Parkin on behalf of the Quandamooka People v State of Queensland

1. The interlocutory application filed 29 July 2019 is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 Ms Shelly Moreton, Ms Kerry Charlton and Mr Steven Coghill (who I will refer to as "the interlocutory applicants") have applied for an order that: "[they] be joined as a party to the Quandamooka Coast Claim determination application, pursuant to section 84(3)(a)(ii) of the Native Title Act 1993 [sic] (Cth)". In their application they have expressly stated that they have applied for this order "on behalf of the Gergum/Kirkham/Kercumpan/Gorbenpan/Go'enpul/Yerongpan People" (the GKKGGoY People). 2 While their application specifies that it is brought pursuant to s 84(3)(a)(ii) of the Native Title Act 1993 (Cth) (the NTA), in their written submissions they have variously nominated ss 61(1), 83 and 84(5) as the provisions upon which they rely. However, it is quite apparent from the circumstances of their application that the latter section is the apposite provision. Accordingly, I will treat their application as having been brought under that section. 3 The principles bearing on an application under s 84(5) of the NTA are well-established. They were outlined most recently in Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 4) [2020] FCA 1046 at [3]. In summary, the interlocutory applicants must establish all of the following three criteria: (a) that they each have an interest for the purpose of s 84(5) of the NTA; (b) that the interest each of them holds may be affected by a determination of native title in this proceeding; and (c) that it is in the interests of justice that they each be joined as a party to this proceeding. 4 Ms Charlton and Mr Coghill filed affidavits in support of their applications. Ms Moreton did not. The affidavits of Ms Charlton and Mr Coghill are in almost identical terms. First, they both describe the interest they claim to have for the purpose of s 84(5) of the NTA in the following terms: 1. I am a Traditional Owner and an Elder of the [GKKGGoY People] of Yuggera Country. 2. I am authorised by Elders of the [GKKGGoY People] to make this affidavit on behalf of the [GKKGGoY People] in support of my interlocutory application to join as a party to the Quandamooka Coast Claim (Claim). 3. The [GKKGGoY People] are to be recognised in the Claim because our bloodline gives us the right to areas in the Claim area, in particular, the areas of Stradbroke Islands and surroundings and adjacent area from our apical ancestor Dandruban aka Charlie Moreton. 4. Our bloodlines are proven in the Quandamooka Claims #1 and #2 as well as two other Native Title Claims, being the Yuggera Ugarapul Claim and the Kabi Kabi Claim. (Emphasis in original) 5 Next, they both describe the manner in which that interest may be affected by a determination of native title in this proceeding in the following terms (at [7] and [6] of their respective affidavits): The [GKKGGoY People's] interests may be affected by a determination in these proceedings because in the event the current Claim were successful this would significantly impact the Cultural Heritage of the whole site including land and waters being in the hands of the current Claimant, which extends to maintenance, hunting, fishing, camping and gathering of natural resources for traditional purposes of our clients. The [GKKGGoY People] is [sic] entitled to lay claim to the whole of the land and waterways in the Claim area. 6 Finally, they both outline why they believe it is in the interests of justice that they be joined as respondent parties in this proceeding as follows (at [8]-[9] and [7]-[8] respectively): It is in the interests of justice for the Court to grant this application to join as a Respondent to these proceedings because the [GKKGGoY People's] Native Title rights would be significantly impacted if the current Claim is successful. This is because the other family groups in the Claim were historically known to have no blood connection to the [GKKGGoY People] and no traditional claim to the Claim area. The current Applicants are not entitled to make the Claim as a result of their lack of connectivity to the whole of the land being claimed. It is our Tribe's position that only our bloodline Elders speak on our behalf with respect to tribe, country, waters, languages, customs and cultures of the [GKKGGoY People]. 7 In addition to the matters outlined in the affidavits above, in their written submissions in support of their applications, the interlocutory applicants contended that it was sufficient for the purposes of s 84 [sic - 84(5)] if their interests are not "remote, indirect, fanciful, lack[ing] substance or lack[ing] clear definition" (emphasis in original), relying upon Edwards on behalf of the Wongkumara People v State of Queensland [2014] FCA 282 (Edwards) at [29] (citing Far West Coast Native Title Claim v South Australia (No 2) (2012) 204 FCR 542; [2012] FCA 733 (Far West Coast) at [28], [30]-[32]). They also contended it was only necessary for them to establish their interests on a prima facie basis, relying on Edwards at [31] (citing Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 (Isaacs) at [8]-[9]). They therefore contended that the Court was not required to "make a decision on the ultimate composition of the claim group nor how the parties will seek authorisation as to the progress of these proceedings". Instead, they contended those matters were "for the native title holders comprising that group" to determine. Finally, they contended that it was in the interests of justice that they be joined as respondent parties in this proceeding so that the "[c]omposition of the claim group, or other matters in issue between the native title holders can then be progressed in accordance with case management principles and the guidance of the Court". 8 The substantive applicant in this proceeding is the authorised applicant for the Quandamooka Coast Claim (who I will refer to as "the Quandamooka applicant"). It opposes the interlocutory applicants' application. Early in its written submissions, it highlighted the fact that no material has been filed on behalf of Ms Moreton and there was therefore no evidence before the Court to enable it to determine what her interest is and whether it may be affected by a determination of native title in this proceeding. On this aspect, I interpolate that the interlocutory applicants were given an opportunity to file submissions in reply to the Quandamooka applicant's written submissions which specifically raised this issue about the dearth of supporting evidence from Ms Moreton but, despite being sent a number of reminders, they failed to do so. I will return to this aspect later in these reasons. 9 With respect to Ms Charlton and Mr Coghill, the Quandamooka applicant began by referring to the statements in their affidavits that they had a "bloodline" connection to the claim area through "their ancestor Dandruban aka Charlie Moreton" (see at [4(3)] above). And further that "[o]ur bloodlines are proven in the Quandamooka Claims #1 and #2" (see at [4(4)] above). The Quandamooka applicant then pointed out that three determinations of native title have been made to date based on claims made by the Quandamooka People. They are as follows: (a) QUD 6010 of 1998 - Delaney on behalf of the Quandamooka People v State of Queensland [2011] FCA 741 (Quandamooka #1); (b) QUD 6024 of 1999 - Delaney on behalf of the Quandamooka People v State of Queensland [2011] FCA 741 (Quandamooka #2); and (c) QUD 601 of 2014 - Anderson on behalf of the Quandamooka People (Mulgumpin/Moreton Island Claim) v State of Queensland (No 2) [2019] FCA 2001 (Quandamooka #3). 10 Next, the Quandamooka applicant pointed out that each of these determinations described the native title holders for the respective determination area as "the biological descendants" of a list of apical ancestors, which included "Charlie Moreton (Dandruba) [sic]". Finally on this aspect, it pointed out that the native title claim group in the present proceeding was described in the Form 1 originating application in precisely the same terms, namely as including the biological descendants of, among other apical ancestors, "Charlie Moreton (Dandruba) [sic]". 11 These matters, the Quandamooka applicant contended, "clearly shows" that Ms Charlton and Mr Coghill are "asserting an interest as Quandamooka persons". Further, it submitted that they have not shown "how or why the interests they assert are above and beyond the interests of all other members of the [Quandamooka] claim group". Nor, it submitted, was there any evidence that their asserted interests have been "ignored or inadequately managed by the [Quandamooka applicant]". Accordingly, it contended that this was not one of those rare cases where dissentient members of a native title claim group should be permitted to become respondent parties in a claim, referring to the decisions of Mansfield J in Starkey v South Australia (2011) 193 FCR 450; [2011] FCA 456 at [61]-[63] and Far West Coast at [38]-[39]. 12 The Quandamooka applicant also referred to the statements at [8] of Ms Charlton's and [7] of Mr Coghill's affidavits (see at [6] above) that "the other family groups in the Claim were historically known to have no blood connection to the [GKKGGoY People] and no traditional claim to the Claim area". It submitted that this claim was "totally at odds" with the three Quandamooka determinations described above (see at [9]) and was also "illogical" because the deponents had elsewhere in their affidavits relied upon their "bloodlines" as recognised in Quandamooka #1 and #2. 13 Finally, the Quandamooka applicant contended that it would not be consistent with the overarching purpose of civil litigation contained in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) to allow the interlocutory applicants to become parties because that "would effectively provide them with a veto on further decisions of the [Quandamooka] claim group" and thereby frustrate its ability to pursue that claim on the claim group's behalf. 14 In summary, therefore, the Quandamooka applicant accepted that, with the exception of Ms Moreton, the interlocutory applicants had an interest as Quandamooka People which interest may be affected by a determination of native title in this proceeding, thereby meeting the criteria in ([3(a)] and [3(b)] above). However, referring to the criterion in [3(c)] above, it contended that it was not in the interests of justice to allow them to be joined as respondent parties in this proceeding because that interest was essentially the same as the interests presently being pursued by the Quandamooka claim group in their claim and, in that circumstance, any joinder would unduly encroach on its authority to deal with that claim. 15 Ms Moreton's application can be disposed of briefly. As the Quandamooka applicant has correctly observed, she has not placed any evidence before the Court in support of her application which identifies what interest she has in the claim area and how that interest may be affected by a determination of native title in this proceeding. That being so, she has not established either of the first two criteria set out above (see at [3(a)] and [3(b)]). Accordingly, her application must fail. 16 As for the applications of Ms Charlton and Mr Coghill, I agree with the analysis of the Quandamooka applicant. That is, although they both have an interest in the claim area which may be affected by a determination of native title in this proceeding, I do not consider it is in the interests of justice that they be joined as parties to the proceeding. That is so because the interests they both advance in their affidavits are as members of the Quandamooka People through their status as descendants of Dandruban, also known as Charlie Moreton. Since those People are the same Quandamooka People who are defined as the claim group in the present proceeding, namely the descendants of a group of apical ancestors which includes "Charlie Moreton (Dandruba) [sic]", Ms Charlton and Mr Coghill have not shown why their interests should be treated any differently from the interests of all the other members of the Quandamooka People. 17 While it may be implicit in their contentions that they have concerns about the composition of the Quandamooka claim group (see at [7] above), it is not clear from either those contentions, or from their affidavits, what those concerns are. There is, for instance, no evidence that their interests as members of the Quandamooka People have been ignored or denied by the Quandamooka applicant. Even if there were such evidence, they would need to show more to demonstrate that it is in the interests of justice that they be joined as respondents in this proceeding. 18 As Mansfield J observed in Far West Coast (at [38]): An order for the joinder of a member of the claim group, in effect as a respondent or opponent to the claim itself, is not routinely recognised. The circumstances in which a dissentient member of a native title claim group will be permitted to become a respondent will be rare: Starkey v South Australia (2011) 193 FCR 450 at [61]-[63] (Starkey). In Starkey I considered that the joinder of a claimant as a respondent may not be consistent with the effective and efficient presentation and the conduct of the claim, but may instead add to the cost and delay, and may subvert the intention of s 62A of the NT Act to provide to the respondents one person (or group) responsible for dealing with the claim on behalf of the claim group: at [55]. There will, however, be cases where it is appropriate to do so: see the cases discussed in Starkey at [46] and [48]. 19 In short, I do not consider that Ms Charlton and Mr Coghill have established that this is one of those rare cases to which his Honour has referred. 20 Before concluding, there are two other features of this application that deserve comment. First, it appears from the form of their application (see at [1] above) and the contents of their affidavits (see at [4(2)] above) that the interlocutory applicants seek to become respondent parties in this proceeding "on behalf of" the GKKGGoY People. Aside from the fact that they have not explained who the GKKGGoY People are and how they relate, if at all, to the Quandamooka People, it has been held, on a number of occasions, that a person may not seek joinder as a respondent in a native title determination application proceeding in a representative capacity for others (see, for example, Edwards at [32]). 21 Secondly, and further to the above, if, instead of seeking to advance their interests as Quandamooka People, the interlocutory applicants are purporting to seek a determination of native title on behalf of the GKKGGoY People, it has also been held on numerous occasions that those People must file their own application under s 13(1) to the NTA and comply with the requirements of ss 61 and 251B of the NTA (see Munn v State of Queensland [2002] FCA 486 at [8]; Moses v Western Australia (2007) 160 FCR 148; [2007] FCAFC 78 at [18]; Commonwealth v Clifton (2007) 164 FCR 355; [2007] FCAFC 190 at [48], [52]-[53], [57]-[58] and [61]; Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [18]; Isaacs at [18]-[19]; A.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 2) [2013] FCA 1000 at [57]; and Edwards at [32]). 22 For these reasons, I do not consider it is in the interests of justice that any of the interlocutory applicants should be joined as respondent parties in the Quandamooka Coast Claim. Accordingly, their application filed 29 July 2019 will be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Reeves.