Nona on behalf of the Badu People (Warral & Ului) v State of Queensland

• Jurisdiction: Australia Federal only
• Judge: MORTIMER J
• Judgment Date: 15 July 2020
• Neutral Citation: [2020] FCA 983
• Court: Federal Court
• Date: 15 July 2020

FEDERAL COURT OF AUSTRALIA

Nona on behalf of the Badu People (Warral & Ului) v State of Queensland [2020] FCA 983

File number:	QUD 9 of 2019
Judge:	MORTIMER J
Date of judgment:	15 July 2020
Catchwords:	NATIVE TITLE – application for amendment of claim – application for replacement of applicant – application for joinder – whether claim group given a reasonable opportunity to participate in decision-making process – whether in the interests of justice to allow joinder – discussion of authorisation process under s 251B of the Native Title Act 1993 (Cth) – applications allowed
Legislation:	Federal Court of Australia Act 1976 (Cth) s 37M Federal Court Rules 2011 (Cth) r 8.21 Native Title Act 1993 (Cth) ss 13, 61, 62A, 64, 66B, 84, 84D, 203BE, 251B
Cases cited:	Akiba v Commonwealth [2013] HCA 33; 250 CLR 209 Akiba v State of Queensland (No 3) [2010] FCA 643; 204 FCR 1 Akiba v State of Queensland [2019] FCA 651 Anderson v State of Western Australia [2003] FCA 1423; 134 FCR 1 Anderson v State of Western Australia [2007] FCA 1733 Bell v State of Queensland [2020] FCA 695 Bolton v State of Western Australia [2004] FCA 760 Burragubba v State of Queensland [2017] FCA 373 Byron Environment Centre Incorporated v Arakwal People [1997] FCA 797; 78 FCR 1 Chapman v State of Queensland [2007] FCA 597; 159 FCR 507 Coyne v State of Western Australia [2009] FCA 533 Daniel v State of Western Australia [2002] FCA 1147; 194 ALR 278 Drury v State of Western Australia [2020] FCAFC 69 Far West Coast Native Title Claim v State of South Australia (No 2) [2012] FCA 733; 204 FCR 542 Gomeroi People v Attorney General (NSW) [2017] FCA 1464 Kaurareg People v State of Queensland [2001] FCA 657 Lawson v Minister for Land and Water Conservation (NSW) [2002] FCA 1517 Lennon v State of South Australia [2010] FCA 743; 217 FCR 438 McGlade v Native Title Registrar [2017] FCAFC 10; 251 FCR 172 McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238; 374 ALR 329 Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 Mualgal People v State of Queensland [1999] FCA 157 Murgha v State of Queensland [2011] FCA 1317 NC (dec’d) v State of Western Australia (No 2) [2013] FCA 70 Noble v Mundraby [2005] FCAFC 212 Nona v State of Queensland [2004] FCA 1578 Nona v State of Queensland [2006] FCA 412 Roe v State of Western Australia (No 2) [2011] FCA 102 Sambo v State of Western Australia [2008] FCA 1575; 172 FCR 271 Savage v State of Queensland [2020] FCA 231 Simpson v State of Western Australia [2004] FCA 1752 Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 TJ v State of Western Australia [2015] FCA 818; 242 FCR 283 Ward v Northern Territory of Australia [2002] FCA 1477; 196 ALR 32 Wilson v State of South Australia (No 2) [2016] FCA 812
Date of hearing:	17 June 2020
Registry:	Queensland
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	242
Counsel for the native title applicant:	Ms S Phillips
Solicitor for the native title applicant:	P&E Law
Counsel for the first respondent:	Ms N Kidson QC with Mr M McKechnie
Solicitor for the first respondent:	Crown Law
Counsel for the second to fourth respondents:	The second to fourth respondents did not appear
Counsel for the joinder applicants:	Ms M Bowie

ORDERS

		QUD 9 of 2019
BETWEEN:	VICTOR NONA ON BEHALF OF THE BADU PEOPLE (WARRAL & ULUI) Applicant
AND:	STATE OF QUEENSLAND First Respondent ; TORRES SHIRE COUNCIL Second Respondent ; THOMAS SAVAGE (and another named in the Schedule) Third Respondent

JUDGE:	MORTIMER J
DATE OF ORDER:	15 July 2020

THE COURT ORDERS THAT:

1. Pursuant to section 64(1) of the Native Title Act 1993 (Cth), the applicant is granted leave to amend the Form 1 Application for a determination of native title in accordance with the Form 1 Amended Application annexed as “DJK19” to the affidavit of David John Knobel affirmed 9 April 2020.

2. Pursuant to section 66B(1)(a)(i) of the Native Title Act 1993 (Cth), the applicant Victor Nona be replaced as applicant in the proceeding as amended pursuant to order 1 by Titom Nona, James Ahmat, George Morseu, Harry Nona, Saila Savage, Michael Solomon, Donald Namai, Garagu Kanai and Jean Tamwoy.

3. By 4 pm on 20 July 2020, the applicant file and serve a re-engrossed copy of the amended application and the affidavits of the replacement applicant pursuant to section 62 of the Native Title Act 1993 (Cth).

4. On the filing of the amended application:

   1. Mr Elizah Wasaga and Mr Thomas Savage each cease to be Indigenous respondent parties to the proceeding pursuant to section 84(8) of the Native Title Act 1993 (Cth); and

   2. Albert Bernard Bowie, George Henry Nona, Ronnie Nomoa, Walter Tamwoy and Tommy Willie Tamwoy be joined to these proceedings pursuant to section 84(5) of the Native Title Act 1993 (Cth).

5. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

Introduction and summary

1. This proceeding concerns an application for a determination of native title in relation to two islands in the Torres Strait, Warral and Ului, including all land and waters within the high-water mark of the islands. In its current form, the application is brought by Mr Victor Nona on behalf of the Badu people (or Badulgal) who are asserted to have exclusive proprietary and beneficial rights in the claim area. The proceeding has been on foot in this form for 18 years. Several members of the claim group and the proposed new applicant share surnames, so although I will refer to Victor Nona as Mr Nona in these reasons, I will otherwise refer to members of the claim group and proposed new applicant by their full names, without intending any disrespect.

2. There are three applications before the Court.

3. First, the applicant, which I will refer to as the Badu applicant, seeks leave to amend its claim for a determination of native title under s 64(1A) of the Native Title Act 1993 (Cth).

4. Second, and relatedly, there is an application under s 66B of the Native Title Act to replace the existing applicant with an applicant constituted by different individuals. The proposed new applicant reflects the changes proposed by the amended claim for a determination of native title, and the underlying structure of the amended claim as one made by three groups of people: the Badulgal, Mualgal and Kaurareg...