In this matter the Court made orders that: (1) the trial proceed in the absence of both respondents pursuant to Federal Court Rules 2011 (Cth) r30.21. The Court further ordered (5) that the second respondents pay the applicant’s costs of and incidental to the proceeding, and that the applicant be granted leave to file and serve an interlocutory application for an order that a third party pay its cost of the proceedings.
Rares J earlier granted three consent determinations of native title in favour of the claim group, the first in July 2011 (Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819), the second (and presently relevant one) in July 2014 (Lampton on behalf of the Juru People v State of Queensland [2014] FCA 736) and the third in June 2015 (Lampton on behalf of the Juru People v State of Queensland [2015] FCA 609).
This proceeding concerned the final hearing of an application by Juru Enterprises Limited for a declaration that it is the nominated body for the purposes of the ancillary agreement dated 6 May 2013. The ancillary agreement came into existence pursuant to an Indigenous Land Use Agreement (ILUA) between it, the members of the Applicant on their own behalf and on behalf of the Native Title Claim Group, on the one part and on the other part Adani Abbot Point Terminal Pty Ltd, Adani Abbot Point Terminal Holdings Pty Ltd, Mundra Port Holdings Pty Ltd and Mundra Port Pty Ltd (Adani). Under the ancillary agreement, Juru Enterprises was designated as the Juru nominated body as at 6 May 2013, being the commencement date of the ancillary agreement. The ancillary agreement provided in cl 7 that Adani would pay moneys, described as the ‘benefit payment,’ to the Juru nominated body, being a body that satisfied a number of specific requirements in order for it to be capable of being nominated to that role under the ancillary agreement.
In each of the three consent determinations, Rares J determined that pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth), that the Juru People’s native title rights and interests be held in trust by a registered native title body corporate, being the second respondent, Kyburra Munda Yalga Aboriginal Corporation. In October 2017, the Office of the Registrar of Indigenous Corporations appointed special administrators to Kyburra. Under cl 7.4 of the ancillary agreement, Adani had power, if, acting reasonably, it considered that the existing Juru nominated body did not meet the requirements of cl 7.2(a), to suspend paying benefits to it and to approve a replacement. In March 2017, Kyburra executed a deed (the March 2017 deed) in which it was the only party, but was acting both in its role as the registered native title body corporate and as the incoming Juru nominated body.
The critical issue in this proceeding was whether, on 9 March 2017, Kyburra validly appointed itself under cl 7.3 as the Juru nominated body in place of Juru Enterprises. Rares J found that on Kyburra’s admissions in the pleadings, there had been no compliance with cl 7.2(a)(i)(D), meaning the common law holders, the Juru people, had not agreed to Kyburra replacing Juru Enterprises as the nominated body.
Accordingly, Rares J found that at the time Kyburra executed and delivered the March 2017 deed to Adani and up to, at least, 23 February 2018, it did not satisfy the Juru nominated body requirements in cl 7.2(a)(i)(B) and (C) and was therefore incapable of being or becoming the nominated body. That is because Kyburra had not complied with the standards of accountability required by laws under which it was established and was, and remains in administration.
Rares J made declarations in support of Juru Enterprises continuing as the nominated body under the ancillary agreement.