In the decision of Weribone on behalf of the Mandandanji People v State of Queensland  FCA 225 made on 25 March 2013, Federal Court judge Steven Rares ordered that all native title payments by various entities including Origin Energy, Australian Pacific LNG and Santos Limited to the Mandandanji People be paid to the Registrar (Registrar) of the Federal Court of Australia (Court) to be held for the benefit of the native title claim group.
The decision arose as a result of two competing applications under section 66B of the Native Title Act 1993 (Cth) (Act) to replace the current applicants in the proceedings. The competing applications stemmed from a dispute between members of the claim group and a divergence in anthropological evidence in relation to the addition of a further apical ancestor to the claim.
In his judgment, Judge Rares was concerned to protect monies paid for the benefit of the claim group until a final determination of native title is made and the correct recipients of the proceeds of native title payments identified. Judge Rares was also concerned that funds held for the benefit of the claim group were not being appropriately distributed as evidence was led to the effect that, while approximately $2.3 million was being held on trust for the Mandandanji People, certain members of the claim group had insufficient funds to travel to a meeting held in a neighbouring town.
At paragraph 79 of his judgment, Judge Rares stated:
“The assets to which the members of the native title claim group may be entitled were in danger because the differing positions of its members made the applicant dysfunctional.”
As a result of the dysfunctional nature of the claim group, Judge Rares made certain orders to protect money and other entitlements obtained by the claim group for the benefit of those persons ultimately found to be entitled to the benefit of a determination of native title in the proceedings. These orders included orders that:
until a determination of native title is made, all monies (including both native title compensation and payments for heritage survey work but not including reimbursements for certain expenses) payable to:
- the applicant;
- the native title claim group; or
- any members of the native title claim group,
are to be paid to the Registrar to be held for the benefit of the native title claim group; and
- within 90 days of the date of the order, any applicants who have received money payments or benefits are required to submit a statement to the Registrar containing the details of all money payments and other benefits received by that individual, or paid to another person or entity at the direction of that individual, as a consequence of that individual being a member of the native title claim group.
Significance of the decision
The decision raises questions in relation to the capacity of the Court to manage the potentially large sums of money which may be received as a result of this decision and any further similar decisions in other states across Australia. While this is only a decision of a single judge and, as such, may be subject to appeal it is of significance to the resources sector in Western Australia due to the large number of native title payments being made pursuant to native title agreements, and the fact that there are also dysfunctional claim groups, in Western Australia.