Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369 | Case summary

RANGIAH J: 1 The principal proceeding is an application for a determination of native title over an area in Central Queensland (the Gaangalu claim). 2 The interlocutory application presently before the Court is by Trevor Maxwell Lamb for joinder as a party to the Gaangalu claim pursuant to s 84(5) of the Native Title Act 1993 (Cth) (the NTA). Mr Lamb was previously a respondent to the Gaangalu claim, but he withdrew, and now seeks to rejoin the claim. 3 It is necessary to begin by explaining that Mr Lamb is a member of an applicant (the Warrabal applicant) which has brought an application for a determination of native title on behalf of the Warrabal People (QUD580/2017) (the Warrabal claim). The Warrabal claim wholly overlaps the Gaangalu claim. On 3 August 2018, the Warrabal applicant filed an application for leave to discontinue the Warrabal claim. I have today granted that leave: see Anderson on behalf of the Warrabal People v State of Queensland [2018] FCA 1365. My reasons in that matter should be read together with these reasons. Mr Lamb's application to rejoin the Gaangalu claim has been made in anticipation of the Warrabal claim being discontinued. 4 The applicant in the Gaangalu claim (the Gaangalu applicant) opposes Mr Lamb's application for joinder. The State of Queensland does not oppose the application. The Gaangalu applicant submits that Mr Lamb has not demonstrated a prima facie case that he has an interest that may be affected by a determination. It also submits that Mr Lamb having been a party, made a deliberate decision to withdraw, should be held to that decision. Further, the Gaangalu applicant claims that it will be prejudiced if the joinder is allowed. 5 Mr Lamb is the grandson of Mary Ann Lamb, who was born in about 1870 and lived most of her life in the area surrounding Mount Morgan until her death in 1948. Mr Lamb deposes that he was told by his father that Mount Morgan and the catchments of the Dee and Don Rivers were part of the traditional country of Mary Ann Lamb. Those areas are within the Gaangalu claim area. Mary Ann Lamb has not been named as an apical ancestor of the Gaangalu claim group and is not otherwise recognised in the application as having had native title interests in those areas. Mr Lamb therefore opposes the Gaangalu application. 6 Mr Lamb has deposed to a long history of opposition to the Gaangalu claim, commencing with his attendance at the authorisation meeting in July 2012. When the Gaangalu application was filed, Mr Lamb and his cousin (now deceased) notified the Court in accordance with s 84(3)(b) of the NTA and thereby became parties to the proceeding. 7 On 30 September 2013, Dowsett J ordered that the National Native Title Tribunal conduct an inquiry as to whether Mary Ann Lamb should be included as one of the ancestors of the Gaangalu claim group. Mr Lamb participated in that inquiry by giving oral and affidavit evidence. A report was eventually produced, but that did not resolve the dispute. 8 In an affidavit in support of his application for joinder, Mr Lamb deposes: 10. From 25 August to 7 October 2015, I participated in mediation seeking to resolve my interests in the proceeding which involved meetings with the GNP Applicant and a conference of experts. In summary, the outcome of mediation was that on condition that my cousin Shirley Anderson and I withdrew as respondents, the GNP Applicant agreed to put the inclusion of Mary Ann Lamb as an apical ancestor to the GNP claim group to a meeting held on 10 December 2016 (the second authorisation meeting). 11. I attended the second authorisation meeting at which the GNP claim group chose not to include Mary Ann Lamb as a GNP apical ancestor. In accordance with the outcome of mediation, I gave JUL instructions to file a notice indicating that I no longer wished to be a respondent which was filed on 1 March 2017. Almost three years after joining, it seemed to me that I would never have my interests recognised through being a respondent to GNP. (Underlining added.) 9 However, Mr Lamb's solicitor, Mr Besley, deposes that: 5. I attended the mediation referred to in paragraph 10 of Mr. Lamb's affidavit and I recall that the outcome was not that he and Shirley Anderson should withdraw as respondents but that the Interlocutory Application filed 5 June 2015 on behalf of Shirley Anderson seeking to strike out the GNP claim, was to be withdrawn. 6. On 8 October 2015, I received an email from Registrar Fewings, who had conducted the mediation which describes the outcome. (Underlining added.) 10 The email from Registrar Fewings stated: I will not make formal directions but confirm that Shirley Anderson will withdraw her interlocutory application within 7 days. I also confirm that, within 14 days, you will consult and provide a report to me setting out the agreed outcomes from the mediation and the steps and timeframes necessary for arranging the authorisation meeting. 11 Mr Lamb deposes that the outcome of the mediation was that he and Ms Anderson would withdraw as respondents in return for the applicant putting the inclusion of Mary Ann Lamb as an apical ancestor to the Gaangalu claim group. In contrast, Mr Besley deposes that the outcome was that Mr Lamb and Ms Anderson only agreed to the withdrawal of Ms Anderson's application to strike out the Gaangalu claim. The discrepancy between the evidence of Mr Lamb and Mr Besley has not been explained. Neither of them was required for cross-examination. The Gaangalu applicant has not offered any evidence upon this issue. Mr Besley's version seems more consistent with the email from Registrar Fewings and I therefore accept his evidence. 12 On 10 December 2016, the Gaangalu claim group held a meeting at which it considered whether to include Mary Ann Lamb as a Gaangalu ancestor. The claim group made a decision to not include her. Mr Lamb then gave his solicitors instructions to file a notice that he no longer wished to be a respondent. That notice was filed on 1 March 2017. The explanation he provides for that step is that: Almost three years after joining, it seemed to me that I would never have my interests recognised through being a respondent to GNP. 13 Mr Lamb attended a meeting on 22 April 2017 at which he and eight other people were authorised to make the Warrabal claim. He deposes that his reason for bringing the Warrabal claim was "to get recognition of my native title rights and interests in the overlap area as Mary Ann Lamb's grandson". The Warrabal application was filed on 25 October 2017. 14 Registration of the Warrabal claim was rejected under s 190A(6B) of the NTA on the basis, inter alia, that it was not properly authorised. The Warrabal applicant, including Mr Lamb, accepts that the Warrabal claim was not properly authorised and is therefore fundamentally and fatally flawed. They sought leave to discontinue the Warrabal claim for this reason. 15 As to his reasons for seeking to rejoin the Gaangalu proceeding, Mr Lamb deposes that: I do not support a determination in favour of GNP over the overlap area because that is the traditional country of Granny Lamb and she is not an apical ancestor for their claim. I wish to rejoin as a respondent to GNP so I can prove that they do not hold native title over my grandmother's country in the overlap area. 16 Mr Lamb deposes that if he is joined as a respondent to the Gaangalu claim, he will comply with the programming orders made in the matter and will participate in any trial which may occur. 17 Section 84(5) of the NTA provides: (5) The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings and it is in the interests of justice to do so. 18 Section 84(5) of the NTA was amended in 2007 to add the words "and it is in the interests of justice to do so". It has been held that those words do not add anything to the provision: Barunga v State of Western Australia (No 2) [2011] FCA 755 at [163]; Jacob v State of Western Australia [2014] FCA 1106 at [4]. While it is true that the amendment may make no practical difference to the outcome of any case, in my opinion, it does affect the way in which s 84(5) operates. Once the Court decides whether it is satisfied that the person's interests may be affected by a determination and whether it is satisfied that it is in the interests of justice that the person be joined, there is no residual discretion to exercise. 19 Accordingly, in an application for joinder under s 84(5) of the NTA, it is necessary to consider: (1) whether the applicant for joinder has an interest; (2) whether that interest may be affected by a determination in the proceedings; and (3) whether it is in the interests of justice for the applicant to be joined as a party. 20 It is necessary for an applicant for joinder to demonstrate a prima facie case that he or she has interests that may be affected by a determination: Wakka Wakka People #2 v State of Queensland [2005] FCA 1578 at [6], Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [8]. Mr Lamb submits that he has native title rights and interests in the Gaangalu claim area. Mr Lamb's position has been somewhat inconsistent over the years. He has variously asserted that Mary Ann Lamb was a Gaangalu person (so that he, as her descendant, is a member of the Gaangalu claim group); and also that the Gaangalu do not hold native title over the area because such interests are held by a different group (of which Mary Ann Lamb was an ancestor). However, it must be acknowledged that he has been consistent in his assertion that Mary Ann Lamb held native title rights and interests in the claim area. I accept that he has demonstrated a prima facie case that he, as her descendant, is a person who now holds those rights and interests. 21 The authorities establish that for the purposes of an application for joinder under s 84(5) of the NTA: (1) The interests of persons who claim to hold native title rights and interests in relation to the land or waters the subject of a proceeding may be sufficient interests. (2) A member of another native title group cannot be joined as a respondent for the purpose of acting as a representative to assert native title rights on behalf of the other group. That is because the combined effect of ss 13, 61, 213 and 225 is that an application for a determination of native title can only be made by a duly authorised applicant using the procedures in Pt 3 of the NTA. (3) A member of another native title group may be joined as a respondent for the purpose of "defensively asserting" native title rights and interests. Such a person is only permitted to pursue a personal claim to such rights and interests: that is, to protect them from erosion, dilution or discount. [See Munn v State of Queensland [2002] FCA 486 at [8]; Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 at [22], [24]-[25]; Worimi Local Aboriginal Land Council v Minister for Lands (NSW) (2007) 164 FCR 181 at [10]-[11], [26]; Commonwealth v Clifton (2007) 164 FCR 355 at [48], [57]-[58] and [61]; Moses v Western Australia (2007) 160 FCR 148 at [18]; Holborow v State of Western Australia [2009] FCA 1200 at [4]-[5]; Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [15]-[21]; Lander v State of South Australia [2016] FCA 307 at [73]; A.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 2) [2013] FCA 1000 at [56]-[57]; Turrbal People at [18]-[19].] 22 As s 68 of the NTA provides that there can only be one determination of native title for an area, I accept that a determination in favour of the Gaangalu people would affect any native title rights and interests that Mr Lamb may hold. I accept that his present purpose is to assert that the Gaangalu "do not hold native title over my grandmother's country". In other words, he wishes to assert native title over the claim area in order to defeat the Gaangalu claim, rather than purporting to make, in a backdoor way, an unauthorised application for recognition of a native title. 23 It is next necessary to consider the question of the interests of justice under s 84(5) of the NTA. In Gamogab v Akiba (2007) 159 FCR 578, Gyles J (with whom Sundberg J agreed) observed that: (1) It is relevant that the applicant for joinder could have been joined as of right if he or she had applied in time. That indicates that the principal issue is to assess the prejudice occasioned to the other parties and the Court by the delay in applying to be joined (at [59]). (2) It would be odd in this day and age if delay in applying, in itself, were to radically prejudice a potential party (at [59]). (3) It is fundamental that an order which directly affects a third person's rights or liabilities should not be made unless the person is joined as a party (at [60]). (4) Considerable weight should be given to the statutory intention of having all parties whose interests may be affected before the Court at the one time to be dealt with by the one determination (at [64]). (5) If necessary, conditions may be imposed upon a joinder (at [63]). 24 The fact that an applicant for joinder could have joined as of right by giving a notice under s 84(3)(b) of the NTA within the prescribed time is usually a significant factor. That is not so in this case. Mr Lamb was a respondent, but he voluntarily withdrew. He apparently acted with the benefit of legal advice, as he was represented by solicitors. He withdrew because "it seemed to me that I would never have my interests recognised through being a respondent". It seems odd that he only came to that realisation at that time, as any interests he may have were never capable of being "recognised" through his position as a respondent. 25 Mr Lamb has now changed his mind about being a party. This has apparently come about because the Warrabal application, through which he sought recognition of his interests, has failed. He now seeks to rejoin the Gaangalu application in order to oppose it. 26 In Gamogab at [60], it was observed that it is fundamental that an order which directly affects a person's rights or liabilities should not be made unless the person is joined as a party. I do not think the Full Court was suggesting that there may not be circumstances where a person's conduct and the prejudice that will be caused to other parties require that joinder should be refused even though the person's rights may be affected. An example of such a case was Brooks on behalf of the Mamu People v State of Queensland (No 2) [2013] FCA 557, where the proceeding had been set down for a consent determination. Two members of another group applied to be joined as a parties at the last minute for the purpose of opposing the applicant's claim over a part of the claim area. The application for joinder was refused in circumstances where the delay had not been satisfactorily explained, where the other group had earlier appeared to abandon any claim over the relevant area and where there was resulting prejudice to the parties. Another, very recent, example of such a case is Stock on behalf of the Nyiyaparli People v State of Western Australia (No 4) [2018] FCA 1370. 27 In this case, I am not satisfied that Mr Lamb has provided a satisfactory explanation for his conduct in seeking to rejoin the proceeding as a respondent after having withdrawn. That is particularly so as his withdrawal seems to have been tactical, considered and done with the benefit of legal advice. In these circumstances, substantially less weight should be given to the possible prejudice to Mr Lamb's interests and greater attention should be given to the potential prejudice to the parties and the potential for disruption of programming orders that have been put in place for the management of the Gaangalu claim and the cluster of related claims. 28 My strong inclination is to refuse Mr Lamb's application for joinder. His conduct in withdrawing and then seeking to rejoin the proceeding without a satisfactory explanation should not be condoned or given any encouragement. However, after considerable reflection, I have decided that the joinder should be permitted for the reasons that follow. 29 Firstly, there is limited relevant prejudice to the Gaangalu applicant. There is no evidence that the Gaangalu applicant is now in a significantly different position to the position it would have been in if Mr Lamb had not withdrawn as a respondent. Except for a relatively short period between Mr Lamb's withdrawal as a respondent to the Gaangalu claim and the filing of the Warrabal claim, it has been apparent that he has maintained his opposition to the Gaangalu claim. Accordingly, this is not a case like Mamu, where the rival group had appeared to abandon any claim that they had native title interests in the claimed area. The position would have been different if I had accepted, in accordance with Mr Lamb's affidavit, that it was part of the mediated outcome that he withdraw as a respondent, but I have not accepted this aspect of Mr Lamb's evidence to be accurate in light of Mr Besley's affidavit. 30 It is true that the joinder means that the Gaangalu applicant's prospects of obtaining a consent determination are reduced, but the State of Queensland may, in any event, have required adequate evidence that the claim was properly authorised and that the descendants of Mary Ann Lamb were not part of the claim group. The State has duties to both indigenous and non-indigenous citizens: see Brooks on behalf of the Mamu People v State of Queensland (No 3) [2013] FCA 741 at [36]. I do not think that the mere fact that the Gaangalu applicant faces another opponent with different grounds of opposition is, of itself, relevant prejudice that should count against Mr Lamb's joinder. 31 Secondly, while the Gaangalu application has been on foot since 2012 and Mr Lamb's application has come at a late stage, it is relevant that the proceeding has not yet been set down for trial and is still progressing through a series of programming orders. While there is the potential for disruption to the programming orders, Mr Lamb has deposed that he will comply with those orders. The solicitors for Mr Lamb have indicated that they are acting on a pro bono basis, but they have raised no suggestion that they will not continue to act as his solicitors. In view of the work that those solicitors must already have done in respect of the Warrabal claim, they can be expected to be in a position to comply with the existing programming orders, perhaps subject to some slight adjustments. Mr Lamb and his solicitors can expect to be held strictly to the programming orders. 32 Thirdly, I have found that Mr Lamb has demonstrated a prima facie case, that he is a holder of native title rights and interests in part of the Gaangalu claim area which may be defeated by a determination. The Gaangalu applicant has not contended to the contrary. 33 Finally, it seems very unlikely that any future Warrabal claim could successfully be authorised. Therefore, Mr Lamb's only real prospect of opposing the Gaangalu claim lies in his being a respondent. In circumstances where he has demonstrated an arguable case that he holds rights and interests in the area, it would be harsh to deprive him of that opportunity. While I have been critical of his conduct, I do not think that his conduct is such as to disqualify him from being afforded the opportunity of opposing the Gaangalu claim. 34 I will order that Mr Lamb be joined as a respondent to the proceeding. I will hear the parties as to the programming orders that ought to be made to take into account the joinder. 35 I will consider any orders that the applicant may propose as to the consequences of any failure by Mr Lamb to comply with the programming orders, which may include an order that the applicant be at liberty to apply under s 84(8) of the NTA for an order that Mr Lamb cease to be a party to the proceedings. I will hear any application for costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

Blucher on behalf of the Gaangalu Nation People v State of Queensland

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