FEDERAL COURT OF AUSTRALIA

Malthouse on behalf of the Bar Barrum People #6 v State of Queensland [2016] FCA 692

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed 1 June 2016 is dismissed.

2.    No order as to costs.

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

EX TEMPORE REASONS FOR JUDGMENT

REEVES J:

1    Section 84(5) of the Native Title Act 1993 (Cth) (the NTA) provides:

The Federal 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 and it is in the interests of justice to do so.

2    Relying on this provision, Mr Phillip Barlow and his daughter, Ms Kim Barlow, who I will refer to hereafter as the Barlows, have filed an application seeking to be joined as non-claimant parties, which I take to mean respondent parties, in this proceeding. This proceeding is the Bar Barrum Peoples #6 native title determination application. I will refer to it as the Bar Barrum #6 application. The claim area of this application is generally located to the west of Atherton, south of the Walsh River, north of Emuford and east of Ootann in North Queensland.

3    It is also of particular importance to this application to record that this Bar Barrum #6 native title determination application, along with the native title determination applications in Bar Barrum #2, #3 and #4 are set down for a consent determination hearing at Dimbulah Station on the Atherton Tablelands on Friday 10 June 2016, that is, two days hence.

4    Two issues are raised by the Barlows’ application: first, whether I am satisfied that they have interests that may be affected by a determination in the Bar Barrum #6 proceeding; and, secondly, if so, whether I am satisfied it is in the interests of justice to allow them to be joined as respondent parties in this proceeding.

5    Ms Barlow has filed an affidavit in support of their application, and they both attended an urgent hearing yesterday, 7 June 2016, where they outlined the interests which they claimed may be affected by a determination in this proceeding.

6    Mr Dore, the principal legal officer of the North Queensland Land Council, and who acts for the Bar Barrum applicant in the Bar Barrum #6 application, filed two affidavits, one of which specifically dealt with the interests claimed by the Barlows.

7    The Barlows claim that they are the last direct descendants of the Year-raah-ree Tribe, also known as the Lost Tribe of North Queensland. In support of that claim they referred me to the following attachments to Ms Barlow’s affidavit.

8    First, a 1958 newspaper report of the death of Mr Billy Barlow, Mr Barlow’s grandfather and Ms Barlow’s great-grandfather. Secondly, a publication, Jones D, Hurricane Lamps and Blue Umbrellas: A History of the Shire of Johnstone to 1973 (G.K. Bolton Printers, 1973), which records, at page 238, that Mr Billy Barlow:

…was said to have been the last of the Year-raah-ree Tribe against whom punitive action was taken in the eighties [ie 1880s] by police and miners after several miners had been murdered at the Upper Russell. When the tribe fled, they left behind a baby which Jimmy Thomas took home and reared as Billy Barlow.

9    Thirdly, another publication, The Aboriginal Settlers, which records that:

The aboriginal people living within the boundaries of what is now the Eacham Shire were the Boonjie, Yungaburra and Millaa Millaa tribes, each with its own distinct language. On rare occasions when a grand corroboree was held, members of these normally insulate tribes would come together on one of the Bora Grounds, for they shared a common belief in the good and evil spirits of their environment.

10    As I understand it, although it was not entirely clear, the Year-raah-ree Tribe encapsulates all of the three tribes mentioned in the above article. Finally, they relied upon a DNA certificate issued by the Latrobe University which they say shows that Mr Barlow’s mother was a full blood Aboriginal woman.

11    In oral submissions, Mr Barlow stated that he was not seeking a determination of native title for his group, that he was not disputing all the Bar Barrum People’s claims and that he was only disputing some of the areas they are claiming on the Atherton Tablelands.

12    On the question of the lateness of this application, he stated that they have been trying to get recognition of their native title interest since 2008 without any assistance or support. He said that, in that process, someone in Minister Macklin’s office in Canberra told them not to provide the documents about their history to anyone. Further, he said someone else suggested that they should spend $1,500 to obtain an anthropologist report, but they did not think that was necessary. He said they went to the North Queensland Land Council four or five years ago to advance their interests, but they were not able to get any support. He also said that they do not have the resources necessary to employ a lawyer. When I asked him why they did not apply earlier without using a lawyer as they did with this application, I did not obtain what I considered to be a satisfactory explanation.

13    In his affidavit, Mr Dore provided the following evidence about the Barlows’ native title interests. First, he said it has never been suggested that the members of the Barlow family are not Aboriginal people. Secondly, he said that the Barlow family’s ancestors include Mr Charlie Cowley and Ms Polly Cowley. I interpose that Ms Barlow confirms this in her affidavit, where she says her mother, Alima May Barlow, is the only child of Charlie and Polly Cowley. Finally, Mr Dore said that the descendants of Charlie and Polly Cowley are listed amongst the native title holders in the Tablelands Yidinji Peoples #1 and #3 native title determinations made by this Court on 14 December 2012 and 26 March 2013 respectively: Johnson on behalf of the Tableland Yidinji People #1 v The State of Queensland [2012] FCA 1417 and Joseph on behalf of the Tableland Yidinji People #3 v State of Queensland [2013] FCA 280.

14    As to the timing of this application, Mr Dore said he has had numerous conversations with Ms Barlow in which she has made claims to the same effect as those described above. On each such occasion, he said he has asked the Barlows to provide documentary evidence to prove their claims and they have refused or failed to provide it. He said the most recent conversation occurred at a meeting which took place on 2 March 2016. I interpose that Ms Barlow confirms this in her affidavit. At that meeting, Mr Dore said that the Barlows made claims that they were:

…traditional owners of a broad unspecified area, which includes, but is not limited to, the current Tableland Yidinji determined area.

15    Mr Dore said that, at that meeting, the Barlows said they had documentary evidence of their claims and pointed to a file of papers they had with them. However, despite his requests that they provide copies to the North Queensland Land Council, he said they declined to do so. He also said they demanded that he commit the North Queensland Land Council to expending moneys to “fix” the situation. He said he declined. He concluded by saying that he knew of no reason why the Barlows’ application for joinder in this proceeding could not have been made much earlier.

16    In Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 (Bonner), I said of the interests that are sufficient to found an application under s 84(5) of the NTA that:

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.

17    The gist of my observations in Bonner (at [10]) is that a person claiming to hold native title rights and interests over an area of land or waters will ordinarily have a sufficient interest to be joined in proceedings, subject to the other requirements of s 84(5). Taking into account those principles and the evidence I have outlined above, I find that the Barlows do have sufficient interests to support an application for joinder as respondent parties in this proceeding.

18    The next question, however, is more problematic for them. It is whether those interests may be affected by a native title determination in the Bar Barrum #6 proceeding. In this context, I consider, as have other judges of this Court, that the word “affected” in s 84(5) must mean adversely affected. That being so, the question is whether a native title determination in the Bar Barrum #6 proceeding, relevantly and generally covering areas that lie to the west of the Atherton Tablelands, may adversely affect the Barlows’ native title interests. Self-evidently, that could only be so if those interests relate to land or waters that fall within the claim area of the Bar Barrum #6 proceeding.

19    As I have already mentioned, in his oral submissions, Mr Barlow said that the areas he regards as being in dispute are on the Atherton Tablelands. This is consistent with a statement in the affidavit of Ms Barlow, where she says:

Its [the Year-raah-ree Tribe] boundaries include Yungaburra, Kairi and Tinaroo and surrounding areas.

Apart from some broad references to the Atherton Tablelands, this is the only evidence I have been able to locate in her affidavit which identifies where the land or waters of the Year-raah-ree Tribe lay or lie. I should say “relevantly” because there are some references to those lands extending to the north and east of the areas I have just mentioned.

20    Significantly for this application, all of these areas are some distance to the east of the most north western boundary of the Bar Barrum #6 application claim area. Furthermore, as Mr Dore states in his affidavit, and as Ms Barlow appears to confirm in hers, those lands lie within the area of the two native title determinations made in relation to the Tableland Yidinji People’s claims (see at [13] above). Since the Bar Barrum #6 claim area does not cover the lands that I have described, I do not consider the Barlows have established that their interests may be adversely affected by a native title determination in this proceeding.

21    Having reached this conclusion, it is unnecessary for me to consider the second issue identified above: whether I am satisfied it is in the interests of justice to allow the Barlows to be joined as respondent parties in this proceeding. However, for completeness, I will. Had I been satisfied about the first issue, I would not have been satisfied it was in the interests of justice to allow the Barlows to be joined in this proceeding at this late stage. In compendious form, my reasons for that conclusion are these.

22    First, the joinder of the Barlows as respondent parties would most likely have led to the adjournment of the Bar Barrum #6 consent determination hearing this coming Friday, 10 June, and that would, in turn, have caused a significant waste of the public and private resources that have already been devoted to arranging that hearing. It would also most likely have caused further delays in the finalisation of the four Bar Barrum applications that are to be dealt with at that hearing, noting that those claims are each approximately 15 years old. This delay would cause prejudice to the Bar Barrum People in general and significant prejudice to those members of those People who may pass away during the adjourned period.

23    Secondly, the Barlows have offered no satisfactory explanation for their failure to make this application at an earlier time. Indeed, all the evidence suggests they could have made this application, as they did this time, without the assistance of a lawyer. And they could have done that at any time since 2008 when they began to agitate for the recognition of their native title interests. For these reasons, the Barlows’ application to be joined as respondent parties in this proceeding must be dismissed.

24    Turning to the question of costs, the Bar Barrum Applicant has sought an order for costs on an indemnity basis against the Barlows. In making that application, it has particularly relied upon the decision of Rares J in TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2016] FCA 553 (TJ). It has also relied upon the notice Mr Dore recently gave to the Barlows of his intention to apply for such an order if they were to proceed with this application and fail.

25    Section 85A of the NTA provides:

(1)    Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

Unreasonable conduct

(2)    Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.

26    As numerous decisions of this Court have held, this provision does not prevent an order for costs being made. Instead, it expresses a default position that such an order is not the usual course. The inclusive exemplification of an unreasonable act or omission in subsection (2) bears this out. An order for indemnity costs is made if there is some special or unusual feature present in the case to justify such an order. Thus, the indemnity costs order in TJ was largely, if not totally, based on his Honour’s findings that there had been an abuse of the Court’s processes in that matter. There has been no such abuse of process in this matter. Furthermore, I do not regard Mr Dore’s threat to apply for this costs orders as being akin to a Calderbank offer.

27    There is therefore no feature of this case which warrants an indemnity costs order. As to whether I should make a standard party and party costs order, I note these matters. First, the Barlows were successful in showing that they had sufficient native title interests to be joined and I do not doubt their genuineness on that question. Secondly, they are self-represented. While that does not always prevent a costs order being made, I consider it is a factor to be taken into account in this instance. Thirdly, there is the factor I have already mentioned that s 85A of the NTA reflects a legislative intention that costs orders are not usually made in proceedings under the NTA. Finally, while their application was late and no satisfactory explanation was offered for their tardiness, I do not consider those factors alone justify my making an order for costs against the Barlows. Costs, after all, are made to compensate, not to penalise. For these reasons, I do not consider it is appropriate to make any costs order against the Barlows in this application.

Associate:        

Dated:    22 July 2016

SCHEDULE OF PARTIES