Resolution
28 The circumstances thrown up by this joinder application are highly unusual. I accept there is sufficient evidence for the Court to proceed on the basis that Ms Esther Foote has the support of more than 100 other people who identify as having a connection to the Pormpuraaw area, and who are members of the CYU #1 claim group. That is not an insignificant number of people. It is more than the total number of people who turned out to vote at the two Pormpuraaw authorisation meetings. That fact distinguishes this situation from cases where there may only be one dissenting claim group member who is seeking joinder.
29 These people, including Ms Foote, are saying to the Court they do not want a determination of native title. Through their counsel, they have advanced reasons which are not on their face irrational. There was no cross-examination of the deponents of the affidavits in support of the joinder application to suggest that the position they put in their evidence was untrue, or coerced. I proceed on the basis that Ms Foote, the other deponents, and those who support them, presently hold a genuine belief that first, a determination of native title is not as suitable to their interests as the current arrangements under Queensland law with the Pormpuraaw Aboriginal Shire Council; and further that the current claim description for Pormpuraaw is inaccurate, and too wide.
30 I accept that joinder of only one or several individual claim group members as respondents has the capacity to limit participation in resolution of issues in the proceeding, rather than enhance it, especially in a mediation context. I am tolerably confident that will not be the case if this aspect of the proceeding is carefully managed, as the whole proceeding has been up to this point. Going forward, the process in respect of the Pormpuraaw area may include further or specific mediation, or it may not. It is not inevitable that a new mediation process in respect of Pormpuraaw is the correct way forward. The parties will need to discuss this, and persuade the Court to make orders about that matter. The joinder of Ms Foote will give her a right to be heard in the proceeding about these matters, but it will not dictate any particular outcome. Even if the Court determines that some further or new mediation process is appropriate, a mediator has a number of powers under s 94E and s 94F of the NTA to ensure the appropriate conduct of any mediation. The Court also has a range of powers available to it. Any capacity for a lack of inclusiveness of the whole Pormpuraaw group is capable of being avoided, in my opinion.
31 I accept the State's thoughtful submissions at the hearing, that the proposed process in Ms Malyon's second affidavit was a better option than joinder of certain individuals:
we would try to look at which is the fairest and best process that, you know, in the position where we are now, what's the fairest way for them to do it? And having a process whereby people come forward and when I say "people", the, in effect, the Cape York Land Council will arrange this sort of consultative process. And if there really is a will of the people in that area that they don't want a determination, we would expect that the claim applicant and the Cape York Land Council would be willing to give effect to that and they would report that.
And if that ends up not being the position and Ms Foote's group gets outvoted by people who see more advantage of having a determination, then that can be recorded. And what I was trying to, you know, loosely indicate earlier, is if there was some argument with the processes that were carried out by the claim applicant through the Cape York Land Council unfair, that might itself be a justification for a later joinder application. But if the processes are fair and open and they have a chance to participate and they do participate and they are outvoted then we would think that such a joinder application should be refused.
32 The emergence of this proposal only shortly before the interlocutory hearing meant the joinder issue became more finely balanced. As I suggested to senior counsel for the State in oral argument, the difficulty with any adjournment or postponement of the joinder application to see how the proposed consultation process goes is that such a course is neither cost effective nor efficient. I remain of that view. That is why I consider the interests of justice overall, although not perfectly, are best advanced by joining Ms Foote, and giving her, as a respondent party, a say in how this new consultation process might unfold and should be organised, including through the possible use of mediation, although as I have said, mediation may not be the most appropriate way forward.
33 This is a highly unusual claimant application. It is a single application, but since April 2020, avowedly regionally and area based. Maintaining some level of local or regional group contribution and sense of autonomy is important in a proceeding such as this. All the processes which have occurred with the consent and active participation of the existing parties to date have reflected and acknowledged this. The joinder of Ms Symonds and Mr Miller earlier in the proceeding also reflects this unusual aspect of the claim. Having said that, the need for all claim group members to respect and abide by the complexities of the process in the Court's orders is important - the Court's refusal to join Mrs Lucy Hobson, Mr Anthony Pascoe and the Kuuku Ya'u Aboriginal Corporation RNTBC illustrates this: see Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 1) [2021] FCA 1463.
34 There was force in Mr Plunkett's reply submissions for the joinder applicants that there are certain protections and entitlements derived from having the status of a party to a proceeding. There is force also in the proposition that the outcome of the September 2021 meetings is a recent outcome, to which the Court should give some weight, despite the proposal by the CYU #1 applicant that it wishes to embark on a second persuasive exercise in the Pormpuraaw area.
35 As Mr O'Gorman submitted, there is evidence that a material number of claim group members for the Pormpuraaw area do wish to have a determination of native title; they were the ones who voted in favour of this course at the September 2021 meetings. It is correct that the Court needs to take account of their position as well. Senior counsel for the State made a similar point in referring to the initial authorisation of the CYU #1 claim, which Pormpuraaw people could participate in and appeared not to have opposed, since only two people across the whole of Cape York voted against the authorisation of the CYU #1 claim, and 550 voted in favour of it, over 23 meetings. I consider a decision to join only one of the people in the Pormpuraaw group who has a position of active opposition to the native title determination, and to the present claim group description, strikes an appropriate balance in the circumstances. It recognises what I consider to be a rational interest, but does not overwhelm or threaten to disrupt the future conduct of the proceeding.
36 I reject any contention that the joinder applicants have delayed. They applied promptly after the September 2021 meetings.
37 I do not propose to join Joshua Foote. Ms Esther Foote is his biological mother, although he also acknowledges his mother's "little sisters" as his mothers "cultural way". I consider the joinder of Ms Esther Foote is sufficient to accommodate the interests of justice in the circumstances, for the reasons I have outlined. It is not necessary to address some of the criticisms made of Joshua Foote by the CYU #1 applicant in submissions and in its material. I note that in his affidavit, Mr Foote also makes a number of criticisms and allegations about events leading up to, during and after the authorisation meetings in September 2021. I make no findings on those matters either. The proposed consultation process will give all those who have views to express about what should happen in Pormpuraaw concerning the CYU #1 claim a chance to express those views.
38 I made it clear to counsel for the joinder applicants at the hearing of the interlocutory application that:
the claim group that your clients form part of had priority in the structure of the - of the resolution of the entire Cape York United claim because it was seen as a straightforward consent determination with no opposition. And so Pormpuraaw - the claim group for Pormpuraaw - got to go right to the front of the queue so to speak because it was seen as straightforward and many - as you've heard for the last couple of hours, many of the other areas are not. If this area is to continue as part of the claim but on the basis that there's some litigation needed about it, I can tell you from my perspective as case managing judge it may well go to the end of the queue. And the end of the queue is about three or four years away.
….
I will not, as case managing judge, continue to give this [Pormpuraaw] region any particular priority if it's now going to be litigated, because that's not the basis on which it got its priority in the first place. So that will be a matter that your clients will need to consider and everyone else will need to consider and I will hear what everyone else has to say about that, but the - the Pormpuraaw claim group, if it remains in any form, will lose its priority so far as I'm concerned in case management.
39 That remains my view. However, the CYU #1 applicant wishes to continue to progress consultation about a consent determination in this area, and to do so promptly, in 2022. The CYU #1 applicant has the statutory responsibility of "dealing" with the claim under s 62A of the NTA. The Court should give weight to its proposals about how to approach such a complex claim, especially where, as here, it has proven itself to be conducting the proceeding as efficiently and effectively as possible, with the application of a tremendous amount of resources. Therefore, I am content for orders of the kind suggested by Ms Malyon in her second affidavit, and addressed by senior counsel during the hearing, to be formally proposed and discussed, even though they may mean the Pormpuraaw area will continue to receive some priority over other areas.
40 Accordingly, the Court endorses consideration of the proposed further consultation process outlined in Ms Malyon's second affidavit, although as Mr O'Gorman observed, it may need some refinement. The State also supports this process. As a party, Ms Foote will be entitled to participate in the design of this process, and to make suggestions about what orders the Court should make to direct the implementation of this process. That is appropriate where the evidence shows that she has the support of a significant number of people from Pormpuraaw. Her views may or may not carry the day, but she will be heard.
41 Taking into account the unusual structure of this claim, and the regional and area based approach now reflected in it, I consider conditions should be imposed on Ms Foote's joinder. Her assertion of interest was specific to Pormpuraaw, and her participation in the proceeding as a respondent should be limited to that area. The condition will be expressed as "subject to further order", so that if Ms Foote wishes to contend for a wider role, she will be able to do so by application, supported by proper material. Similarly, in a costly and resource intensive proceeding, Ms Foote's joinder should not result in cost and resource impacts on the future conduct of the proceeding as a whole, if there are mechanisms to contain or avoid those impacts. For that reason, there will be a limit on what documents need to be served on Ms Foote. Subject to any orders to the contrary, filed documents will in any event be available for inspection by a party through the Commonwealth Courts Portal. Once again, if Ms Foote considers this order is inappropriate, she can apply for it to be amended.