FEDERAL COURT OF AUSTRALIA

Budby on behalf of the Barada Barna People v State of Queensland [2010] FCA 1017

REASONS FOR JUDGMENT

1                     Today in Court the applicant and respondents made submissions in relation to the notice of motion filed by the applicant on 1 July 2010.

2                     The primary issue before the Court was para 3 of the notice of motion, wherein the applicant sought the following order:

That Wiri Cultural Heritage and Community Development Aboriginal Corporation, Celeste Walsh and Linda Joyce Wailu be struck out as respondent parties.

3                     The Wiri Cultural Heritage and Community Development Aboriginal Corporation (“the Corporation”) was not represented in Court today, nor did it otherwise seek to enter an appearance. No evidence has been filed by the Corporation in this proceeding.

4                     Mr Preston, appearing for the North Queensland Land Council and certain indigenous respondents including Ms Walsh and Ms Wailu, drew the Court’s attention to affidavits filed by Ms Walsh and Ms Wailu on 8 September 2010 and anthropological material before the Court supporting a prima facie case that both Ms Walsh and Ms Wailu were descended from apical ancestors named in the native title determination application.

5                     The applicant has consented to the dismissal of its application that Ms Walsh and Ms Wailu be struck out as respondents. However in light of the paucity of material in the affidavits filed by Ms Walsh, Ms Wailu and certain other named respondents, the applicant and respondents represented by Mr Preston in Court today (including Ms Walsh and Ms Wailu) have consented to an order requiring the solicitor on the record for those respondents to file and serve an affidavit deposing to:

(a)               the nature and extent of the native title rights and interests identified in the Form 5 applications filed 29 March 2010 by those respondents; and

(b)               the area in respect of those claimed native title rights and interests, to be identified with particularity.

6                     Ms Cartledge and Mr Rice, respectively representing regional local councils and mining interests, also sought an order that they be served with the native title determination application filed 12 November 2008 and the amended native title determination application filed 3 March 2009. I am prepared to make that order.

7                     So far as concerns the Corporation, in the absence of submissions in support of the continued joinder of that party as a respondent, it is in my view appropriate that it cease to be a respondent. The only material before me in relation to the Corporation is a Form 5 Notice of Intention to Become a Party to an application filed 29 March 2010. In that notice the Corporation identified the basis of its interest as:

traditional connection to and Native Title and Cultural Heritage “rights and interests” in the lands over which this NT Application has been made.

8                     The form was signed by Norman Johnson senior as Chairman of the Corporation.

9                     In my view however the circumstances of this case so far as concerns the Corporation fall within the parameters of s 84(8) and s 84(9)(b) of the Native Title Act 1993 (Cth) (“the Act”). These sections provide:

(8) The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.

(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:

(b) the person never had, or no longer has, interests that may be affected by a determination in the proceedings.

10                  In Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1, the Full Court articulated principles identifying the scope of “interests” for the purposes of s 84(5) of the Act. Section 84(5) provides, inter alia, that the Federal Court may at any time join any person as a party to proceedings if satisfied that the person’s interests may be affected by a determination. In Byron 78 FCR 1 the Court found in summary that the claimed “interests”:

(a)               need not be proprietary, legal or equitable in nature;

(b)               must be above that of an ordinary member of the public and must be not that of a mere intermeddler or busybody;

(c)               must be genuine and the affectation must be genuine, and must be more than mere emotional, conscientious or intellectual interests;

(d)               must be “not indirect, remote or lacking substance…”, “capable of clear definition” and “of such a character that they may be affected in a demonstrable way by a determination”;

(e)               may be that of a person who has a special, well-established non-proprietary connection with land or waters which is of significance to that person, or persons who habitually or regularly use or enjoy public land or waters;

(f)                 may be that of a corporation whose activities may be curtailed or otherwise significantly affected by a determination.

11                  Subsequently in Adnyamathanha People No 1 v South Australia (2003) 133 FCR 242 Mansfield J refused an application by an Aboriginal corporation to join proceedings under s 84(5) on the basis that, although the relevant corporation had an active role in promoting the articulation and understanding of the relationship of Aboriginal persons to country, had an interest in maintaining the integrity of those programs and had an interest in furthering the benefits to aboriginal persons of intellectual property which they owned, nonetheless those interests were not “interests” in terms of s 84(5) of the Act. In effect, the interests of the relevant corporation in that case were interests of the individual Aboriginal persons who were members of the corporation, and who could themselves be parties to the application (at [34]). Similarly in Combined Dulabed and Malanbarra/Yidinji Peoples v State of Queensland (2004) 139 FCR 96 Spender J found that there was no evidence that the interests of the relevant Aboriginal corporation could be affected by a determination in the proceedings beyond the interests of its individual members, and that accordingly no basis had been shown for joining the corporation as a party to the proceedings.

12                  In my view the principles articulated in these cases are applicable because “interests” for the purposes of s 84(5) bears the same meaning as “interests” for the purposes of s 84(9) of the Act.

13                  In this case, the basis on which an interest in the claim is asserted in respect of the Corporation is identical to the basis on which an interest in the claim is asserted by certain individual indigenous respondents, in particular Mr Norman Johnson senior and his family members. There is no evidence before me that the Corporation has any interest above that of an ordinary member of the public, or that its interest is other than by association with the individual members of the corporation. The Court has not been referred to any material, including the constitution of the Corporation, which would suggest otherwise. To that extent I am not satisfied that the Corporation has, or has had, interests that may be affected by a determination in the proceedings.

14                  In my view the proper order is that the Wiri Cultural Heritage and Community Development Aboriginal Corporation cease to be a respondent party to the proceedings.

Associate:

Dated:         15 September 2010