Butterworth on behalf of the Wiri Core Country Claim v State of Queensland [2010] FCA 325 | Case summary

Norman Abraham Johnson, Kahlia Charmaine Mallie, Norman Abraham Yurunga Johnson, Ruth Johnson, Coedie McAvoy, Duncan Johnson, Sarah Jane Frescon, Bowman R. Johnson, Hedley Bowman Henningsen and Alana Page are dismissed as parties to the proceedings. 2. No order is made as to costs. 3. Liberty to apply is granted to Norman Abraham Johnson, Kahlia Charmaine Mallie, Norman Abraham Yurunga Johnson, Ruth Johnson,Coedie McAvoy, Duncan Johnson, Sarah Jane Frescon,Bowman R. Johnson, Hedley Bowman Henningsen and Alana Page in respect of their joinder, if so advised, on evidence and upon application served on the other parties. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

REASONS FOR JUDGMENT 1 On 2 April 2009, a re-engrossed copy of an application for a native title determination, in Form 1, was filed pursuant to orders made on 27 March 2009. The application in its amended form, which I shall term the Wiri Core Country Claim, was filed by the North Queensland Land Council Aboriginal Corporation on behalf of applicants named in the application in its amended form. The application states: The applicants are entitled to make this application as: (a) Aboriginal persons descendant from [named persons], including materially, for present purposes, [named person], who belong, according to traditional law and custom to the Wiri people; and (b) as the persons authorised by all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the native title claimed by the Wiri people. 2 Attachment S2 to the application is an affidavit of one Alison Rebecca Pembroke, sworn on 18 February 2009. Ms Pembroke is a consultant anthropologist. She deposes in her affidavit to an engagement by the North Queensland Land Council and to an earlier engagement by the Central Queensland Land Council to conduct research for the Wiri people. She states, inter alia, in that affidavit that: Membership of the Wiri group is based on a person's filiation, including adoption to either one's father or one's mother who is a recognised Wiri person. The Wiri group includes members of - [[s]he sets out certain descent groups which include the descendants of Mary Johnson]. 3 The Wiri Core Country Claim was notified as the Native Title Act 1993 (Cth) (Native Title Act) required. A sequel to that notification was the receipt by the Court's District Registrar of a letter dated 8 February 2010 from Mr Norman A. Johnson for and on behalf of himself and other named persons, namely, Lahlia Charmaine Mallie, Norman Abraham Yurunga Johnson, Ruth Johnson, Coedie McAvoy, Duncan Johnson. Sarah Jane Frescon, Bowman R. Johnson, Hedley Bowman Henningsen and Alana Page. In that letter Mr Norman Johnson, who records that his tribal name is Nigitthi, states that he is writing in response to the public notice referring to the Wiri Core Country Claim in this Court. He further states that the response is particularly in relation to himself and other members of the Wiri people. There is an assertion in the letter by Mr Johnson that he and others have been excluded from the applicant list without any authorisation to make amendments. He asserts further that the Johnson family has been totally excluded from all native title matters in our country since unauthorised changes were made to the application. 4 Enclosed with that letter are notices in Form 5 both by Mr Norman Johnson and each of the other persons to whom I have made reference and to whom Mr Johnson referred in his letter. In each of those applications in Form 5 there is a statement in these terms: I have Traditional Connection to and Native Title and Cultural Heritage "rights and interests" in the lands over which this NT Application has been made. [sic] 5 I do not have any evidence before me that the Wiri Core Country Claim was anything other than authorised in terms of the Native Title Act. 6 Mr Kenneth Dodds, by affidavit, filed on 7 December stated that he is one of the persons who jointly make up the applicant in the Wiri Core Country claim. He stated that he was authorised to make the affidavit on behalf of the persons who constitute the applicant. He then made reference in his affidavit to the subject of compliance with directions which I have made on 2 October 2009 with respect to the further progression of this matter. He deposes to the holding on 31 October of a Wiri claimant community meeting, at Mackay, at which he was present to consider the claim and to meet with a named consultant anthropologist. He further deposes to another meeting on 5 December 2009, which took place at Mackay. At that meeting, he states there was discussion about compliance with the orders which I have made. A decision resulted from that meeting to engage a Dr Taylor, an anthropologist. Suffice it to say, Dr Taylor, in the result, came to be engaged. I made directions earlier today in respect of the further conduct of the application having regard to that engagement. 7 In response to Mr Johnson's letter and at my direction, the Deputy Registrar responsible for native title sent to him a letter which requested that he show cause today why he and the other persons named in this matter should become parties to the proceeding. Copies of that letter were also sent to the other parties. 8 Section 84(3) of the Native Title Act provides that: Another person is a party to proceedings if: (a) any of the following applies: (i) the person is covered by any of subparagraph s 66(3)(a)(i) to (v). (ii) the person claims to hold native title in relation to land or waters in the area covered by the application. (iii) the person's interest in relation to land or waters may be affected by determination of the proceedings; and. (b) the person notifies the Federal Court, in writing, that the person wants to be a party to the proceeding: (i) within the period specified in the notice under section 66, or (ii) if notice of an amended application is given under paragraph 66A(1)(e) - within the period specified in the notice under that paragraph. 9 It suffices to say that Mr Norman Johnson and each of the other persons whom I have mentioned are persons who fall within the terms of s 84(3)(a) and, further, are persons who have given notice in writing in Form 5 within the period set out in s 84(3)(b). What follows from that is that each of those persons is an affected person in terms of s 84(3) and, by force of that subsection, is a party to the proceedings. 10 That said, s 84 makes further provision, by s 84(8), for the Court at any time to order that a person, other than the applicant, cease to be a party to the proceedings. 11 By s 84(9), Parliament has provided that: (9) The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that: (a) the following apply: (i) the person's interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and (ii) the person's interests are properly represented in the proceedings by another party; or (b) the person never had, or no longer has, interests that may be affected by a determination in the proceedings. 12 At first blush, the impression which I had of s 84(9) was that there was an ability found in subpara (a)(ii) to consider making an order of dismissal on the basis that the person's interests could properly be represented in the proceedings by another party. On a closer reading of s 84(9), it seems to me that the presence of the conjunctive word "and" means that both (a)(i) and (a)(ii) must be satisfied before a basis upon which dismissal under s 84(9)(a) might exist. It cannot be said that the interests of Mr Norman Johnson and the other named persons may be affected by determination of proceedings merely because they have, or at least assert, a public right of access over, or use of any of the area covered by the application. To that extent, the provision of consideration of dismissal arising ‑ which would arise under section 84(9)(a) is not satisfied. 13 Each of those persons is, though, someone whose interests prima facie are represented by the applicant. Why that is so requires reference to other provisions in the Native Title Act. 14 Section 61(1) provides in the table under subs (1) that a native title determination application may be made by: A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed provided the person or persons are included in the native title claim group. 15 Section 61(2) provides that, materially: In the case of: (a) a native title determination application made by a person or persons authorised to make the application by a native title claim group; or … The following apply: (c) the person is, or the persons are jointly, the applicant; and (d) none of the other members of the native title claim group is the applicant. 16 One sees then in s 61(2) a dichotomy between the applicant, a group of properly authorised persons, and a native title claim group. There is not contemplated that there will be any necessary symmetry between the native title claim group membership and that person or those persons who individually or collectively come to constitute "the applicant" for the purposes of the Native Title Act. 17 Section 62A of the Native Title Act confers particular powers on an applicant in respect of an application of the present kind, ie, a claimant application. That power is to deal with all matters arising under the Act in relation to the application; in other words, the Native Title Act contemplates that a group of authorised persons drawn from the native title claim group, and authorised by that group, will have, under the name of the applicant, the conduct of the claimant application. 18 The situation that presently exists is not one which is the subject of direct precedent. Mr Johnson is acknowledged by the applicant, in open court, as being a Wiri man. There is no dispute from any of the other respondent parties that, at least prima facie, he is a Wiri man. There is in evidence in other proceedings which have occurred an affidavit from Mr Johnson which details his ancestry. He details his ancestry in a way which traces that ancestry back to the Mary Johnson who is named in the amended application. He deposes further in tracing that ancestry to a role as a Wiri Elder. 19 The situation, therefore, is one where a person who is a member of the native title claim group has lodged an application which entitles him as of right and per force of statute to the status of a party to the proceedings. It does not follow from this that such a person must necessarily remain a party to the proceedings. 20 Reference was made from the bar table both by Mr Johnson and also the applicant by its counsel to there being something of a history in this case. There is undoubtedly an earlier history of involvement of the Central Queensland Land Council and, perhaps also, another land council, apart from now the North Queensland Land Council. 21 In its present form though, the Wiri Core Country Claim is one in respect of which instructions have been given by the applicant to the North Queensland Land Council. My observation of the case at the present directions hearing, and that held on 2 October last year, is that, whatever difficulties there might earlier have been in relation to the prosecution of this application, they are not present now. There is quite different legal representation on behalf of the applicant and that has been very much evident to me in the way in which directions made by the court have been complied with and the way in which the further conduct of this case, as proposed by work plan, has been put forward on behalf of the applicant. 22 I have also received expressly in open court a statement on behalf of the applicant of its intention to represent the applicant and, through the applicant, all of the members of the native title claim group. 23 Whilst there is no direct precedent for whether there ought to be a dismissal in the present circumstances, some guidance is offered by decisions which have considered the question of whether an application for joinder as a party made out of time by a member of a native title claim group ought to be made. These cases have arisen under s 84(5). 24 In one such case, Kulkagal People v State of Queensland [2003] FCA 163, Drummond J expressed the opinion that there was, in the Native Title Act, no room for a principle that a person represented in an action by a representative applicant could, if dissatisfied with the way the representative applicant was conducting the application, be joined as a respondent in the proceedings. That is not a view which has come universally to be shared by other judges sitting in the Court's original jurisdiction. 25 It is neither necessarily nor desirable for me to make any pronouncement in respect of the question because I am not faced with a joinder issue under section 84(5), but rather a question as to whether a party, joined as a right per force of statute under s 84(3), ought to be dismissed. It is in that context that cases where there has been a consideration of joinder out of time offer, if only by illustration, some guidance. Once again, a range of views in the court is evident. 26 Thus, in Combined Dulabed and Malanbarra/Yidinji Peoples v Queensland (2004) 139 FCR 96 at [45], Spender J stated that he preferred a view of Ryan J as to power and then continued: [There is] power … to make the dissentient group a party to the proceedings as a respondent. Whether it is discretion that is conferred by s 84(5) Act is to be exercised in the circumstances of a particular case must depend on the circumstances of that case, including the history of it. 27 His Honour's reference to a decision of Ryan J is a reference to Bidjara People No. 2 v State of Queensland [2003] FCA 324. In that case, at [7], his Honour observed: It is true that s 61(1) requires an applicant to be authorised by all the members of the native title claim group and s 66B enables an applicant to be replaced when he or she is no longer authorised by the claim group to make the application or to deal with the matters arising in relation to it. However, that section does not accommodate the situation which has arisen here, where the applicants retain the authorisation, as I understand it, of the majority of the claimant group, but there are one or more dissentient members of the group. In that event, it can hardly be contended that the claim should lapse. However, it would also lead to injustice if the dissentient members were thereafter denied a voice in the determination of the claim. They clearly remain persons whose interests may be affected by a determination in the proceedings within the meaning of s 84(3)(ii) or (iii). It would unnecessarily multiply proceedings to require those persons to institute their own claims. Accordingly, I consider, notwithstanding the views expressed by Drummond J in Kulkalgal People that such persons can be made parties pursuant to s 84(5). His Honour went on, in the circumstances of that case, to make a joinder order in respect of what one might term dissentient members of a native title claim group. 28 In Combined Dulabed and Malanbarra/Yidinji Peoples v Queensland (2004) 214 ALR 306, Kiefel J, then a member of this Court, was faced also with a question as to whether there ought to be joined, under s 84(5), persons who contended that the applicant in the proceedings was not properly representative of all persons in the claim group. Her Honour made reference to the earlier decisions of Spender J and Ryan J to which I have already referred. Having so done, she added at [12]: Assuming there to be power one would expect that it would not be granted as a matter of course and upon assertions about lack of representation. There would at the least need to be shown a real difficulty in that person's interests being represented. 29 Were this an application in respect of which there had been an omission of reference to Mary Johnson and then a filing of applications in Form 5 by Mr Norman Johnson (and the other persons I have named), I would not for one moment contemplate the making of an order of dismissal. That would plainly be a circumstance where it was necessary in the context of the proceedings to hear from a group of persons who also claimed that they were persons who held native title in respect of the land the subject of the application. 30 That though is not the present case. There is an express reference to the relevant ancestor, Mary Johnson, in the application. Further, and more importantly, there is an express acknowledgement in open court by the applicant of Mr Norman Johnson's standing as a Wiri man and, further, of responsibilities which an applicant has from time to time to consult with the native title claim group. 31 To consult with a native title claim group means to extend an opportunity to that group to be heard on appropriate occasions. It does not mean that a single member or group of members in a native title claim group can presume to dictate the decisions which a native title claim group might have from time to time to make as a way of giving guidance to an applicant in respect of the carriage of a native title application. 32 I can well contemplate that circumstances may arise in the course of an application where it would be appropriate for there to be a joinder as a party of what have been termed in earlier cases dissentients. In the ordinary course of events though, it seems to me that the scheme of the Native Title Act is that the native title claim group authorise particular persons to act on their behalf in the management of an application. That, to me, is an indication of a parliamentary intent that there be a reasonable and practical way of giving instructions in respect of the conduct of an application, for the benefit not only of the members of the native title claim group but also for the benefit of those respondents who necessarily have to deal with the native title application. 33 In other words, it seems to me that, whilst upon the filing of an application in Form 5 within time, in terms of s 84(3) of the Native Title Act, there is a joinder by persons such as Mr Norman Johnson, it does not follow from this that such persons must necessarily remain a party. To take a contrary view would, in effect, be subversive of the very reason for the existence of an applicant. In other words, in theory, each of the persons who comprise the native title claim group could lodge an application in Form 5 and become parties in their own right. 34 Whilst there is, undoubtedly a history, and perhaps one might term an unfortunate earlier history, the view I take is prospective. That prospective view is based on an amended application and what I have seen in respect of the conduct of the applicant in respect of that amended application since its filing. That conduct to me is not in anyway suggestive of a lack of inclusion where necessary of all of the members of the native title claim group. 35 The applicant's position before me today was, with respect, a reasonable and sensible one, reasonable and sensible in the sense that the applicant took the view that it did not wish actively to oppose a continuance of Mr Johnson as a party, but neither did it wish to surrender the statutory obligation, which it had under s 62A, to manage the application. The other parties to the proceeding did not actively oppose the continued joinder of Mr Johnson and the other named persons, although each acknowledges the existence of a power to dismiss. 36 The Native Title Act provides for circumstances in which an applicant may be replaced: see s 66B. The exercise of that power though would require a replacement member or members proposing to become the applicant to have a wider authorisation. Were I to make a dismissal order, there would be a power in the event of cause being shown to join Mr Johnson and the other named persons afresh, and to join them even in the absence of that type of authorisation which is necessary under 66B. 37 At the present stage of these proceedings, it seems to me that their efficient conduct is promoted best by the applicant continuing to do what the Native Title Act requires it to do and what, to my observation, the applicant has been diligent in doing, which is progressing the application in its amended form, and progressing an application which includes, as one of the ancestors, Mary Johnson. As matters stand at present, I am not at all persuaded that there is a need for a separate, a continued separate, representation as a party by Mr Norman Johnson and the other persons I have named. 38 I make it clear though in making that observation that that is a present disposition. In the event of evidence, and I use that word deliberately, being put before me, with an application for joinder, which went to an absence of consultation of the kind that I have described, then I would not at all foreclose the joinder of Mr Johnson and the other persons as parties. For the present though, it seems to me that I should firstly acknowledge the effect of the statute upon the filing of the notices in Form 5, which is the joinder of those persons, but also, pursuant to s 84(8), dismiss those persons as parties to the proceeding. 39 It seems to me that the power given under s 84(8) is not constrained by the circumstances referred to in s 84(9). Section 84(9) to me provides particular circumstances where Parliament contemplates dismissal will be considered but that subsection is not exhaustive of the circumstances where the dismissal power can be exercised. As I have said, in this particular case, it seems to me on the evidence that the applicant is doing what the Native Title Act contemplates, which is representing all of the members of the native title claim group, including Mr Johnson and those others also descended from Mary Johnson. The Native Title Act to me also contemplates that there will be occasions when it will be necessary for an applicant to consult with a native title claim group. Consult does not equate with "be dictated to by a member of". A member of a native title claim group, where a need for consultation arises, is entitled to be given an opportunity to be heard, nothing more and nothing less than that. There may be circumstances whereby, having regard to the taking advantage of that opportunity to be heard or, perhaps, a failure to give it, and the reaction of the applicant to the extension of the opportunity to be heard and what is said by particular members of the native title claim group, those dissentient members ought properly to be joined as parties so that they can be heard directly in the proceedings. For the present though, I see no need at all for that direct input as opposed to an indirect input via consultation where appropriate between the applicant and the members of the native title claim group. 40 For those reasons then and of my own motion, after the giving of notice by the Registrar and the affording of the opportunity to be heard today, the order that I make is that Mr Norman Johnson and each of the other named persons are dismissed as parties from the proceeding. There has not been any application for costs and I should indicate that I would not entertain making such an order. To the contrary, the fact that Mr Johnson has been moved to seek to take advantage of s 84(3) of the Native Title Act and what I have heard from him today would persuade me that under no circumstances would a costs order, even if applied for, be appropriate. It was very important that he be heard today and that the applicant do what the Native Title Act contemplated which was to acknowledge its role in terms of representing all members of a native title claim group. 41 The other order which I make expressly is to grant to Mr Norman Johnson and each of the named persons liberty to apply in respect of joinder. In so doing, I expressly reserve to another day an ability on the part of Mr Johnson and them, if so advised, on evidence and upon application served on the parties, the ability to seek to be joined as a party to the proceeding in his and their own right. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Butterworth on behalf of the Wiri Core Country Claim v State of Queensland

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