FEDERAL COURT OF AUSTRALIA

Combined Dulabed & Malanbarra/Yidinji Peoples v State of Queensland

[2004] FCA 1632

NATIVE TITLE – notice of motion – order sought that applicants on the motion be joined as parties to the Native Title claim – applicant on the motion a member of the combined claim group in the Native Title proceedings – complaint by applicant on the motion that genealogy prepared for North Queensland Land Council and some preceding anthropological reports incorrect – contended by applicant on the motion that Yidinji people not properly represented by named applicants – nature of authorisation under the Native Title Act 1993 (Cth) – whether applicants on the motion should be joined as respondents – order sought that the North Queensland Land Council be investigated with respect to alleged conflicts of interest

Native Title Act 1993 (Cth), ss 62A, 66B, 84(5), 85A(2)

Combined Dulabed & Malanbarra/Yidinji Peoples v State of Queensland [2002] FCA 1370 referred to

Combined Dulabed & Malanbarra/Yidinji Peoples v State of Queensland [2004] FCA 1097 referred to

Kulkalgal People v State of Queensland [2003] FCA 163 cited

Bidjara People #2 v State of Queensland [2003] FCA 324 referred to

COMBINED DULABED AND MALANBARRA/YIDINJI PEOPLES v STATE OF QUEENSLAND & OTHERS

Q6012 OF 2001

KIEFEL J

BRISBANE

14 DECEMBER 2004

THE COURT ORDERS THAT:

1.         The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     Mrs Dona Gibbs, Mr Derey Mays, Mrs Emma Ashburton and Mrs Pattrissa Tranby seek two orders from the Court:  that they be joined as parties to the Native Title claim proceedings and that the North Queensland Land Council (‘the NQLC’) be investigated with respect to alleged conflicts of interest.

2                     There have been two previous applications for joinder of a party to the same proceedings made by a Mr Morgan.  Like Mrs Gibbs he contended that the applicants in the Native Title proceedings were not properly representative of all persons in the claim groups.  The first application was heard by Drummond J who dismissed it on 8 November 2002 ([2002] FCA 1370).  The second resulted in an order for dismissal by Spender J ([2004] FCA 1097) on 25 August 2004.

3                     The Native Title claims have a long history, as Spender J observed.  Initially three separate claims were lodged with the National Native Title Tribunal between 1994 and 1996.  In January 1997 an agreement was reached between the three claimant groups.  Part of the agreement was that the interests of the traditional owners of the Goldsborough Valley, other than the Dulabed Peoples, would be represented by the Malanbarra/Yidinji Peoples claims.  All the claims were combined in 2001. 

4                     Mrs Gibbs is a member of the Yidinji group.  There is no doubt that she is a member of the combined claim group in the Native Title proceedings.

5                     Mrs Gibbs’ principal complaint is that the genealogy prepared for the NQLC, so far as it relates to her family, is incorrect, as are some anthropological reports preceding it.  It shows her auntie, who is the wife of the Native Title applicant Lenny Royee, as older than Mrs Gibbs’ mother.  The reverse position is correct.  Mrs Gibbs contends that there should be representation of her family as Native Title Applicants and she feels that her family have been shut out of the decision-making process.  Her family did not receive much attention in the anthropological reports.  She disputes that authorisation has been given to the named Applicants because she was not present at the meetings of  30 November 2000 and 2 December 2000 where, respectively, authorisation was given and ratified.

6                     Mrs Gibbs also contends that the Yidinji people generally are not properly represented by the named applicants.  Although Mr Royee claims to be Yidinji, his mother was Malanbarra and so he must be, it is argued.  There is no Yidinji applicant.  The Malanbarra applicants, the Royees, cannot speak for the Yidinji People.  They are a separate blood and language group.  Mrs Gibbs also challenges their connection to the claim area altogether.  The claim in her view contains ‘wrong people’.

7                     There is a substantial body of anthropological evidence which support the connection of each of the three groups in the combined application, as has been observed in the previous applications for joinder.  Mrs Gibbs takes issue with the correctness of the material.  She says that she shares the same concerns as Mr Morgan had.

8                     Mrs Gibbs’ material also contains allegations of racist comments, harassment and assault by two officers of the NQLC.  They are not parties to the application and no orders are sought against them. I understand that Mrs Gibbs also feels that her communication with these people, and with the NQLC generally, has not been good.  She feels that she has been kept out of activities and she finds it difficult now to even attend the NQLC premises.  The allegations abovementioned are not relevantly connected with any orders sought by Mrs Gibbs and the other persons and I shall disregard them.

9                     It is convenient to deal with the second order sought.  Mrs Gibbs could not point to any provision which gives the court a power of investigation and I am unaware of any.  It is not possible to discern any other appropriate order which might be made, having regard to her complaints.  They are general and diffuse.  I infer that some conflict may be pointed to in relation to the two officers, the subject of the assault allegations, because they were also ATSIC Regional Councillors.  Beyond that Mrs Gibbs alleges ‘many conflicts of interest present in this case’.  After hearing Mrs Gibbs’ expressions of concern it seems to me that the real complaint of conflict relates to the representation of her people by Malanbarra persons.  It is appropriate then to turn to the question of joinder.

10                  The application does not seek removal of the named applicants.  The relevance of their authorisation is generally to support Mrs Gibbs’ application for joinder.  There is no evidence which would suggest that there has been a lack of proper authorisation.  There are a number of affidavits filed in court which depose to the circumstances of authorisation.  The matter has been dealt with, expressly or impliedly, in the two previous judgments on the applications brought by Mr Morgan: see the judgment of Spender J at [57].  Authorisation under the Native Title Act 1993 (Cth) (‘the Act’) refers to authority for persons to act on behalf of the whole of the Native Title Group by a process which is required to comply with custom.  It does not require authorisation by every individual in the group, as Mrs Gibbs seems to think.  A representative applicant is given full authority by s 62A of the Act to ‘deal with all matters arising under [the Native Title Act] in relation to the application’: Drummond J in Kulkalgal People v State of Queensland [2003] FCA 163 at [6].

11                  As His Honour pointed out in that case when a person becomes dissatisfied with the way their interests are being represented in Native Title proceedings the only avenue provided for by the Act is that contained in s 66B.  The dissatisfied claim group member can apply to the court to have the applicant in the proceedings replaced.  But they can only make the application if they have the authority of all the members of the claim group to seek replacement of the named applicant.  No such application is here made and there is no suggestion that Mrs Gibbs enjoys the support of the claim group.

12                  Ryan J in Bidjara People #2 v State of Queensland [2003] FCA 324 considered that it would be appropriate in some cases to join a person under s 84(5) of the Act as a respondent.  The subsection provides that the 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.  Spender J also agreed that there was such a power (at [45]).  It is not necessary for me to consider this question.  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. 

13                  At the hearing of this matter Mrs Gibbs advised me that she and the other applicants to the motion, who did not appear, wished to be applicants and not respondents to the proceedings.  That course is not open to her for the reasons I have explained.  I would in any event be disinclined to add her as a respondent.  I am not satisfied that her family interests are not being taken into account, in particular by the NQLC, or that any corrections that she wishes to made in relation to her family’s history would not be considered by the NQLC or their anthropologists.  There is no sufficient evidence that the Yidinji people are not being adequately represented.  In any event the application is made far too late in the proceedings.  As Spender J observed when he dismissed Mr Morgan’s second application, the matter had looked to be close to a consent determination some time ago but the process was halted by Mr Morgan.  I would not place any further impediment in the path of a determination or create any further delay.

14                  The application will be dismissed.  The NQLC asks for costs under s 85A(2) of the Act because Mrs Gibbs has behaved unreasonably in bringing the application after the other two were dismissed.  It says that it is tantamount to an abuse of process.  I am not however satisfied that Mrs Gibbs understood the importance of the previous decisions.  I will not make an order for costs.  In view of the history of the matter however I will ask the Deputy District Registrar of Native Title to refer any further application of this nature to a Judge before it is accepted for filing.

Associate:

Dated:              14 December 2004