FEDERAL COURT OF AUSTRALIA

Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321

THE COURT ORDERS THAT:

1.    Pursuant to s 84(5) of the Native Title Act 1993 (Cth), Kenneth Roy Markwell be joined as a respondent party in these proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    These notices of motion concern two separate applications under s 84(5) of the Native Title Act 1993 (Cth) (“the Act”) by persons who wish to be joined as respondents in the native title determination application made by Mr Kenneth Bonner and others on behalf of the Jagera People. Hereafter I will refer to this substantive application as the Jagera #2 claim, or the Jagera #2 proceedings, and the applicants as the Jagera #2 applicants.

2    One joinder application has been made by Mr Kenneth Markwell, and the other has been made by Ms Ruth James and Ms Myfanwy Locke.

3    The Jagera #2 claim covers an area of land and waters in south-east Queensland stretching from the Port of Brisbane, west to Murphy’s Creek near Toowoomba, and bounded by the Logan and Brisbane River systems in the south and north respectively.

4    In his affidavit in support of his joinder application, Mr Markwell claims that a portion of the Jagera #2 claim area is Mununjhali country. He says:

The portion of the Jagera #2 native title claim all around Kagaru (Kuga-roo) (home of the Kookaburra) and Undullah (silver leaf ironbark) and up to and including the Mount Flinders and Blaine is all Mununjhali country. These are Mununjhali words from the Yugambeh Language – not Yuggera, Jagera or Yugarapul lingo.

5    In their affidavits, Ms James and Ms Locke variously claim that three areas of land generally falling north of the McPherson Ranges along the Queensland and New South Wales border, and extending to the outskirts of the cities of Ipswich and Brisbane are part of the traditional lands of the Ugarapul people. By comparing the map attached to the original Jagera #2 native title determination application filed 12 November 2003 and the map of these three areas annexed to Ms James’ affidavit, it is apparent that various parts of these three areas of land overlap that part of the Jagera #2 claim area that broadly falls north of the town of Boonah.

6    The Jagera #2 applicants oppose the joinder of Mr Markwell and Ms James and Ms Locke (“the present applicants”) as respondents in the Jagera #2 proceedings on two broad bases:

(a)    That allowing the present applicants to be joined would be inconsistent with the decision of the Full Court of the Federal Court of Australia in The Commonwealth of Australia v Clifton (2007) 164 FCR 355; [2007] FCAFC 190 (“Clifton”); and

(b)    That the present applicants do not have a sufficient interest, and it is not in the interests of justice, to allow them to be joined.

7    Section 84(5) of the Act provides:

The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.

8    Dealing with the second ground of opposition first, the phrase “in the interests of justice” was added to subsection 84(5) by way of the Native Title Amendment Act 2007 (Cth). It is trite to say that all of the Court’s determinations, including my determination of these two applications, must be made in the interests of justice. That being so, it is unnecessary, in my view, to consider whether or not the addition of this phrase to subsection 84(5) adds anything to the matters I need to consider in these two applications.

9    The question: what amounts to a sufficient interest for the purposes of s 84(5) (or its predecessor s 68(2)(a))?; was decided by the Full Court of the Federal Court in Byron Environment Centre Incorporated v Arakwal People and Others (1997) 78 FCR 1 (“Byron”). In that decision, the Full Court held that the claimed interest need not be “… proprietary or even legal or equitable in nature …”, nonetheless it must be: genuine; “… not indirect, remote, or lacking substance …”; capable of clear definition; and “be affected in a demonstrable way …” by the determination in the proceedings: see Byron at 7–8 per Black CJ.

10    It has also been held at first instance in this Court that a person claiming to hold native title rights and interests over an area of land or waters affected by a native title determination application will ordinarily have a sufficient interest to be joined to proceedings under s 84(5) of the Act: see Munn v State of Queensland [2002] FCA 486 (“Munn”) at [8] per Emmett J; and Worimi Local Aboriginal Land Council v Minister for Lands for New South Wales (2007) 164 FCR 181; [2007] FCA 1357 (“Worimi”) at [10] per Bennett J.

11    Mr Markwell and Ms James and Ms Locke in their respective affidavits claim that they hold native title interests over parts of the land and waters within the Jagera #2 claim area. Mr Markwell sets out his blood ties to the Wangerriburra and Gugin Gugin clan groups of the Mununjhali people. He also outlines the law and customs of the Mununjhali people which give rise to the native title rights and interests concerned, and states that they have “continue[d] to camp, hunt, fish [and] conduct ceremonies on [their] country”.

12    Ms James claims a native title interest to the three Ugarapul areas, noting her apical ancestors include her “paternal great Granny Susan (Bunjoey)” who, she states, was the last full-blooded Ugarapul person. Similar to Mr Markwell, Ms James details her personal experience of the traditional laws and customs of the Ugarapul people and their continued connection to the land in question. Ms Locke’s affidavit follows a similar theme to that of Ms James by claiming a native title interest in the Ugarapul lands.

13    On the strength of these affidavits I am satisfied that both the present applicants (treating Ms James and Ms Locke as one applicant) claim to have native title rights and interests in various parts of the land or waters covered by the Jagera #2 claim that may be affected by a determination of that claim, sufficient to allow them to be joined as respondents to the Jagera #2 proceedings under s 84(5) of the Act.

14    This brings me to the first ground of opposition raised by the Jagera #2 applicants: the Full Court’s decision in Clifton.

15    In Clifton, Mr Mckenzie sought to be joined as a respondent to an existing native title determination application in order to seek a determination of native title in his favour and in favour of other members of the Kuyani people, notwithstanding the fact that at that time he had made no native title determination application of his own: see Clifton at [9]–[10]. The Full Court held that this Court could not make a determination that native title was held by a particular group unless a native title determination application had been made under s 13(1) of the Act, by a person or persons properly authorised by that group: see Clifton at [57]–[58].

16    It follows that the Jagera #2 applicants are quite correct in their submission that Clifton prevents the present applicants becoming respondents in the Jagera #2 proceedings in order to seek a determination of native title in their favour over parts of the land covered by the Jagera #2 claim.

17    However, I do not consider that Clifton also stands as authority for the proposition that the present applicants are prevented from being joined as respondents in the Jagera #2 proceedings for the quite separate and different purposes of seeking to protect the native title rights and interests they claim to hold from erosion, dilution, or discount by the process of the Court determining the claims of the Jagera #2 claimants in these proceedings.

18    Indeed, various judges of this Court have held that persons in positions similar to the present applicants may be joined as respondent parties to conflicting native title proceedings to seek to defensively assert their native title rights and interests in those proceedings: see Munn at [8], Davis-Hurst v New South Wales Minister for Land and Water Conservation (2003) 198 ALR 315; [2003] FCA 541 at [27] per Branson J, Kokatha Native Title Claim v South Australia (2005) 143 FCR 544; [2005] FCA 836 at [24] per Mansfield J and Worimi at [16]–[17] per Bennett J. I respectfully agree with the views expressed in these decisions.

19    This is not to say that such persons can use their status as respondents in the conflicting native title proceedings as an alternative route to acquiring a positive determination of native title in their favour. As Clifton makes clear, the Act prescribes the only method by which a person can obtain a positive determination as to the existence of native title, and that is by way of an application under s 13(1): see Clifton at [61] quoting Moses v Western Australia (2007) 160 FCR 148; [2007] FCAFC 78 at [18]. Furthermore, I agree with what Emmett J said in Munn (at [9] – see also Clifton at [48] and [57]) that a person joined in this way as a respondent party, cannot act in a representative capacity on behalf of others claiming the same rights or interests. If they wish to do that, they need to make an application under s 13(1) and comply with the authorisation provisions of s 61 of the Act.

20    I do not understand the present applicants to be seeking to become respondents in these proceedings so that they can obtain a determination of native title in their favour. Of course, if I am wrong about their true intentions in this regard, then the law is clear: they will need to make their own native title determination applications under s 13(1) of the Act.

21    However, even if that is so, I do not consider that prevents them becoming respondents in these proceedings for the limited purposes of defensively asserting their native title rights and interests in parts of the land covered by the Jagera #2 claim and seeking to prevent any dilution of those rights and interests that may occur in the process of determining the Jagera #2 claim.

22    This disposes of both grounds of opposition to Mr Markwell’s application, so I consider he is entitled to be joined as a respondent to these proceedings for the purposes I have outlined above.

23    As to the application by Ms James and others, it presents a difficulty. In their notice of motion they seek to be joined: “on behalf of the Ugarapul people”. As I have explained above (at [19]), I do not consider a person who wishes to be joined for the purposes outlined above, can do so as a representative party. Moreover, the fact that they are seeking to be joined as a representative party may also suggest I am wrong about their true intentions in wishing to be joined as respondents in these proceedings, ie it may be that their sole purpose in seeking to be joined is to obtain a determination of native title in their favour. Ordinarily, these matters would lead me to dismiss their application. However, since they are not legally represented, I consider they should be offered the opportunity to provide clarification of

exactly what it is they are seeking to achieve by their application. I will therefore defer finally ruling on their application until they have had that opportunity.

Associate:

Dated:    6 April 2011