Logan J
In this matter, Logan J dismissed the Yirendali People’s application to discontinue their native title determination application.
Background
In December 2006, the Yirendali People filed their application for a determination of native title over a large area of land in Queensland based around Hughenden, with a majority of the land claimed falling within the Flinders Shire Local Government area. There were 55 respondents including the State of Queensland, minor land holdings relating to air navigation, local government, mining companies and a large number of pastoralists.
The North Queensland Land Council (NQLC) ceased to act for the applicant in July 2010. After the NQLC had ceased to act, the applicants were able to successfully show cause why the matter should continue and, thereafter, the matter had been subject to intensive case management. This resulted in, what Logan J described at [27] as:
a great deal of work has been undertaken by the parties with good will and also guidance from the registrar. That has resulted in agreement being reached in relation to whether particular types of tenure extinguish or do not extinguish native title within the claim area. Much of the claim area is the subject of types of tenure which would either extinguish or at least partially extinguish native title.
Other orders in case management were directed to consensual resolution of the existence of connection and the Commonwealth was prepared to consent to connection. At [30], Logan J expressed his wish, if it were lawfully possible, to divide the application and leave only the contested portions to trial but s 87A of the Native Title Act 1993 (Cth) (NTA) requires the consent of all parties, not just one respondent.
The issue of connection had been set down for trial on 29 June 2015. However, the applicants did not have the funds to incur the costs and expenses of the trial and sought leave to discontinue the proceeding.
The respondents’ position regarding the application to discontinue
Of the 55 respondents in this matter:
the Commonwealth and the State consented to the Court granting the Yirendali People’s request (although the State did set conditions in addition to the requirements of s 62 of the NTA, which Logan J considered would not be appropriate in the circumstances);
the local governments and pastoralists asked the Court to refuse the request;
Glencore Coal Queensland Pty Ltd took a neutral position; and
Telstra, Australia Pacific LNG and the self-represented respondents did not appear.
Discontinuation – Legal framework
The Federal Court Rules 2011 (Cth) give the court an unfettered discretion to grant leave to discontinue. Referring to the observations of Rares J in Levinge on behalf of the Gold Coast Native Title Claim Group v State of Queensland [2013] FCA 634 (Levinge) at [49], that it would be contrary to the interests of justice, the parties and the community to grant leave to discontinue as the applicant could commence fresh proceedings as and when it chose. The proceedings had been on foot for over seven years and the applicant had a full opportunity to litigate its claim.
Logan J applied the same reasoning as that used in Levinge, stating at [33]:
I am most firmly of the view that to grant leave to discontinue in these proceedings, given their history, would bring the administration of justice into disrepute. That particular conclusion I reach just on the history of the present application. That position is underscored, not reached, by reference to earlier litigious history in relation to native title with respect to some or all of the subject land by persons having common apical ancestors to those in the present native title claim group
Award of Costs
Logan J did not order costs against the applicant because the applicant brought the application as soon as it became apparent that it could not secure a consensual determination and realised its funds were not sufficient.