is because such restrictions would infringe the claimants’ right to access the Court’s jurisdiction under the Native Title Act 1993 (Cth). There was no suggestion that the claimants were vexatious litigants or that filing a new claim would constitute an abuse of process.
Reeves J considered the authorised Applicant has the authority to make the application, but decided, in the exercise of the Court's discretion, not to grant it leave to discontinue the native title claim because there is no evidence it has informed the Gold Coast NTCG about this application or, more importantly, sought its views on it.
Orders
The application filed 18 September 2012 is dismissed.