FEDERAL COURT OF AUSTRALIA

Anderson on behalf of the Quandamooka People (Mulgumpin/Moreton Island Claim) v State of Queensland [2019] FCA 1886

ORDERS

THE COURT ORDERS THAT:

1.    The application for joinder be dismissed.

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

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE AND REVISED)

RANGIAH J:

1    The application presently before the Court seeks the joinder of Mr Dale Ruska and Ms Tracie Kaden as respondents to the principal proceeding.

2    The principal proceeding is the application of the Quandamooka People for a determination of native title over Moreton Island in South-East Queensland. The hearing of an application for a consent determination of native title in that proceeding has been set down for 27 November 2019. The application for joinder was filed on 31 October 2019 and has been listed for hearing on an urgent basis, given that its success would inevitably require adjournment of the consent determination hearing.

3    The joinder applicants seek to join the proceeding in order to bring a proposed interlocutory application to:

    Declare the invalidity of decisions made by the native title claim group on 30 September 2019 to defer research into the composition of the claim group and authorise the consent determination and two Indigenous Land Use Agreements (ILUAs).

    Compel the native title applicant to instruct their legal representatives, Queensland South Native Title Services (QSNTS), to take steps to obtain expert evidence upon the composition of the claim group and assist the claim group to determine its composition.

    Declare that decisions of the kind made on 30 September 2019 must be made in accordance with a mandatory traditional decision-making process.

4    The application for joinder is opposed by the native title applicant. The State of Queensland has indicated that it will abide by the decision of the Court, but broadly agrees with the submissions of the native title applicant.

The issues

5    The application for joinder is brought under s 84(5) of the Native Title Act 1993 (Cth) (NTA), which provides:

Joining parties

(5)    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.

6    It is necessary to consider:

(1)    whether the applicants for joinder have a relevant interest;

(2)    whether that interest may be affected by a determination in the proceeding; and

(3)    whether it is in the interest of justice for the applicants to be joined as parties.

7    The joinder applicants are members of the claim group. It is not in dispute that they have an interest that will be affected by a determination of native title. What is in dispute is whether it is in the interests of justice that they be permitted to become respondents to the application.

8    The joinder applicants have concerns about resolutions passed at a claim group meeting held at North Stradbroke Island on 30 September 2019. The claim group passed resolutions that authorised the native title applicant to:

(1)    agree to the proposed consent determination;

(2)    enter into a ILUA to settle tenure and land issues with the State, and another ILUA with entities operating the Tangalooma Resort and the State;

(3)    confirm that the Quandamooka People are descendants of the 12 apical ancestors named in the native title determination application and defer further consideration of the composition of the Quandamooka People.

9    The joinder applicants wish to bring an interlocutory application to correct what they say are defects in the processes undertaken to authorise entry into the consent determination and entry into the associated ILUAs. The defects are alleged to be:

(1)    The claim group is not correctly identified, in that two apical ancestors of the Quandamooka People, Mary Juno (King) and William Moreton, have been excluded and another person, Mary Indoole Compignie has been incorrectly included as an apical ancestor.

(2)    The notice calling the meeting was deficient, in that it failed to inform the claim group of the issues pertaining to apical ancestors and as to what was required to be determined under s 251A to authorise entry into the ILUAs.

(3)    Information circulated by Quandamooka Yoolooburrabee Aboriginal Corporation (QYAC) in advance of the meeting, together with the proximity to the consent determination date, placed undue pressure upon claimants to vote in favour of the resolutions proposed.

(4)    The numbers who attended the meeting were more than double the numbers who had attended any previous authorisation meeting and included persons not known to a significant number of other people in the claim group.

(5)    The mandatory process required under s 251A of the NTA was not complied with.

The submissions of the joinder applicant

10    The joinder applicants assert that the current claim omits two apical ancestors, Mary Juno (King) and William Moreton, whose descendants have reasonable claims to be included in the claim group.

11    The joinder applicants accept that even though Mary Juno (King) is omitted as an ancestor, her descendants are otherwise included in the claim group through descent from other ancestors.

12    The joinder applicants allege that there are approximately 50 descendants of William Moreton who now live in New Zealand and in various locations in Queensland who have not been included in the claim group description and were not invited to participate in the authorisation meeting. There is an affidavit from a Mr Ngatauroa Kaka, who asserts that he is a Quandamooka descendant of William Moreton.

13    The joinder applicants also allege that a person named in the application as an apical ancestor, Mary Indoole Compignie, is not in fact a Quandamooka ancestor. The joinder applicants assert that the evidence concerning the composition of the claim group has not yet been the subject of expert anthropological review for the claim group to consider. They have formally requested the issues concerning the claim group to be dealt with. They assert that the issue of Mary Indoole Compignie’s continued inclusion as an apical ancestor was first raised with QSNTS in 2007. They assert that they raised these issues at an earlier authorisation meeting in December 2018 and then by letter dated 29 May 2019 to QSNTS. In June 2019, QSNTS engaged two anthropologists to investigate these issues, but their investigations will not be completed until after the proposed consent determination.

14    The joinder applicants allege that the notices advertising the authorisation meeting were defective because they did not address traditional decision-making processes, and merely stated that the decisions to enter into the two ILUAs required compliance with s 251A of the Act.

15    Further, the joinder applicants allege that the only written information provided to the claim group about the apical ancestor dealt only in a summary way with the Mary Indoole Compignie issue.

16    The meeting of 30 September 2019 resolved that:

Resolution 6: No traditional decision-making for this meeting:

This meeting resolves that the Quandamooka People do not have a process of decision-making that under traditional laws and customs of the Quandamooka People must be complied with in relation to litigation in the courts, in particular, in relation to claimant applications and their resolution.

(Emphasis in original.)

17    The joinder applicants assert that the claim group was not asked to determine whether there were traditional decision-making processes that must be followed in relation to the proposed decisions.

18    The joinder applicants allege that in the lead-up to the authorisation meeting, QYAC had published information in various forms stating, in effect, that claimants must vote in favour of all the proposed resolutions if they supported native title being recognise over Moreton Island. They assert that this placed undue pressure upon members of the claim group.

19    The numbers of attendees at the authorisation meeting were significantly higher than any previous claim group meetings that had been convened. The joinder applicants, and others who have provided affidavits in support of their application, state that they did not recognise many of the people who attended. They submit that the native title applicant must demonstrate that all of the meeting attendees were entitled to vote at the meeting.

20    The joinder applicants allege that there was a traditional decision-making process for important decisions about the country of the Quandamooka People that was required to be followed. They contend that the required process was to utilise a series of family group and elders group meetings to attempt to reach a consensus before taking it to a vote. They contend that the essence of these processes is, firstly, family-based decision-making with ultimately elders of each family group attempting to reach consensus; secondly, elders group meetings in various combinations and contexts; and, thirdly, prioritisation of claim-based decision-making rights, which is a form of adherence to the more widely-observed tradition of respecting those who can speak for particular tracts of country.

21    The joinder applicants assert that the description contained in Resolution 6 misled the native title claim group, in that it misstated the law as to what decision-making process must follow. They submit that the claim group should have been told that if there is a process of decision-making that must be complied with under, under their traditional laws and customs, authorisation must proceed in accordance with that process. They submit that there was no information or discussion about whether there was a mandatory traditional decision-making process that applied to authorising decisions about matters such as those contained in the two proposed ILUAs.

Consideration

22    In this case, the factors relevant to the interests of justice include:

(1)    the prospects of success of the proposed interlocutory application;

(2)    the utility of any joinder;

(3)    the potential for prejudice to the claim group as a whole and to the respondents, who have agreed to resolve the proceedings by consent;

(4)    the stage of the proceedings at which the application for joinder has been made; and

(5)    any alternative means by which the joinder applicants can pursue their concerns.

23    The occasions when a member of the claim group will be permitted to become a respondent to a proceeding for a determination of native title will be rare: Pegler on behalf of the Widi People of the Nebo Estate #1 v State of Queensland [2014] FCA 932 at [14]; Starkey v State of South Australia [2011] FCA 456 at [61] and [68]. That is because the Act provides a detailed process for the authorisation of a determination application, provides for authority of the authorised applicants to deal with the application and provides a prescribed process for replacement of the authorised applicant: Chubby on behalf of the Puutu Kunti Kurrama and Pinikura People v State of Western Australia [2015] FCA 964 at [22]–[25]. In particular, s 62 of the Act provides that, “The applicant may deal with all matters arising under this Act in relation to the application”. The Act confers power upon the claim group to choose those who will represent the group, and those persons are (subject to any limitations placed by the claim group upon their authority) entitled to make decisions on behalf of the group in relation to the application. Dissenting members of the group will not ordinarily be permitted to join a proceeding in order to dispute the decisions of the claim group and its authorised representatives.

24    I will consider each of the concerns that the joinder applicants wish to raise in their proposed interlocutory application.

Apical ancestors and composition of the claim group

25    If they are joined, the joinder applicants propose to dispute the composition of the claim group. They assert that Mary Juno (King) and William Moreton should be included as apical ancestors of the Quandamooka People and that Mary Indoole Compignie should be removed. It is difficult to assess the strength or otherwise of these assertions on the basis of the limited evidence available. However, as a matter of impression, the case sought to be made by the joinder applicants is arguable, but not strong.

26    There has been no formal research conducted about the apical ancestors of the Quandamooka People since the joinder applicants raised their concerns. QSNTS has agreed to engage two anthropologists to conduct research about those issues. I do not regard that as a concession that there is a problem with the composition of the claim group. It appears to be merely a recognition that concerns have been raised by some members of the group that should be investigated.

27    It is relevant that the joinder applications have sought to join the application in order to pursue their concerns about the composition of the claim group at a very late stage.

28    The Quandamooka obtained a consent determination over North Stradbroke Island in 2011. The apical ancestors named in that determination are the same ancestors named in the present proceeding. The present proceeding was commenced in 2014. Mr Ruska deposes that he was aware for the “majority of his adult life” about the need for recognition and inclusion of Mary Juno (King) and William Moreton. The only explanation offered by Mr Ruska for why he did not seek to have them included as apical ancestors in the North Stradbroke Island determination is that he withdrew from involvement in that proceeding, preferring to exercise his family’s “original first nation sovereign rights” to their tribal lands.

29    The native title applicant convened an authorisation meeting in December 2018 in advance of a proposed consent determination for the Moreton Island claim, which had been listed for 8 March 2019. At that meeting, Mr Ruska and Ms Christine Moyle called for review of the apical ancestors based on, “new studies and evidence that has come to light”. They do not appear to have then nominated Mary Juno (King) and William Moreton as apical ancestors who should be included. A resolution put forward by the native title applicant regarding the description of the Quandamooka People in accordance with the current claim group description was defeated by majority vote. In view of the defeat of that resolution, the remainder of the meeting did not proceed and the consent determination hearing was vacated. QSNTS asked Mr Ruska to provide new information within seven days so that it could be assessed and considered, but it appears that he refused to do so.

30    The Ruska family approached the National Native Title Tribunal and the Court for assistance to mediate with claim group members and QSNTS. On 20 May 2019, a registrar advised them that the Court could not order a mediation with non-parties. However, they did not at that stage apply for joinder.

31    The joinder applicants and their supporters eventually provided information to QSNTS on 29 May 2019 in relation to Mary Indoole Compignie. It consisted of a personal history information document that had been prepared on in 2005 and had apparently been available to Ms Moyle since 2010. The letter also identified, for the first time, William Moreton as an additional apical ancestor. No supporting information was provided in relation to William Moreton at that stage.

32    Correspondence between Ms Moyle and QSNTS in June and July 2019 demonstrates that, despite having requested QSNTS to conduct a review of the apical ancestors by independent experts, the joinder applicants and their supporters declined to cooperate with a review or provide further information unless QSNTS first met to discuss, “the full range of legal, political and social implications”.

33    On 1 August 2019, the proceeding was set down for a consent determination hearing to be held on 29 November 2019. The Ruska family eventually provided further information to QSNTS on 20 September 2019, after the authorisation meeting had been notified. Information concerning Mary Juno (King) was provided to QSNTS for the first time on 26 September 2019. While Ms Sandra King states that her father started sourcing and collating her family genealogy in about 2008, she has provided no explanation as to why she did not assert that Mary Juno (King) was an additional apical ancestor until 2019.

34    It is apparent that the resolutions passed at the authorisation meeting on 30 September 2019 spurred the joinder applicants into making their application for joinder. However, they have provided no adequate explanation as to why they waited so long to do so. Further, there is no adequate explanation as to why they left it so late to provide information to QSNTS about their claims concerning the apical ancestors.

35    In the meantime, the native title applicant and the respondents have expended substantial resources in proceeding towards a consent determination. There are both commercial and non-commercial aspects to the prejudice to these parties. The non-commercial aspects include what will undoubtedly be the disappointment of those who have looked forward to the consent determination, which will be derailed if the joinder applicants are permitted to join at this late stage. The delay of the joinder applicants weighs heavily against their joinder.

36    In any event, it is not apparent that any determination of native title would be affected in any practical way by the issues that the joinder applicants wish to raise concerning the composition of the claim group. The claim group has decided that Mary Indoole Compignie was an ancestor of the Quandamooka People, but the issue which the joinder applicants apparently seeks to raise is whether a person described as her biological or adopted son, George Costello, was Quandamooka. The joinder applicants contend that Mary Indoole Compignie had no descendants. However, George Costello married Emma Ruska, the daughter of another apical ancestor. Therefore, the descendants of George Costello are members of the claim group through at least their descent from Emma Ruska. The composition of the claim group is not affected by the presence or absence of Mary Indoole Compignie as an apical ancestor.

37    The joinder applicants acknowledge that the inclusion of Mary Juno (King) will have no effect on the composition of the claim group, as all her descendants are Quandamooka through alternative lines of descent.

38    I am not satisfied that there is sufficient utility in allowing the joinder applicants to become respondents in order to agitate issues in respect of Mary Indoole Compignie and Mary Juno (King).

39    The joinder applicant claims that there are approximately 50 descendants of William Moreton who are not included as members of the claim group. However, none of those persons has applied for joinder. As I understand it, the joinder applicants do not claim to be descendants of William Moreton. Accordingly, the joinder applicants seek joinder either in order to represent the interests of the descendants of William Moreton, or to dispute the claim group’s determination of its composition.

40    If it is the former, it has been held that respondents cannot act in a representative capacity on behalf of others claiming the same rights or interests: Sumner v State of South Australia [2014] FCA 534 at [14]; Foster on behalf of the Gunggari People #4 v State of Queensland [2019] FCA 1300 at [11]. This recognises the corollary: that an individual indigenous respondent does not have the benefit of any authorisation process: Munn v State of Queensland [2002] FCA 486 at [10]. I am not satisfied that it is appropriate to allow the joinder applicants to represent the interests of persons who have not themselves sought to be joined.

41    If the joinder applicants seek to be joined in order to dispute the claim group’s determination of its own composition, I am not satisfied that this is an appropriate purpose. It has been held that, notwithstanding s 225A of the Act, the composition of the claim group is a matter for intramural determination: Starkey at [55]; Blucher on behalf of the Gaangalu People v State of Queensland [2019] FCA 108 at [12]. It is also relevant, at this late stage of the proceeding, that the State has indicated that it will consent to the determination, including the description of those who are the persons holding the common or group rights comprising the native title. The State has obligations to both indigenous and non-indigenous citizens: Munn (For and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [30]. It may be assumed that the evidence has satisfied the State as to the persons who hold the rights comprising the native title.

42    If it is later established that William Moreton is an apical ancestor of the Quandamooka People, s 13(1) of the Act allows an application to be made to vary an approved determination of native title on the ground that it is in the interests of justice to do so. In the usual case, it is obviously very much more preferable that any potential issues should be sorted out prior to a determination of native title being made. That is not so in the present case, where the issues have been raised at a very late stage, and joinder would result in prejudice to the interests of the parties, as well as delay: Blucher at [19].

Whether a mandatory traditional decision-making process was not complied with

43    The joinder applicants allege that the authorisation of the consent determination and the two ILUAs at the meeting on 30 September 2019 was not valid because a mandatory traditional decision-making process was not complied with.

44    The native title applicant submits that they did not require any specific authorisation from the claim group in order to validly enter into an agreement under s 87 of the Act. They submit that, rather, by s 62A, the applicant may deal with all matters arising under the Act in relation to the application, including consenting to a determination of native title.

45    The joinder applicants concede that the native title applicant was entitled to enter a consent determination without obtaining further authorisation. Accordingly, the meeting on 30 September 2019 was legally unnecessary for the purpose of authorising the consent determination. It follows that any defects in the decision-making process are irrelevant to the proposed consent determination.

46    The native title applicant also submits that the joinder applicants cannot challenge the two ILUAs that were authorised at the meeting by becoming respondents to the native title determination application. There are separate processes provided under the Act for challenging ILUAs. The mechanism for challenging area ILUAs of the kind authorised is by providing information to the Native Title Registrar, which the Registrar is, under s 24CL(4), obliged to take into account in deciding whether to allow registration of the ILUA. If a person with sufficient interest is dissatisfied with the Registrar’s decision, the avenue available to challenge the decision is by way of judicial review.

47    The joinder applicants submit that the native title determination application is so intertwined with the ILUAs that they should be permitted to join so that they can resist the native title determination application. They point out that the consent determination is, in effect, subject to registration of the ILUAs. In my opinion, this provides an inadequate basis for joinder. The relevant clauses in the proposed consent determination are unexceptional. They recognise the possibility that the ILUAs may not achieve registration. By opposing the registration of the ILUAs, the joinder applicants can, in effect, challenge the consent determination. In my opinion, that is the appropriate way for them to proceed. It would not be appropriate to allow joinder of the joinder applicants as a mechanism to allow them to challenge the validity or registration of the ILUAs.

48    The defects in authorisation that are alleged are failing to comply with what is said to be a mandatory decision-making process under s 251A(1)(a) and 251B(a) of the Act. However, the evidence does not go so far as to demonstrate a prima facie case that there is any such mandatory process. The joinder applicants rely upon an anthropological report of Mr Blackwood and Dr Memmott dated 7 September 1998, which describes a traditional process involving family-based decision-making, meetings of elders, and prioritisation of decision-making by people who can speak for particular areas. However, the report does not go so far as to indicate that these are processes that must be complied with in order to make decisions of the type in question. I am not satisfied that the joinder applicants have demonstrated any prima facie case of failing to comply with a mandatory traditional decision-making process.

49    The joinder applicants wish to contend that the notice calling the meeting was deficient in that it failed to inform the claim group of the issues pertaining to the apical ancestors and as to what was required to be determined under s 251A to authorise entry into the ILUAs. It was open to the joinder applicants to raise these issues at the meeting for consideration by the claim group. I am not satisfied that the notice was required to inform the claim group of these matters: cf Boney v Attorney General of New South Wales [2018] FCAFC 218.

The allegation that QYAC placed undue pressure on members of the claim group

50    The joinder applicants wish to raise a claim that information circulated by QYAC, together with the proximity of the consent determination date, placed undue pressure upon the claimants to vote in favour of the resolutions proposed. The allegation is speculative. There has been no evidence of any person who says that they voted in favour of the resolutions because of the undue pressure placed upon them.

The allegation that persons not in the claim group may have voted

51    The joinder applicants also wish to assert that the numbers who attended the 30 September meeting were more than double the numbers who had attended any previous authorisation meeting, and included persons not known to significant numbers of other people in the claim group. The allegation seems to be that persons who were not members of the claim group voted at the authorisation meeting. Again, this is speculative. There is no evidence that any non-members voted. I am not satisfied that the joinder applicants have established a prima facie case in this regard.

Conclusion

52    Having regard to the limited strength of the case proposed to be put forward by the joinder applicants, the lack of utility in allowing them to join in order to pursue their arguments about composition of the claim group, the very late stage at which they have sought to join the proceeding, prejudice to the parties, and the availability of other mechanisms for addressing their concerns, the joinder should not be permitted. I have reached this conclusion by considering the issues raised by the applicants both individually and in combination.

53    I therefore refuse the application for joinder. The application for joinder is dismissed.

Associate:    

Dated:    11 November 2019

SCHEDULE OF PARTIES