FEDERAL COURT OF AUSTRALIA

Mooney on behalf of the Yuwibara People v State of Queensland [2014] FCA 1244

THE COURT ORDERS THAT:

1.    Juanita Maree Johnson, Vassa Iris Hunter, Harriet Jean Hulthen, Lisa Helen Johnson and Evelyn Mavis Johnson be dismissed as parties to the proceeding.

2.    Robert Shane Tonga be dismissed as a party to the proceeding.

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

REASONS FOR JUDGMENT

1    The principal proceeding is an application for a determination of native title pursuant to s 61(1) of the Native Title Act 1993 (Cth) (“the NTA”).

2    The applicant seeks interlocutory orders that:

1.    Juanita Maree Johnson, Vassa Iris Hunter, Harriet Jean Hulthen, Lisa Helen Johnson and Evelyn Mavis Johnson be dismissed as parties to the proceeding.

2.    Robert Shane Tonga be dismissed as a party to the proceeding.

3    The interlocutory application relies on s 84(8) of the NTA. Section 84 provides, relevantly:

Coverage of section

(1)    This section applies to proceedings in relation to applications to which section 61 applies.

Applicant

(2)    The applicant is a party to the proceedings.

Affected persons

(3)    Another person is a party to the proceedings if:

(a)    any of the following applies:

…

(ii)    the person claims to hold native title in relation to land or waters in the area covered by the application;

(iii)    the person’s interest, in relation to land or waters, may be affected by a determination in the proceedings; and

(b)    the person notifies the Federal Court, in writing, that the person wants to be a party to the proceeding:

(i)    within the period specified in the notice under section 66;

…

Parties may withdraw before first hearing of proceeding

(6)    In addition to any other rights to withdraw from the proceedings, any party to the proceedings, other than the applicant, may, at any time before the first hearing of the proceedings starts, cease to be a party by giving written notice to the Court.

(6A)    In determining, for the purposes of subsection (6), when the first hearing of the proceedings starts, disregard directions hearings.

Parties may withdraw with leave of Federal Court

(7)    In addition to any other rights to withdraw from the proceedings, any party to the proceedings, other than the applicant, may, with the leave of the Federal Court, cease to be a party.

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.

4    Juanita Maree Johnson, Vassa Iris Hunter, Harriet Jean Hulthen, Lisa Helen Johnson and Evelyn Mavis Johnson (whom I will refer to as “the Johnson parties”) became parties pursuant to ss 84(3)(a)(ii) and 84(3)(b)(i) by filing a notice in accordance with Form 5 of the NTA. Form 5 requires a description of the nature of the interest claimed and the manner in which that interest may be affected by a native title determination. The Johnson parties said:

1.    We, believe that our family and us, hold Native Title rights within the whole of the area claimed through our Apical Mary and her son Abraham Johnson a Wierdi person;

2.    Contest the identity of the applicants to this Native Title claim and;

3.    Should this claim proceed without considering our evidence, then our assertion of native title rights within the claim area would be lost forever.

4.    Provide further evidence of interest claimed and attachments VH1 and VH2.

5    There was an attachment VH1 but no VH2. That attachment states, relevantly:

1.    We, oppose the application made by the North Queensland Land Council (NQLC) to the Federal Court of Australia for Native Title Determination application for Gary Mooney on behalf of the Yuwibara People QUD 720/2013.

…

We can no longer stand by in silence and watch as other Non-Indigenous and Non-Traditional Historical people claim my families’ birth right and identity. To allow this to happen may be seen as consenting, or passive agreement to the detriment of our existence, and answerable to our ancestors and descendants.

6    The Johnson parties did not appear at the hearing of the interlocutory application. Ms Juanita Johnson, representing herself and the other Johnson parties, had appeared at a directions hearing on 26 June 2014 when I made orders setting down the hearing of the interlocutory application for 16 October 2014, so she was aware of the date of the hearing. I am also satisfied that the Johnson parties were served with the interlocutory application and supporting affidavits.

7    It may be seen from the Form 5 that the Johnson parties assert that they are members of a group of indigenous persons known as the Wierdi People who hold native title rights and interests in the area claimed by the applicant in this proceeding.

8    The applicant relied upon the report of an anthropologist, Mr Daniel Leo, whose opinion is that Mary Johnson was connected to the Clermont area. The area of the applicant’s claim is far to the north-east of Clermont. That suggests that the assertion in the Form 5 that the Johnson parties hold native title interests in the claim area cannot be correct. Another anthropologist, Dr Alison Pembroke, directly expresses the opinion that the Johnson parties do not hold native title interests in the applicant’s claim area.

9    There is no evidence before the Court supporting the assertions made in the Form 5 or contradicting the opinions of Mr Leo and Dr Pembroke.

10    In Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2002] FCA 730, Dowsett J at [1] considered that persons who had filed a Form 5 claiming to hold native title in relation to the land or waters in the area covered by the application were parties, subject only to the possibility of being dismissed from the action pursuant to s 84(8) or (9).

11    In Peter Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales, State Minister under the Native Title Act 1993 (Cth) [2006] FCA 61, Bennett J said at [27] in relation to an application for joinder under s 84(3):

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…

12    That passage was applied by Jagot J in Gomeroi People v Attorney General of New South Wales [2013] FCA 81 at [20]-[24] in respect of an application for dismissal as a party under s 84(8) of the NTA.

13    The claim in the Form 5 by the Johnson parties that they hold native title rights and interests in the claim area through an apical ancestor is unsupported by evidence and allows for no more than mere speculation that they may have interests which may be affected by a determination of native title. On the other hand, there is evidence that they in fact have no native title interests in the claim area. In these circumstances, it is appropriate to exercise the Court’s discretion under s 84(8) to remove the Johnson parties.

14    Mr Tonga’s Form 5 states, relevantly:

I am Googaburra clan and have strong cultural connections with coastal areas within the Yuwibara claim. I am a traditional elder. I have been excluded from any meeting and decision making. I have more right than these people.

15    Mr Tonga did not appear at the hearing. I am satisfied that he was served with the interlocutory application and supporting affidavits. Mr Tonga wrote to the Court in terms suggesting that he wants no further involvement with the application.

16    Dr Pembroke concludes that Googaburra is one of five “barra” groups (which I understand to be clans) of the Yuwibara People. Her opinion is that in the post-contact era, the five barra groups coalesced to form one larger group which became known as the Yuwibara. She indicates that Mr Tonga is a member of the claim group by virtue of his descent from Molly (mother of Bill Bargo (aka Bill Tonga) and Annie Bargo (aka Annie Tonga)), who is one of the persons named in the application as apical ancestors of the Yuwibara People. There is no evidence before the Court supporting or explaining Mr Tonga’s assertion that he has been excluded from meetings and decision-making.

17    The circumstances in which a dissentient member of a native title claim group will be permitted to remain a respondent party are rare: Starkey v South Australia (2011) 193 FCR 450 at [61]. It has not been shown that there are circumstances that make it appropriate for Mr Tonga to remain a party.

18    After I reserved my judgment, Mr Tonga filed a notice indicating that he wishes to cease to be a party. Sections 84(6) and (6A) of the NTA allow a party other than an applicant to cease to be a party by giving written notice at any time before the first hearing, not counting a directions hearing, of the proceedings. After this time the person can cease to be a party with the leave of the Court.

19    The terms of s 84(6A) suggest that an interlocutory hearing other than a directions hearing, such as the hearing of an application that a person be dismissed as a party under s 84(8), is a hearing for the purposes of s 84(6). That means that Mr Tonga requires the leave of the Court to cease to be a party pursuant to s 84(7).

20    As the application under s 84(8) for the removal of Mr Tonga as a party had been heard before he filed his notice that he wishes to cease to be a party, I consider it appropriate to proceed under s 84(8), rather than s 84(7). I therefore exercise the Court’s discretion to dismiss Mr Tonga as a party.

Associate:

Dated:    20 November 2014