Greenwood J
This matter concerned an application for interlocutory application costs and related orders arising out of an application by Mr Larry Woosup and others on behalf of the Northern Cape York Group #1 (NCY Group #1) for a determination of native title over a particular area of land and waters of Northern Cape York.
The First Interlocutory Application
On 14 August 2014, the Court ordered the removal of three individuals as respondents to the NCY Group #1 proceedings under s 84(8) of the Native Title Act 1993 (Cth) (NTA). The Court held that the three respondents, as descendants of an apical ancestor in the claim group, are members of the claim group and cannot be both an applicant asserting a right and a respondent asserting the same right, at the same time, in the same proceedings.
The Court concluded that it was unreasonable for the three individuals to continue as respondents once it became clear, and was communicated to them, that they had been accepted as members of the claim group.
The Court was also satisfied that this conduct caused the applicant to incur costs in connection with the NCY Group #1 proceedings that would not otherwise have been incurred and could have been avoided if each respondent had not failed to respond to the applicant's letters and execute a Notice of Ceasing to be a Respondent.
Orders
Orders were made that the three individuals pay the applicant's costs of and incidental to the preparation and serving of the interlocutory application and various affidavits.
The Second Interlocutory Application
The applicant sought orders under s 84(8) of the NTA that Mr Thomas Jawai and Ms Adeline Koroba cease to be parties to the NCY Group #1 proceedings.
Background
12 individual respondents claimed, under s 84(3) NTA, that they had an interest in the claim area which might be affected by a native title determination in the NCY Group #1 proceedings.
Their interest was as a "member of the “Bamaga People”, being Saibai Island People who had been relocated to the “Bamaga area” within the claim area. Expert evidence by anthropologist Dr Redmond stated that, while historical patterns of trade and intermarriage provided the possibility for some Torres Strait Islanders to become inducted into mainland Cape York Aboriginal kin and friendship networks, the mode of traditional recruitment to country in the claim area is through descent of known apical ancestors, who themselves used, occupied and preserved interests in those lands under traditional laws and customs.
Dr Redmond's report concluded that any descendants of an intermarriage between Saibai person and a mainland northern Cape York ancestor attained rights and interests on the mainland only through their mainland ancestor under the traditional laws and customs of the NCY #1 claimant group.
In recognition of the historical rights and interests of the Saibai/Bamaga People the applicant offered to acknowledge these interests in the native title determination and the Bamaga People and the applicant group agreed to remove the towns of Bamaga and Seisa from the claim area and include a schedule of the rights and interests under a Bagama Deed of Grant in Trust (DOGIT), dated 30 May 2013, in any consent determination.
Two members of the Bamaga People did not provide their consent to the agreement.
The respondents claimed that the agreement was not acceptable because of insufficient certainty about the protection of 'other interests' arising under the DOGIT. In particular, that the DOGIT would at some point be ‘transferred’ under the Aboriginal Land Act 1991 (QLD) to the native title holders.
Greenwood J noted that the rights of the Bamaga People under the DOGIT would not be compromised because:
the land the subject of the DOGIT is held on trust for the benefit of the Islander inhabitants and for no other purpose whatsoever.
the proposed determination is intended to expressly recognise (although it may not do so accurately as presently proposed) an “other interest” subsisting in that part of the claim area (DOGIT land) and that land is held solely for the benefit of the Islander inhabitants and for no other purpose.
the proposed determination does not affect the validity of the grant or vesting or the creation of the trust in favour of the Islander inhabitants and there is no inconsistency between the grant under the DOGIT and the determination of native title because s 225(c) and (d) NTA provides for the determination of the relationship between the two sets of rights and the DOGIT land will continue to be held solely for the benefit of the Islander inhabitants notwithstanding the determination of native title.
The respondents wished to seek legal advice about their position if the determination was made and Greenwood J adjourned the application to allow this.
Orders
The interlocutory application was adjourned generally.