FEDERAL COURT OF AUSTRALIA

Prior on behalf of the Juru People v State of Queensland [2014] FCA 332

THE COURT ORDERS THAT:

1.    Pursuant to s 84(8) of the Native Title Act 1993 (Cth) each of Joseph Henaway and Cecilia Upkett cease to be a party to the proceedings.

2.    The applicant be granted leave to delete the name of Edward Smallwood in prayer 1 of the amended interlocutory application filed on 29 October 2013.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1        On 29 October 2013, the then current applicant filed an amended interlocutory application that, relevantly, sought an order under s 84(8) of the Native Title Act 1993 (Cth) that Joseph Henaway and Cecilia Upkett each cease to be a party to the proceedings. Earlier today I ordered under s 66B of the Act that the then current applicant be replaced by the present applicant which now seeks the relief claimed under s 84(8): see Smallwood on behalf of the Juru People v State of Queensland [2014] FCA 331.

2        On 1 November 2013, pursuant to s 64(2) of the Act, I ordered that the first current claim on behalf of the Juru people, made in proceedings QUD 554 of 2010, be combined with the second current Juru claim, made in proceedings QUD 7 of 2012. The second claim was made over a much larger area and it entirely covered the lands and waters claimed in the first.

3        Ms Upkett has been served with the interlocutory application but she has neither appeared, nor complied with any directions to file any evidence or submissions in respect of the interlocutory application. Mr Henaway has appeared and has filed some evidence. He sought to lead further evidence today, which I rejected on the basis of its lateness and Mr Henaway’s failure to serve that material in a way in which the applicant and other parties could deal with it. Mr Henaway has also made detailed written and oral submissions, together with Mr Randal Ross, his support person, opposing the applicant’s contention that he should cease to be a party.

The Legislative scheme

4        Relevantly, s 84(8) and (9) provide:

“Dismissing parties

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

Court to consider dismissing parties

(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:

(a)    the following apply:

(i)    the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and

(ii)    the person’s interests are properly represented in the proceedings by another party; or

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

Background

5        On 23 July 2012, Ms Upkett filed, in the second Juru claim, a Form 5, being a notice of intention to become a party to an application. The notice asserted that she and her family were also members of the group of people who hold native title in the area of the application but had not been included in the description of the native title group. Mr Henaway filed a Form 5 on 25 July 2012 that made a similar claim in respect of himself and his family.

6        The notification period for the second Juru claim that had been filed earlier in 2012 was complete on 26 September 2012. As a result, from then, Mr Henaway and Ms Upkett became respondents to the proceedings. Each of them opposes resolution of the combined claims by consent, unless such a resolution recognises the asserted rights and interests that they assert over Juru lands. On 18 and 30 July 2013 and 26 August 2013, the Court convened case management conferences conducted by a registrar between representatives of the applicant and, relevantly, Mr Henaway, Ms Upkett and their representatives or support persons to see if the issues between the parties could be resolved. That endeavour was unsuccessful.

7        On 8 November 2013, I made orders that the applicant file and serve evidence in support of its interlocutory application under s 84(8) on or before 15 November 2013 and that evidence in response to that material be filed and served on or before 17 January 2014. I also ordered that any evidence in reply be filed and served on or before 24 January 2014 and that any experts confer and produce a joint report, following a conference to be held not later than 31 January 2014. I made the latter order because the applicant had foreshadowed that it would reply on expert anthropological evidence in support of its application that Ms Upkett and Mr Henaway be removed as parties. The interlocutory application was fixed for hearing in Brisbane on 17 February 2014.

8        In the event, on 14 February 2014, Mr Henaway filed out of time affidavits in support of his application by Renata Prior, an elder in the claim group, and by Miles Lenoy. Mr Lenoy’s affidavit sought to rely on material that included disputed transcripts of interviews that Mr Ross and others had had with Mr Lenoy and with Mabel Puller. Subsequently, Ms Puller made an affidavit in response in which she disputed the accuracy of the transcript of her interview. I received the affidavit of Mr Lenoy and its annexures as evidence of a submission only.

9        I adjourned the proceedings on 17 February 2014 to today because of issues that had arisen in respect of the other interlocutory application listed on the same day for the replacement of the applicant under s 66B. On 27 February 2014, Mr Henaway filed detailed written submissions that appear to have been prepared with legal assistance.

Dr Pannell’s evidence

10        On 26 July 2011, I made a consent determination in respect of a relatively small portion of the Juru claim group’s territory, comprising Cape Upstart: Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819. The applicant in those proceedings had relied on a report by an anthropologist, Dr Sandra Pannell, for the purposes of satisfying me as to the appropriateness of making that consent determination. Dr Pannell opined, among other matters, that the Juru people had a separate and distinct identity as a clan or sub-tribe in a wider Aboriginal society that was present in the area. Dr Pannell’s research, which she summarised in her affidavit of 13 November 2013, led her to conclude that membership of the Juru claim group is based on three socio-cultural criteria, namely:

    the possession of an appropriate bloodline connection to Juru ancestors and Juru country;

    the acknowledgment and observation of the traditional laws and customs of the Juru people; and

    social recognition and acceptance by members of the Juru group.

11        Dr Pannell explained that she had concluded that a person was Juru through “bloodline law”, meaning genealogical descent from an apical ancestor who was born on lands traditionally associated with the Juru people. She said that bloodline is expressed by claim group members as a series of bilateral, ascending kinship links, being a genealogical connection to one or more of the apical ancestors named in the claim form. She considered Juru attitudes to adoption and concluded that, according to the laws and customs of the Juru people, a person who had no bloodline connection through direct descent did not pass on any rights to Juru country to his or her descendants.

12        Dr Pannell considered, in turn, the position of each of Mr Henaway and Ms Upkett and their antecedents in the course of her research that she had conducted principally in 2009 and earlier. She concluded as follows:

(a)        Mr Henaway claimed to be a member of the Juru people through descent from Alice Santo, also known as Alice Sanko and Alice Puller. Alice Santo is not included in the description of Juru apical ancestors in Form 1 of the native title application in these proceedings. Dr Pannell noted that Alice Santo’s death certificate indicated that she had been born in 1888, that her father was a South Sea Islander and her mother was “Minnie”. However, the certificate for her second marriage named her mother as “Annie”. Dr Pannell referred to the fact that family members believed that Alice had been removed as a child from her mother and raised by a white family in the Burdekin area. Dr Pannell concluded that, on the basis of her research, Juru traditional laws and customs were not acknowledged or observed by Alice Santo and were not transmitted by her to her offspring. She noted that Alice Santo was not among the people identified as Juru by her oldest Juru informant, the late Peter Prior, during research that she had carried out with Mr Prior in the late 1990s. Accordingly, she concluded that Alice Santo was part of the South Sea Islander community based in Ayr and that her descendants did not possess a traditional connection to Juru territory and hence were not Juru people.

(b)        Ms Upkett claimed to be a Juru person through being the great-great-granddaughter of a woman named Louise and the great-granddaughter of Louise’s daughter, Topsy Tatters or Topsy Taiters. Neither Louise nor her daughter, Topsy Tatters, are included in the description of Juru apical ancestors in Form 1 of the native title application. Dr Pannell noted that Ms Upkett believed that Topsy’s mother, Louise, had been removed from Bowen to an Aboriginal mission near Proserpine. She opined, on the basis of her research, that by 1905 Topsy Tatters did not acknowledge or observe traditional laws and customs of the Juru people, and hence she did not transmit those traditional laws and customs to her offspring. Dr Pannell said that the Tatters family was also not among the people identified as Juru by Peter Prior during the research she carried out with him in the late 1990s. She concluded that Louise and Topsy Tatters were part of the South Sea Islander community based in Bowen and that, accordingly, their descendants did not possess a traditional connection to Juru territory, and were thus not Juru people.

13        Subsequently, another anthropologist, Dr Kevin Mayo, was commissioned by North Queensland Land Council to provide an opinion based on materials provided in interviews as to whether, among others, the families of Mr Henaway and Ms Upkett were Juru according to descent, or, if relevant, by adoption, under the Juru people’s laws and customs. His task included conducting a review of Dr Pannell’s report and its conclusions. And, in turn, Dr Mayo’s report was considered by Dr Pannell to see whether anything in it caused her to alter her conclusions. She opined that his research did not cause her to change her opinions that the descendants of each of Alice Santo and Louise and Topsy Tatters do not hold rights and interests in Juru country under the traditional laws and customs of the Juru people.

Dr Mayo’s evidence

14        Dr Mayo prepared a report, which he provided to the Land Council on 3 June 2013. The Land Council extended his commission to examine further material, and he provided an amended report in September 2013. Dr Mayo reviewed Dr Pannell’s report, and agreed with her opinions concerning the three criteria by reference to which the Juru claim group defined itself, “bloodline law”, and the Juru people’s attitudes to an adopted person not being able to pass rights to Juru country on to their descendants. His conclusions were as follows:

(a)        As to Mr Henaway: Dr Mayo reviewed claims made by family members descended from Alice Santo that her mother was “Minnie” and that her grandparents were Herbert and Lizzie Gordon. Dr Mayo noted that the informant for the certificate for her second marriage named her mother as “Annie” and that Alice Santo was likely to be the informant for that information on her own marriage certificate. He said that he was able to trace those individuals to a limited extent and their links to areas that lay outside the Juru claim area. He recommended that further research be carried out, noting that the locations referred to by the Henaway family were outside the claim area. In his second report, Dr Mayo said that the Henaway family said that they had documentary evidence supporting their claims, but were unwilling to show that evidence until they had consulted with the whole family. He noted that, although the family claimed their potential apical ancestor was Lizzie Gordon (née Reardon) and that she was the mother of Minnie Gordon, Queenie Gordon and Jessie Gordon, the family had yet to show evidence supporting that claim despite having said that the evidence was available. He observed that his own research, in a brief period of time, had enabled him to establish that some archival material referring to people mentioned in the claim by the Henaway family had located them in the Ayr district. However, he strongly recommended further research to ascertain the validity of that claim. He said that the areas to which the Henaway family referred as places where their antecedents and some living members of their family worked and lived were on the northern side of the Burdekin river, including Ayr, Lochinvar Station, Seaforth, Maidavale, and Plantation Creek. These places were outside the current boundary of the Juru claim area, which ends at the southern side of the Burdekin River. Dr Mayo noted that some people claiming Juru connection said that the border should extend North, at least to Ayr, if not as far as the Haughton River.

(b)        As to Ms Upkett: Dr Mayo considered the claims of Ms Upkett and came to the conclusion that there was no direct archival evidence to support the recognition as Juru people of the descendants of Louise and Topsy Tatters.

The lay evidence

15        Renata Prior made an affidavit on 13 February 2014. She affirmed that she was a daughter of Peter Prior and a current elder in the Birri Gubba nation, which is the larger Aboriginal tribal grouping of which the Juru people form part, identified by Dr Pannell’s anthropological research. She said that she had made her affidavit on the basis of knowledge that had been provided to her by her father in relation to the Henaway and Puller families, whom, she asserted, were Juru descendants. She asserted that the Alice Puller (née Henaway and Santo) family group in the Burdekin district had always been recognised as Birri Gubba descendants. I admitted that assertion as evidence of the reputation of that family on the interlocutory application. She said that that family had lived all their life in the Burdekin district and had always been identified as Juru people with strong cultural links by her father. Ms Prior said that her father and other members of her family had carried out traditional ceremonial practices with the Henaway and Puller families in the Burdekin district, including along the Haughton River and Barrattas Creek, and that she had been involved with sacred burials near Ayr. She also said that she had been involved with the Henaway and Puller families in the reburial, at Plantation Creek, of Juru skeletal remains that had been returned from Europe. She said that she had always ensured that she maintained a strong relationship with the Henaway and Puller families to exchange their knowledge of Juru and Birri Gubba customs.

16        Mr Henaway said that he and his family members had prepared a draft anthropological report which he sought to tender for the first time this morning. I rejected that tender on the basis that, while it had been referred to in a passage of Ms Renata Prior’s affidavit that I also rejected, it had not been provided to any of the parties contemporaneously with that affidavit or at all and would have been seen by the applicant and other parties for the first time today.

17        In response to Ms Prior’s affidavit, the applicant filed affidavits from Mabel Puller and Pamela Lenoy, who is Ms Puller’s daughter.

18        Ms Puller said that she was the last living child of Alice Santo and Andrew Puller, and was very concerned about claims made about her mother by the Henaway family. She said that she had been brought up by Alice Santo (or Puller), but was never told where her mother came from, and said that her mother did not know that. She said that she never knew her mother’s mother, and that each of her mother’s father, Cassie Santo, and husband, Andrew Puller, was a South Sea Islander. Ms Puller said that her mother had told her, while she was walking her to school one day, that Alice Santo did not know her own mother because she had been taken away from her mother when she was a little baby and raised by a white family. She said that she and her family had not claimed to be Juru through her mother. She said that her mother had never taught her anything traditional, including any Aboriginal or Juru stories, dances, language, or anything to do with sites or the like.

19        Ms Lenoy said that she had conducted research about her family history and had access to the files concerning her grandmother from the Department of Communities and Personal Histories. She noted that Alice Santo’s father, Cassie Santo, was from Vanuatu, and that Alice Santo had married Andrew Puller in 1928. She said that he had come from Vanuatu to Queensland in 1896 and was naturalised as an Australian when he was 45 years old. She said that Andrew Puller had died when her mother was five. She claimed that her grandmother’s death certificate was inaccurate in its description of the number of children she had had. Ms Lenoy said that she knew her grandmother when she was growing up and that Alice Santo never told her anything about Aboriginal culture or anything like that. Ms Lenoy said that her grandmother lived in an area in Ayr, called Kelly’s Paddock, where there were many other South Sea Islander families. She said that her mother was 83 years old and had travelled to Vanuatu a number of times to visit her father’s and grandfather’s country, but neither she nor Ms Lenoy had ever been anywhere within her grandmother’s country because her family did not know where that was.

The parties’ submissions

20        The applicant contended that, on the anthropological and other evidence, it was tolerably clear that neither Mr Henaway nor Ms Upkett had established any basis upon which each, he and she, should remain as a party to the proceedings. Additionally, it argued that the Court had power to remove a person who might otherwise legitimately be a party to the proceedings if their presence in proceedings was capable of obstructing the proceedings’ progress in circumstances where there is insufficient justification for them remaining as a party.

21        Mr Henaway argued that the evidence of Renata Prior and material to which he drew attention in his submissions, including Mr Lenoy’s affidavit and its annexures, established a sufficient bona fide case that would justify his remaining as a party so that he could oppose any determination of native title that did not include Alice Santo as one of the apical ancestors in the description of the claim group. He asserted that he was not a person to whom either s 84(9)(a) or (b) applied because he had, and continues to hold, native title interests that might be affected by a determination in these proceedings. That was because of the exclusion of Alice Santo in the description of the claim group. Mr Henaway argued that Mabel Puller’s evidence did not negate his claim. That was because a determination of native title, so he said, recognised the native title group, and not individuals, as a society. He claimed that his family was part of that society and had been taught by their elders about native title rights recognised by the Juru people. He claimed that Alice Santo was a sister born to the same mother as Eliza Lampton, who was one of the apical ancestors referred to in the application. He said that his family had attempted to collect all the relevant information but that it had not had any assistance from the Land Council or the benefit of anthropological evidence.

22        He told me in submissions today that Dr Pannell had not interviewed any of his family except himself. He told me in those submissions of what he said was the substantive involvement he had had with Juru people and of working with them. He also told me of the assertion he and his family wished to make, that the boundary of the Juru lands should be seen as more extensive than the description of those lands in the claims and anthropological reports. He said that Dr Pannell’s last interview had been conducted in 2009, and that Dr Mayo had told many of his family to compile and provide him with further material, but Dr Mayo had not returned to obtain that material.

Consideration

23        In Peter Hillig as administrator of Worimi Local Aboriginal Land Council v Minister for Lands [2006] FCA 61 at [27], Bennett J held that:

“The right to become a party to proceedings for determination of native title under the Native Title Act is restricted to persons whose interests may be genuinely, demonstrably and not indirectly affected by a determination of native title and which are not remote or so insubstantial that it will be mere speculation as to whether, and if so, how they may be actually affected by the determination (Byron Environment [Centre Inc v Arakwal People (1997) 78 FCR 1]).”

24        Jagot J, in Gomeroi People v Attorney-General of New South Wales [2013] FCA 81 at [20], adopted Bennett J’s distillation of the principle in Byron Environment 78 FCR 1 at 7F-8C per Black CJ and 42D-F per Merkel J. I will do so too.

25        I am satisfied based on the material before me, and the lack of any participation by Ms Upkett in the proceedings to defend her presence as a party, that she is not a person who has interest that may be affected by a determination in the proceedings. On the anthropological evidence, the apical ancestor through whom Ms Upkett claims, Louise and Topsy Tatters, have no relevant connection to the Juru People. I accept Dr Pannell’s and Dr Mayo’s evidence to that effect.

26        Notably, Mr Henaway has not filed any affidavit himself. He has not deposed to his connection with the Juru people or the lands and waters claimed in the present combined native title application. Nor has he given any evidence himself of any knowledge of Juru laws and customs or how he supports his own application in the Form 5 he filed as long ago as 25 July 2012. The position is that, although Mr Henaway and his family had asserted to Dr Mayo while he did his research up to September 2013 that documents existed to establish the connection of his family to the Juru people and their right to be included within the description of the claim group, as late as today, no such evidence has been provided to any of Dr Pannell, Dr Mayo, the applicant or, more significantly, the Court.

27        After the orders were made on 8 November 2013, Mr Henaway had been aware that he should have put on his evidence by 17 January 2014. But, he did not do so. He has only very late in the piece filed some evidence, but none by himself of his own knowledge. I accept that a person without legal training, such as Mr Henaway and his support person Mr Ross, may find it very difficult to prepare in a legally intelligible or admissible form evidence to be used in proceedings. But having made all the allowances I can for the fact that Mr Henaway is disadvantaged to some extent by acting for himself without the assistance of lawyers, I have come to the conclusion that, in the 20 months since Mr Henaway first filed his claim to be made a party on the basis that his family ought be included in the description of the claim group, he has not acted with any reasonable amount of diligence to put forward an intelligible or substantive basis for his claim.

28        Parties to proceedings in this Court have an obligation under Pt VB of the Federal Court of Australia Act 1976 (Cth) to conduct litigation in a way that achieves the overarching purpose of facilitating the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible. There is a public interest in court proceedings being determined in that way, not least because members of the public, and in this case a very large collection of people both in the claim group and in what Mr Henaway seeks to have determined to be an extended claim group, are entitled to some certainty as to who has or does not have rights to exercise on behalf of the Juru people.

29        Whether Mr Henaway would be able to establish any evidentiary foundation to support the claim he asserts is nothing more than mere speculation. Mr Henaway has not put the Court in the position of being able to consider any such evidence that may lend support to his asserted claims. To allow Mr Henaway to remain as a party to the proceedings, opposing the determination of native title that the applicant and all other respondents wish to have made by consent on 11 July 2014, would frustrate the legitimate expectations of all other persons who have participated in the proceedings in accordance with the overarching purpose in Part VB of the Federal Court of Australia Act. Mr Henaway has not so participated. He has not put the Court in a position to consider that the claim he wishes to advance is more than simply speculative, remote or insubstantial.

30        Indeed, on the evidence of Dr Pannell and the material considered by Dr Mayo, I am satisfied that the real likelihood is that Alice Santo cannot be shown to be an apical ancestor whose inclusion is necessary to describe accurately those who now may assert title as members of the Juru people. I accept Dr Pannell’s evidence and Dr Mayo’s evidence of the material each considered. That evidence is corroborated by Ms Puller’s and Ms Lenoy’s evidence. For these reasons, I am satisfied that it is merely speculative that Mr Henaway could assert any interest that would be affected by the determination of native title sought in these proceedings.

Conclusion

31        In those circumstances, I am of opinion that I should order that Cecilia Upkett and Joseph Henaway cease to be parties to these proceedings.

Associate:                Dated:    7 April 2014

SCHEDULE

QUD 554 OF 2010

BETWEEN:

CAROL PRIOR, RAYMOND LAMPTON, RAYMOND GASTON, COLLEEN POWER, RAYLENE OUI, TANYA CHATFIELD, IRIS GLENBAR AND LENORA ALDRIDGE

Applicant

AND: