FEDERAL COURT OF AUSTRALIA

Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 2) [2020] FCA 946

ORDERS

THE COURT ORDERS THAT:

1.    The application for joinder brought by Krisandra May Tweedie be dismissed.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The principal proceeding seeks a determination of native title in favour of the Gaangalu Nation People in Central Queensland.

2    The application presently before the Court is brought by Krisandra May Tweedie on behalf of the descendants of John William Leisha for joinder as a party to the proceeding.

3    Ms Tweedie’s application has a lengthy procedural history. She filed her application on 7 November 2019. On 8 November 2019, I ordered, inter alia, that Ms Tweedie and the parties file and serve written submissions and that the hearing of the joinder application be set down for 2 March 2020. Ms Tweedie did not comply with the order to file and serve submissions.

4    On 20 February 2020, Ms Tweedie wrote to the Court seeking an adjournment of the hearing on the basis that her uncle had passed away and that she had “Sorry business”. With the consent of the parties, the hearing was adjourned to 21 April 2020.

5    On 21 April 2020, Ms Tweedie wrote to the Court asking for a further adjournment on the basis that two of her grandchildren were missing. With the consent of the parties, I adjourned the hearing to 21 May 2020, and also ordered that Ms Tweedie file and serve written submissions by 5 May 2020. She did not comply with that order.

6    On 20 May 2020, Ms Tweedie wrote to the Court seeking an adjournment on the basis that she was looking after her grandchildren, who were away from school due to the pandemic, and that her sister-in-law and great uncle had passed away. She appeared by telephone on 21 May 2020 and added that she intended to consult a lawyer. The application for an adjournment was opposed by the native title applicant. However, I granted an adjournment to 26 June 2020. I also made guillotine orders requiring Ms Tweedie to file and serve written submissions.

7    Although Ms Tweedie did not file written submissions by the required date, she did file her own affidavit and affidavits of her sisters, Shirmona Reiza Leisha and Ronica Gail Ianna. I will treat those affidavits as being written submissions complying with my order of 21 May 2020.

8    On the morning of the hearing on 26 June 2020, Ms Tweedie sent a medical certificate dated 23 June 2020 to the Court. The certificate stated that Ms Tweedie is the sole carer for five children, four of whom were sick at home with respiratory symptoms. The certificate said that Ms Tweedie’s husband and adult son were also unwell with respiratory symptoms, and that she was also their carer. The certificate said that Ms Tweedie would be unable to attend Court for the hearing. The certificate did not say whether she would be able to attend by video or telephone. In any event, Ms Tweedie did not attend the hearing.

9    I am sympathetic to Ms Tweedie’s travails, but the interests of the parties to the litigation must also be taken into account. If Ms Tweedie is to be joined, a number of steps in the litigation which are the subject of programming orders will be affected. The parties are proceeding in a state of uncertainty until the application for joinder is determined. Further, the parties have incurred costs in preparing for and appearing at several hearings which have been adjourned at the last moment at Ms Tweedie’s request. It is important for the application for joinder to be heard and determined without further delay and without further expense to the parties.

10    As Ms Tweedie has not been able to proceed with any of the hearings that have been set down so far, whether via the Microsoft Teams application or by telephone, it appears unlikely that she will be able to do so within a reasonable time in the future. Accordingly, on 26 June 2020, I decided that the interests of justice would be best served by deciding the application for joinder on the papers. I ordered that Ms Tweedie file and serve any further submissions by 1 July 2020 and that the application be decided on the papers. Ms Tweedie has not filed any further submissions, although she has filed a further affidavit of her own, and an affidavit of her sister, Michelle Leisha.

11    Ms Tweedie’s affidavits describe her descent from Maggie of Dingo and matters she was taught by her father about their culture and traditions and their connection with the claim area. She then sets out her reasons for wanting to become a party to the native title determination application, which appear to be:

(1)    an asserted lack of consultation by the native title applicant;

(2)    fear that the native title applicant may agree to resolve the determination application on an unsatisfactory basis;

(3)    a lack of access to financial benefits that have come to the claim group as a result of the making of the native title determination application;

(4)    the use of the word “Gaangalu” rather than “Ghungalu” to describe the claim group.

12    The affidavits of Ms Shirmona Leisha, Ms Ianna and Ms Michelle Leisha describe their childhoods, their cultural learnings and their connection to the claim area.

13    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.

14    It is necessary to consider:

(1)    whether the applicant for joinder has 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 applicant to be joined as a party.

15    Ms Tweedie and her siblings are the children of John William Leisha. It is not in dispute that John William Leisha and his descendants are the biological descendants of Maggie of Dingo, who is one of the persons named as an apical ancestor of the Gaangalu Nation People in the native title determination application. As the claim group is defined by biological descent, Ms Tweedie and her siblings are members of the claim group.

16    I accept that, as members of the claim group, the interests of Ms Tweedie and her siblings will be affected by a determination of native title. That is a relevant interest for the purposes of s 84(5) of the NTA: see Starkey v State of South Australia [2011] FCA 456 at [61].

17    It is necessary to consider whether the interests of justice favour the joinder of Ms Tweedie and her siblings as parties. In Anderson on behalf of the Quandamooka People (Mulgumpin/Moreton Island Claim) v State of Queensland [2019] FCA 1886, I held at [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.

18    Ms Tweedie’s concerns about the native title applicant’s conduct of the determination application and ancillary issues fall for resolution within the claim group. The legal solution provided by the NTA for dissatisfied members of the claim group is the mechanism described in s 66B, namely obtaining the authorisation of the whole claim group for replacement of the applicant. Apart from questions of authorisation, disputes between members of the claim group do not generally fall to be determined by the Court. I do not accept that the dissatisfaction of Ms Tweedie and her family group with the conduct of the native title applicant provides an adequate basis to allow her joinder.

19    I should add that Ms Tweedie’s application for joinder as a representative of her family group raises other potential difficulties, which it is not presently necessary to consider.

20    A complaint that the interests of some family groups are being preferred over others is not unfamiliar in applications of this kind. It should go without saying that the applicant has responsibilities towards the claim group as a whole and not merely towards particular sections of the group. I would encourage the native title applicant and Ms Tweedie and her siblings to attempt to resolve their differences within the claim group, rather than distracting from their common goal of achieving a determination of native title.

21    The application for joinder will be dismissed.

Associate:    

Dated:    9 July 2020

SCHEDULE OF PARTIES