Gomeroi People v Attorney General of New South Wales

REASONS FOR JUDGMENT 1 I have before me today a series of matters which are styled Form 5 Native Title Act 1993 (Cth) ("Native Title Act") "Notice Of Intention To Become A Party To An Application." The first Form 5 has been filed by Martin De Launey. The second constitutes a group of 14 applications which involve 14 individuals who state that they are members of the Dabee clan of the North East Wiradjuri, being Coral Williams, Donna Whillock, Toni Whillock, Emma Syme, Gail Ratcliffe, Kelli Menzies, Lance Syme, Lola McConnell, Lynette Syme, Paul Perrin, Scott Perrin, Tahlia Ratcliffe, Trent Perrin and Wendy Lewis. There is also a Form 5 filed by Victor Mark Perry for and on behalf of the Wonnarua people which was filed in substitution for an earlier form said to be filed by the Wonnarua Nation Aboriginal Corporation. 2 The relevant provisions of the Native Title Act for present purposes are sections 84(3), (5), (8) and (9). Section 84 provides that: (3) Another person is a party to the proceedings if: (a) any of the following applies: (i) the person is covered by any of subparagraphs 66(3)(a)(i) to (vi); (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 a determination in 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(1A)(e) - within the period specified in the notice under that paragraph. … Joining parties (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. … Dismissing parties (8) The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings. Court to consider dismissing parties (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. 3 I have in evidence a series of communications between the Registry of the Court and the individuals or their representatives who have filed the forms in question. Each of those notifications confirms that the documents, being the Form 5 styled applications for joinder, had been listed for hearing before me today. When the matter commenced this morning, there was no appearance by or on behalf of any of the persons who had filed the Form 5 notices of intention to become a party to an application. There were appearances, however, on behalf of the applicant, the Gomeroi People, as well as the first respondent, being the State of New South Wales. 4 These matters were listed before me because, in effect, the applicant, the Gomeroi People, opposed the applications for joinder either on the basis that properly analysed the persons who have filed the Form 5 notices are not a party to the proceedings within the meaning of section 84(3) or, alternatively, if they are a party then pursuant to section 84(8) they should cease to be a party to the proceedings by order made because, on analysis, their claims to hold native title in relation to land or waters in the area covered by the application are unsubstantiated and they do not have a relevant interest in relation to land and waters which may be affected by a determination in the proceedings within the meaning of, respectively, ss 84(3)(a)(ii) and (iii) of the Native Title Act. 5 An interesting question has been drawn to my attention through the submissions of the applicant. It relates to the substance of the various Form 5 documents which have been filed. In short, each of the Form 5 documents contains, as a first sentence in that part of the form, section 5, requiring details of interest claimed, a statement to this effect: I claim to hold native title rights and interests in relation to the land and waters in the area covered by the application. 6 Only the form filed by Mr Perry on behalf of the Wonnarua people does not contain this assertion. It will be apparent the above claim reflects precisely the words of section 84(3)(a)(ii) of the Native Title Act. Each claim then also goes on to assert an interest in relation to land or waters that may be affected by a determination in the proceedings. For example, Mr De Launey's Form 5 asserts: Native title rights and interests in part of the area claimed by Gomeroi people's application. The form also says that: Any determination in favour of the Gomeroi people will adversely affect me and my right to claim and exercise native title rights and interests. 7 Similar assertions are made in each Form 5 filed on behalf of the 14 individuals identified as members of the Dabee clan. 8 In Mr Perry's Form 5, there is a different wording. His form states that the Gomeroi claim: …impinges upon and includes country which is traditionally the land of the Wonnarua people. 9 Mr Perry's Form 5 states that he asserted for and on behalf of the Wonnarua people a native title claim in 1995 and pursuant to that, an agreement was entered into between him, as registered native title claimant on behalf of the native title claim group, and Coal & Allied Operations Pty Ltd in relation to a mining project of Coal & Allied. Section 5 of Form 5 as filed by Mr Perry says: The project, the subject of the agreement, is within the area claimed by the Gomeroi claim. 10 Accordingly, it is obvious that each of the Form 5 documents which has been filed is intended to engage the operation of s 84(3)(a)(ii) or (iii) of the Native Title Act. The issue which the applicant raises is whether a bald assertion of native title in relation to land and waters in the area covered by the application, indeed being an assertion made in the very terms of the section itself, is sufficient to attract the operation of s 84(3)(a)(ii). This is particularly so when there is also in evidence other material which, as the applicant puts it, shows that any previous native title claims by the persons who have filed the Form 5 documents in fact relate to the land or waters outside the area covered by the application, even if some of those applications may be close to the boundaries of the area covered by the application. 11 In Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2002] FCA 730, Dowsett J was confronted by a not dissimilar situation. He noted in [1] that he had formed the view that the persons in question were already parties, subject only to the possibility of being dismissed from the action pursuant to ss 84(8) or (9). His Honour said: It seems that this view is not universally shared, however I am persuaded as to its correctness. The matter was not argued in detail before me and so there is no point in my giving further reasons. It is sufficient to say that proceedings were thereafter conducted upon that interpretation of s 84. 12 I understand why his Honour reached the view that he did because the words of s 84(3)(a)(ii) provide that a person is a party to proceedings if, relevantly, "the person claims to hold native title in relation to land or waters in the area covered by the application." It may be that nothing more than a bald assertion is sufficient to constitute a claim within the meaning of this section. Despite this and in accordance with the applicant's submissions, I also recognise that there is potential for arguments to the contrary, namely, for example, that a claim must be made in good faith or must be sufficiently detailed to expose some genuine basis for the claim. 13 I prefer not to resolve this issue in the context of these matters for the simple reason that no person, as I have said, has appeared on behalf of the persons who have filed the Form 5 documents and therefore I do not have a relevant contradictor to the position put by the applicant. I also suspect there may well be decisions in other contexts which have considered what is sufficient to constitute a claim. Accordingly, the course that I prefer to take, which is consistent with what Dowsett J did in the matter to which I have referred, is to take the Form 5 documents at face value. Therefore for the purpose of determining matters I am going to operate on the basis of an assumption that Mr De Launey and each of the Dabee clan members who have asserted that they hold native title in relation to land or waters in the area covered by the Gomeroi People's application are in fact already parties to these proceedings pursuant to section 84(3)(a)(ii) of the Native Title Act. 14 Mr Perry is in a slightly different position. First, his substituted Form 5 was filed outside the relevant period specified in the notice under s 66 of the Native Title Act although the original Form 5 filed by Wonnarua Nation Aboriginal Corporation was filed within the relevant period. Again, taking a precautionary approach in circumstances where Mr Perry has not appeared today I will operate on the assumption that the substituted Form 5 can have the benefit of the original filing and, accordingly, that it was filed within time and that by that form Mr Perry asserts an interest in the land or waters covered by the Gomeroi People's claim and, therefore, seeks to engage s 84(3)(a)(iii) of the Native Title Act. 15 In relation to an interest in accordance with s 84(3)(a)(iii), unlike s 84(3)(a)(ii) which requires merely a claim, there is obviously the factual question of whether the person does have such an interest. In contrast, as I have said, on one view at least, there is no doubt that each of the other persons who have filed the Form 5 documents does assert a claim to hold native title in relation to land or waters in the area covered by the application. It follows from this analysis that leaving aside Mr Perry, each of the other persons should be treated as already being a party to the proceedings. Mr Perry should be treated as a person who asserts an interest sufficient to make him a party to the proceedings but there is a factual question, given the opposition to his interest, as to whether or not that is the case. 16 This means that leaving aside Mr Perry the real issue that I need to determine today is whether, as the applicant submits, on the assumption that all persons other than Mr Perry are already a party to the proceedings, I should make an order that they cease to be a party to the proceedings. The evidence that the applicant has filed in support of such an order, which of course was also relevant to the applicant's position that 84(3)(a)(ii) and (iii) are not in fact engaged in any event, constitutes relevantly in the case of Mr De Launey's Form 5 an affidavit of James William Rose who is an anthropologist employed as a senior anthropologist at NTS Corp Limited. This affidavit sets out the details of research which Mr Rose has carried out leading him to the conclusion that he has discovered no evidence that either Mr De Launey himself or any of Mr De Launey's indigenous ancestors ever had a physical connection with the Gomeroi claim area north of Mudgee or are genealogically related to the Aboriginal population that occupied and continues to occupy that region. 17 According to Mr Rose his analysis of the evidence leads to this conclusion which: Correctly contradicts Mr De Launey's assertion that he has traditional land and resource tenure rights within the area subject to the Gomeroi People's claim. 18 Apart from this I also have in evidence a series of maps which show the land and waters the subject of the claim by the Gomeroi People and all of the historical and current claims of behalf of those people who have filed the Form 5 documents and otherwise by or on behalf of the Wiradjuri People or the Wonnarua People. In short what those maps show is that the various historical and current claims sit outside the area of the application of the Gomeroi People even though in some cases it must be said that they are close to the boundary thereof. 19 Insofar as Mr Perry's application is concerned I also have in evidence an extract from Coal & Allied's website which shows the existing mine close to the town of Muswellbrook and refers to that project being four kilometres from the town of Muswellbrook. It appears, from other maps to which I have already referred, that Muswellbrook lies on or close to the boundary of the Gomeroi Peoples' claim area, as opposed to within the claim area. 20 All of this leads the applicant to make a number of submissions which can be reduced to the following propositions: First, each of the claims to hold native title in relation to land or waters in the area covered by the application amounts to no more than speculation at best and is not supported by evidence which would suggest that there is indeed native title in relation to those land or waters and further, that insofar as the mapping evidence goes, is inconsistent with the existence of such native title. Second, the interests asserted in each of the Form 5 documents cannot be characterised as "genuine, demonstrable and direct interests" adopting the language of Bennett J in [27] of Peter Hillig as administrator of Worimi Local Aboriginal Land Council v Minister for Lands [2006] FCA 61. At [27] her Honour said: The right to become a party to proceedings for determination of native title under the Native Title Act is restricted to persons whose interest may be genuinely, demonstrably and not indirectly affected by a determination of native title and which are not remote or so insubstantial that it will be mere speculation as to whether and if so, how they may be actually affected by the determination. Her Honour cited in support the decision in Byron Environment Centre Incorporated v Arakwal People (1997) 148 ALR 46 and, in particular, pp 51 to 52 and 84. The applicant says that in this case the material which has been filed by the persons in question shows nothing more than a remote or insubstantial interest which does not rise above mere speculation as to whether, and if so how, such an interest may actually be affected in any way by a determination in these proceedings. 21 For those reasons it is said that I should make orders under s 84(8) that any person who is a party cease to be a party to the proceedings. Alternatively on the assumption that Mr Perry, at least, is not currently a party to the proceedings it is submitted I should so determine and I should not exercise any discretion under s 84(5) to join Mr Perry as a party to the proceedings. 22 In this regard I note that before this matter was listed orders were made requiring each of those persons to file whatever additional material they wished to file in support of their claimed or desired status as a party. Mr De Launey did so by way of a letter to the Registrar of the Court dated 20 November 2012 but none of the 14 individuals describing themselves as members of the Dabee Clan have done so. 23 Dealing first with Mr De Launey, as I have said, I am going to proceed on the basis that he is a person who claims to hold native title in relation to land or waters in the area covered by the application, by reason of nothing more than the first sentence in the Form 5 document which he filed. I am also going to proceed on the basis that he asserts an interest in relation to land or waters that may be affected by determination in these proceedings. I have considered the material in the Form 5 document as well as the letter which Mr De Launey forwarded to the Registrar and, of course, the affidavit of Mr Rose. It seems to me that although Mr De Launey asserts that the claim by the Gomeroi People is "overly ambitious", which I understand to mean extends into an area where his people claim native title rights and interests, it is impossible, from the material which Mr De Launey has filed, to be satisfied of the existence of a genuine, demonstrable or direct interest which might be affected by a determination of native title. 24 To the contrary, the evidence of Mr Rose, which I have no reason not to accept, would point in the contrary direction. Accordingly, at best, any asserted interest by Mr De Launey is remote and insubstantial. Indeed, I am left in the position where I can do nothing more than speculate as to whether there is any interest and if there is any interest, whether it be characterised as a native title right or interest or otherwise, whether it would actually be affected by the determination in these proceedings. It seems to me, in these circumstances, consistent with the conclusion which Bennett J reached, that it is only those persons whose interests may be classified as genuinely, demonstrably and not indirectly affected by a determination of native title who ought to have the status of parties to the proceedings. The reason for this is obvious, given that as a party to proceedings there are vested therein, by the provisions of the Native Title Act, various rights and indeed obligations which could have the effect of substantially interfering with the timely and efficient resolution of such matters. 25 On the basis of the material that is available to me, I am not satisfied that it is appropriate or in the interests of justice that Mr De Launey should remain a party to these proceedings. As far as I can ascertain from all of the material, any interest he might have is indirect, insubstantial and it remains at the level of mere speculation as to whether or not those indirect or insubstantial interests would, in any event, be affected by a determination. Accordingly, I do propose to make an order that Mr De Launey cease to be a party to the proceedings under s 84(8) of the Native Title Act. 26 The position of the Dabee clan members, 14 in total, is even less persuasive than that of Mr De Launey. No additional material was filed, despite the opportunity to do so. The asserted interest remains at a very high level of generality and amounts to nothing more than assertion. In the face of the material which the applicant has filed, mere assertion of this kind is insufficient to satisfy me that there is a genuine, demonstrable and direct interest which might be affected by a determination of native title on the part of any of these persons. And, indeed, again, it remains at the level of mere speculation as to whether any determination of native title in these proceedings would affect any such interest. Accordingly, in respect of each of the 14 members of the Dabee clan, I also propose to make orders under s 84(8) that they cease to be a party to the proceedings. 27 As to Mr Perry, based on the available information I cannot see that the interest is demonstrable and direct in any relevant way. Indeed, as the applicant has submitted, there is in existence a contract which appears to be the basis of his interest. As such, the contract will operate in any event in accordance with its terms. It is also not clear that the project the subject of the agreement is within the area claimed by the Gomeroi people. But even if it is within that area the only interest which is asserted is contractual in nature and it is impossible to conclude, on the material before me, that any part of that contract would be affected. Accordingly, I am not satisfied that Mr Perry is currently a party to the proceedings, because he does not claim to hold native title in relation to land or waters in the area covered by the application and his interest in relation to land or waters is not one which may be affected by determination in the proceedings. 28 Treating Mr Perry's Form 5 as an application for joinder, pursuant to s 84(5), I am not satisfied that his interests may be affected by determination in the proceedings and I am not satisfied it is in the interests of justice for Mr Perry to be joined. Accordingly, insofar as it is necessary to do so, I would make an order dismissing the application of Mr Perry to be joined as a party to the proceedings. 29 I make orders in these terms: (1) Pursuant to s84(8) of the Native Title Act 1993 (Cth) each of the following persons cease to be a party to the proceedings: Martin De Launey Coral Williams Donna Whillock Toni Whillock Emma Syme Gail Ratcliffe Kelli Menzies Lance Syme Lola McConnell Lynette Syme Paul Perrin Scott Perrin Tahlia Ratcliffe Trent Perrin Wendy Lewis (2) The application of Victor Mark Perry on behalf of the Wonnarua people to be joined as a party to the proceedings be dismissed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.