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[2019] FCA 108
Federal Court of Australia
2019-02-14
Mr J, Ms J, Rangiah J
Original judgment source is linked above.
RANGIAH J: 1 The principal proceeding is an application for a determination of native title brought on behalf of the Gaangalu People. 2 The application presently before the Court is by Mary Harald for an order joining her as a party to the proceeding. That application is opposed by the Gaangalu applicant. 3 Ms Harald is self-represented. She has filed a brief affidavit in which she deposes that she is a Kanolu woman. She indicates that the traditional country of the Kanolu people includes the western part of the area claimed by the Gaangalu. She deposes that she is descended from Lizzie Butcher/Tiger/Blackwater, an apical ancestor of the Kanolu. 4 There is in evidence an email from Dr Hilda Maclean, a genealogist, who confirms that Ms Harald is descended from Lizzie Tiger/Blackwater, who is named as an apical ancestor of the Gaangalu in their application. 5 There were two previous Kanolu claims, both filed on 23 August 2012 and discontinued on 27 June 2014. The discontinued claims overlapped the western part of the present Gaangalu claim. 6 Ms Harald has filed a statement setting out a compilation of events from her early childhood to adulthood. The statement indicates that she grew up on a property within the claim area that was a sanctuary for Kanolu people and others. Her family has always identified as Kanolu. She deposes that there are a number of significant sites known to the Kanolu people in the claim area. 7 The application for joinder is brought under s 84(5) of the Native Title Act 1993 (Cth), which provides: 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. 8 It is necessary to consider: (a) whether the applicant for joinder has a relevant interest; (b) whether that interest may be affected by a determination in the proceedings; and (c) whether it is in the interests of justice for the person to be joined as a party. 9 As to the first two of these matters, the Gaangalu applicant submits that Ms Harald has not demonstrated that she has an interest that may be affected by a determination in the proceedings. However, that submission is inconsistent with their further submission that Ms Harald is a member of the Gaangalu claim group by reason of her descent from Lizzie Butcher/Tiger/Blackwater. On the Gaangalu case in the principal proceeding, Ms Harald is one of the people who hold native title interests in the claim area, and those interests will be affected by a determination in the proceeding. 10 In my opinion, the application for joinder turns upon the question of whether it is in the interests of justice for Ms Harald to be joined as a party. 11 Ms Harald denies that she is a member of the Gaangalu claim group, claiming instead to be a member of a group of people called the Kanolu. However, she has provided insufficient evidence to indicate that the Kanolu are a distinct group from the Gaangalu with distinct interests that may be affected. 12 On the basis of the description of the Gaangalu claim group in the application, Ms Harald is a member of that claim group by reason of her descent from Lizzie Butcher/Tiger/Blackwater. In Pegler on behalf of the Widi People of the Nebo Estate #1 v State of Queensland [2014] FCA 932, Collier J held at [14] that, as a general proposition, the Court will rarely permit joinder of dissentient members of a native title claim group to the claim. I respectfully agree. To the extent that Ms Harold wishes to assert the interests of the Kanolu, that may be done intramurally. She has not demonstrated any adequate reason for her joinder as a party. 13 In addition, Ms Harald has made her application for joinder at a late stage of the proceedings. Each of the existing parties has filed their lay evidence and expert evidence. The Gaangalu claim is proceeding in step with several other overlapping or interrelated claims. A conference of the anthropological experts engaged in each claim is to be convened for four days from 19 to 22 February 2019. After that conference is completed, the claims will be ready to be listed for trial. 14 If Ms Harald were joined as a party, it would be necessary to allow her to file evidence. That would delay the proceeding. Such evidence would have to be considered by the experts, and could also delay the experts' conference. The joinder of Ms Harald would be likely to cause prejudice to the parties in this and the related proceedings. 15 Ms Harald asserts that she believed that a Kanolu claim had already been made, but has not explained why she thought there was a Kanolu claim on foot when the last Kanolu claim was discontinued in 2014. She blames a native title representative body for not filing a claim, but has not claimed that the body undertook to file a claim and has not explained whether she took steps to discover whether a claim had been filed. I do not accept that Ms Harald has provided an adequate explanation for her delay. 16 For these reasons, it would not be in the interests of justice for Ms Harald to be joined as a party. I will dismiss the application for joinder. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.
SCHEDULE OF PARTIES QUD 33 of 2019 Respondents Fourth Respondent: COMMONWEALTH OF AUSTRALIA Fifth Respondent: NORTH BURNETT REGIONAL COUNCIL Sixth Respondent: ROCKHAMPTON REGIONAL COUNCIL Seventh Respondent: WOORABINDA ABORIGINAL SHIRE COUNCIL Eighth Respondent: PAMELA PETRINA HEGARTY Ninth Respondent: TREVOR LAMB Tenth Respondent: KATHERINE MURPHY Eleventh Respondent: ERGON ENERGY CORPORATION LIMITED Twelfth Respondent: SUNWATER LIMITED Thirteenth Respondent: TELSTRA CORPORATION LIMITED ACN 33 051 775 556 Fourteenth Respondent: ANGLO COAL (CALLIDE) NO 2 PTY LTD Fifteenth Respondent: ANGLO COAL (CALLIDE) PTY LTD Sixteenth Respondent: ANGLO COAL (DAWSON SOUTH) PTY LTD Seventeenth Respondent: ANGLO COAL (DAWSON) LIMITED Eighteenth Respondent: ANGLO COAL (FOXLEIGH) PTY LTD Nineteenth Respondent: ANGLO COAL (GERMAN CREEK) PTY LTD Twentieth Respondent: AURIZON NETWORK PTY LTD ACN 132 181 116 Twenty-First Respondent: AURIZON OPERATIONS LIMITED (ACN 124 649 967) Twenty-Second Respondent: AURIZON PROPERTY PTY LTD (ACN 145 991 724) Twenty-Third Respondent: AUSTRALIA PACIFIC LNG GLADSTONE PIPELINE PTY LIMITED Twenty-Fourth Respondent: AUSTRALIA PACIFIC LNG PTY LIMITED ABN 68 001 646 331 Twenty-Fifth Respondent: BRONCO ENERGY PTY LIMITED ABN 70 121 979 664 Twenty-Sixth Respondent: CAML Resources Pty Ltd Twenty-Seventh Respondent: COOK RESOURCE MINING PTY LTD Twenty-Eighth Respondent: ENEX TOGARA PTY LIMITED Twenty-Ninth Respondent: GWM RESOURCES NL Thirtieth Respondent: HARCOURT (QUEENSLAND) LLC Thirty-First Respondent: HARCOURT PETROLEUM NL Thirty-Second Respondent: JEMENA QUEENSLAND GAS PIPELINE (1) PTY LTD Thirty-Third Respondent: JEMENA QUEENSLAND GAS PIPELINE (2) PTY LTD Thirty-Fourth Respondent: KGLNG E&P II PTY LTD Thirty-Fifth Respondent: KGLNG LIQUEFACTION PTY LTD Thirty-Sixth Respondent: MATILDA COAL PTY LIMITED Thirty-Seventh Respondent: MITSUI MOURA INVESTMENT PTY LTD Thirty-Eighth Respondent: NIPPON STEEL & SUMITOMO METAL AUSTRALIA PTY LTD Thirty-Ninth Respondent: NORTON GOLD FIELDS LIMITED Fortieth Respondent: OCEANIC COAL AUSTRALIA LIMITED Forty-First Respondent: PAPL (DOWNSTREAM) PTY LIMITED Forty-Second Respondent: PAPL (UPSTREAM II) PTY LTD Forty-Third Respondent: SANTOS GLNG PTY LTD Forty-Fourth Respondent: SANTOS QNT PTY LTD ABN 33 083 077 196 Forty-Fifth Respondent: TOTAL E&P AUSTRALIA III Forty-Sixth Respondent: TOTAL GLNG AUSTRALIA Forty-Seventh Respondent: VALE BELVEDERE (BC) PTY LTD Forty-Eighth Respondent: VALE BELVEDERE PTY LTD Forty-Ninth Respondent: WESTSIDE ATP 769P PTY LTD Fiftieth Respondent: WESTSIDE CSG A PTY LTD Fifty-First Respondent: WESTSIDE CSG D PTY LTD Fifty-Second Respondent: JAMES CHARLES WISE Fifty-Third Respondent: HAZEL LAUREL ANDERSON Fifty-Fourth Respondent: DEBORAH LEIGH AUSTIN Fifty-Fifth Respondent: MICHAEL JAMES AUSTIN Fifty-Sixth Respondent: KEVIN WILLIAM BARTON Fifty-Seventh Respondent: THOMAS JOHN BEHAN Fifty-Eighth Respondent: ALAN JEFFREY DAVEY Fifty-Ninth Respondent: CAROLE ANN DAVEY Sixtieth Respondent: ANNE MARY DUNNE Sixty-First Respondent: BARRY STUART HOARE Sixty-Second Respondent: CLAIRE JENNIE HOARE Sixty-Third Respondent: ANTHONY JOHN JONES Sixty-Fourth Respondent: DAWN PATRICIA JONES Sixty-Fifth Respondent: BRENDAN GERRARD MCAULIFFE Sixty-Sixth Respondent: DEBORAH FAYE MCAULIFFE Sixty-Seventh Respondent: ANDREW EDWARD MCCAMLEY Sixty-Eighth Respondent: DIANA MCCAMLEY Sixty-Ninth Respondent: SCOTT JEFFREY MCCAMLEY Seventieth Respondent: ANDREW REA Seventy-First Respondent: ROBERT MATTHEW REIMER Seventy-Second Respondent: JUNE ELLEN ROSS Seventy-Third Respondent: DARRYL RONNAN SUTTLE Seventy-Fourth Respondent: SHELLYMAREE SUTTLE Seventy-Fifth Respondent: THE FINANCE PTY LTD Seventy-Sixth Respondent: LISA J TYNAN Seventy-Seventh Respondent: WOORABINDA PASTORAL COMPANY Interlocutory Applicant: Mary Harald
Blucher on behalf of the Gaangalu Nation People
State of Queensland