Federal Court of Australia

McCarthy on behalf of the Yuggera Ugarapul Applicant v State of Queensland [2020] FCA 1448

ORDERS

THE COURT ORDERS THAT:

1.    Queensland South Native Title Services Limited be joined as a respondent party under s 84(5) of the Native Title Act 1993 (Cth).

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    Queensland South Native Title Services Limited (QSNTS) is recognised under s 203FE of the Native Title Act 1993 (Cth) (the NTA) as a Native Title Service Provider. In that capacity, it performs all the functions of a representative Aboriginal/Torres Strait Islander body under Part 11 of the NTA. Its geographic area of responsibility covers the southern half of Queensland, extending from the Queensland/New South Wales border. It has applied under s 84(5) of the NTA to become a respondent party in this proceeding, a native title determination application made by the authorised applicant of the Yuggera Ugarapul People (the Yuggera Ugarapul Applicant).

2    QSNTS’ application is consented to, or not opposed, by all the existing parties to the proceeding, including the Yuggera Ugarapul Applicant. However, the State of Queensland, the first respondent, sought to have the following condition imposed on its joinder:

1.    In this order:

(a)    “QSNTS” means Queensland South Native Title Services Limited;

(b)    “QSNTS Material” means:

(i)    the expert reports QSNTS has engaged Dr Anthony Redmond and Dr Kevin Mayo to prepare for the Yuggera Ugarapul People claimant application; and

(ii)    the lay witness evidence QSNTS will prepare for the Yuggera Ugarapul People claimant application.

2.    QSNTS be joined as a respondent party to these proceedings pursuant to section 84(5) of the Native Title Act 1993 (Cth) upon the condition that on or before 11 December 2020, QSNTS file the QSNTS Material or any part not adopted by the Claim Group.

3    For the reasons that follow, I consider it is in the interests of justice to permit QSNTS to be joined as a party to the proceeding without imposing this condition.

THE FACTUAL BACKGROUND

4    Before explaining why I have reached that conclusion, it is convenient to describe the relevant factual background to QSNTS’ application. As already mentioned, this proceeding is a native title determination application filed by the Yuggera Ugarapul Applicant on behalf of the Yuggera Ugarapul People. It was filed in April 2017. It covers a large claim area extending broadly west and south of the City of Brisbane in South-East Queensland. It includes the cities of Ipswich in the east, and Toowoomba in the west. In the north, it extends to a point just south of the town of Esk, and in the south it extends to the Queensland/New South Wales border at a point south-west of the town of Boonah.

5    In August 2018, orders were made requiring the Yuggera Ugarapul Applicant to, by 13 September 2019, serve its connection materials on the State and any other interested respondent parties to the proceeding.

6    As a result of an internal dispute that arose within the Yuggera Ugarapul claim group and a series of changes to the Yuggera Ugarapul Applicant’s legal representation, this time limit was not met. Consequently, it has been extended twice. First, in November 2019 to 31 July 2020, and again, in July 2020 to 30 November 2020.

7    Mr Kevin Smith, the Chief Executive Officer of QSNTS, has made two affidavits in support of QSNTS’ application. In the first of those affidavits, he described a research project called the South East Regional Research Project (SERRP) which forms the main basis for it seeking to become a party in this proceeding. In that affidavit, Mr Smith described the background to that project in the following terms:

10.    Pursuant to QSNTS’s functions under section 203BJ(b) NTA, QSNTS has been actively engaged in researching who are the ‘right people for country’ in several areas within the region for which it is the [Native Title Service Provider].

11.    One of QSNTS’ current research projects is the South East Regional Research Project (SERRP). The SERRP area covers from near Dayboro and Esk in the north, south to the New South Wales border, west to Stanthorpe, Texas and Inglewood incorporating places inland such as Clifton, Warwick, Boonah, Beaudesert and Ipswich, including the area subject to the Yuggera Ugarapul [Native Title Determination Application] amongst others.

12.    The aim of the SERRP is to conduct sufficient regional historical, anthropological and genealogical research to determine the extent of country to which Aboriginal people have maintained traditional connection, traditional boundaries between groups and the different levels of society that existed at sovereignty and continue to exist in the region. This project is ongoing and will provide an evidence based broad, objective and regional picture of where native title rights and interests may still exist in the area and the identity of the people who may hold those rights and interests.

13.    Based on the research commissioned by QSNTS, QSNTS considers that the current Claim Group description adopted by the Applicant for the Yuggera Ugarapul [Native Title Determination Application], does not accurately describe the people who are likely to have held and to have passed on to their descendants, native title rights and interests in the claim area and should be amended.

14.    The SERRP research indicates that there are additional Aboriginal people who were traditionally associated with the Yuggera Ugarapul [Native Title Determination Application] claim area who are not included in the current claim group description and whose descendants may hold native title rights in the claim area.

15.    The SERRP research is also relevant to the Jagera Yagara Gurrangnam People’s Native Title Determination Application (QUD675/2019) (“Jagera NTDA”). The SERRP includes research into the apical ancestors relied upon in the description of the Jagera claim group. The SERRP findings will be relevant to any inquiry into or findings as to the identity of those who hold rights and interests in the Yuggera Ugarapul and Jagera NTDA claim areas.

8    In his second affidavit, Mr Smith provided further information about the “expert material” that QSNTS was gathering as a part of the SERRP project, as follows:

3.    Pursuant to QSNTS’s functions under s 203BJ (b) [sic] Native Title Act 1993 (Cth) [sic] (NTA), in the Yuggera Ugarapul People’s native title determination application, QUD213/2017 (Yuggera Ugarapul NTDA) claim area, QSNTS has:

(a)    been actively engaged in researching who are the ‘right people for country’; and

(b)    to further QSNTS’s research, engaged experts, Dr Anthony Redmond and Dr Kevin Mayo to prepare an anthropological report and genealogical report respectively (Expert Material).

4.    The Expert Material is also relevant to the Jagera Yagara Gurrangnam People’s Native Title Determination Application (QUD675/2019) (Jagera NTDA), which overlaps the Yuggera Ugarapul NTDA.

5.    The preliminary findings of the Expert Material indicate that there are a number of Aboriginal people who may hold native title in the Yuggera Ugarapul NTDA claim area who are not members of the Yuggera Ugarapul NTDA claim group.

6.    One of the people identified in material previously commissioned by QSNTS has approached QSNTS to provide legal representation, pursuant to its facilitation and assistance functions under s 203BB (1) (b) [sic] of the NTA, seeking assistance to become a respondent party to the Yuggera Ugarapul NTDA and also seeking the appointment of a private lawyer and an anthropologist to support that position.

7.    Whilst QSNTS is not providing any facilitation and assistance functions under s 203BC (3) (a) [sic] of the NTA in these proceedings, QSNTS considers that the principles under this section of acting in an orderly, efficient and cost-effective way is relevant to the way in which QSNTS conducts its business generally.

(Emphasis in original)

9    I interpose to note that this is by no means the first occasion on which QSNTS has relied on the SERRP project to seek to intervene in native title determination application proceedings over areas of land and waters in South-East Queensland (see Sandy on behalf of the Yugara People v State of Queensland (2017) 254 FCR 107; [2017] FCAFC 108 at [245]-[250]).

THE RELEVANT PRINCIPLES

10    The principles bearing on an application of this kind are well-established. They were outlined most recently in Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 4) [2020] FCA 1046 at [3]. In summary, QSNTS must establish all of the following three matters:

(a)    that it has an interest for the purposes of s 84(5) of the NTA;

(b)    that the interest it holds may be affected by a determination of native title in the proceeding; and

(c)    that it is in the interests of justice that it to be joined as a party to the proceeding.

11    In the context of an application by a native title representative body, such as QSNTS, the first two matters were discussed in a decision concerning an application brought by QSNTS itself (see Edwards on behalf of the Wongkumara People v State of Queensland [2014] FCA 282 (Edwards)), where it was said (at [16]):

There can be little doubt that [QSNTS], as the relevant representative body for at least a significant part of the Wongkumara claim area, has a sufficient interest that may be affected by a determination in the proceedings to meet the first two elements identified above. There are numerous judgments of this Court to that effect: see Simms v Minister for Land and Water Conservation (NSW) (2002) 193 ALR 257; [2002] FCA 15 at [24]; Bissett v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365 (Bissett) at [22]–[25]; Gale v New South Wales Minister for Land & Water Conservation [2002] FCA 972 at [5]; Woodridge v Minister for Land and Water Conservation (NSW) (2002) 122 FCR 190; [2002] FCA 1109 at [15]; Connelly on behalf of the Mitakoodi and Mayi People #1 v State of Queensland [2009] FCA 1181 at [3]; and MT (deceased) v State of Western Australia [2013] FCA 1302 at [56] (MT). Indeed, so much is apparently accepted by the Wongkumara applicant, because it opposed the [QSNTS] application solely on discretionary grounds, that is, the third element identified in Far West Coast above.

12    Applying these observations to this application, and given the contents of Mr Smith’s affidavits outlined earlier, QSNTS has clearly established the first two matters above. Accordingly, this application essentially reduces to the third matter, and more particularly, whether it is in the interests of justice to impose the proposed condition on QSNTS’ joinder as a party.

CONTENTIONS

13    The State submitted that it was evident from Mr Smith’s two affidavits that there exists a potential for conflict as between the applicant and QSNTS in relation to the connection issues that arise in the proceeding. The potential for that conflict arose, so it contended, from Mr Smith’s view that the Yuggera Ugarapul claim group description may not be correct in that there may be other people who may hold native title rights and interests in the area and who ought to be properly included in it. The State’s concern was that, if the Yuggera Ugarapul Applicant did not adopt the QSNTS material, or only adopted it in part, that would affect its capacity to properly consider the connection issues in this proceeding. It claimed that this concern was heightened by the continuing failures on the part of the Yuggera Ugarapul Applicant to serve its connection materials in accordance with the Court’s orders.

14    The Yuggera Ugarapul Applicant began by pointing out that it had not yet been provided with the QSNTS material. Accordingly, it contended that it should be given an opportunity to consider that material and to decide whether it wished to adopt it, in whole, or in part. Until that had occurred, it contended, it would be premature and unfair to the Yuggera Ugarapul Applicant to require any of the material to be provided to the State, or the other respondents.

15    QSNTS adopted essentially the same position as the Yuggera Ugarapul Applicant. Importantly, it also added that it was not yet known whether the material it was gathering may be of a confidential, or personal, nature or may need to be covered by appropriate gender-related restrictions. In those circumstances, it contended it would be inappropriate to require the material to be provided to the respondents without consideration first being given to appropriate orders addressing such issues. It contended that the time for considering those issues would arise once the material was produced and first made available to the Yuggera Ugarapul Applicant.

CONSIDERATION

16    The State’s main concern relates to the potential for a conflict to arise between the Yuggera Ugarapul Applicant and QSNTS with respect to the composition of the Yuggera Ugarapul claim group and the consequences that will have for its consideration of the connection materials in this proceeding. However, my difficulty with that concern is that, at least at this stage, no such conflict exists, evidenced by the fact that the Yuggera Ugarapul Applicant consents to QSNTS’ joinder as a party and opposes the State’s proposed condition being imposed.

17    The situation in this application is, therefore, quite different to the one that arose in one of the two cases (see Edwards at [21]-[22]) where an application for joinder by a native title representative body has been unsuccessful (see Kooma People v State of Queensland [2002] FCA 86 (Kooma)). In Kooma, Drummond J decided that a predecessor body to QSNTS, known as the Queensland South Representative Body Aboriginal Corporation, should not be joined as a respondent party because, among other things, it wished “to be joined in order to align itself with but one faction within the claimant group” (see at [21]).

18    Moreover, even assuming there is a real possibility of the feared conflict arising in this matter, I fail to see how imposing the proposed condition would act to avoid it, much less deal with the issues that usually need to be addressed if it were to occur (see, for example, Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) [2019] FCA 2115).

19    Instead, I consider there is greater reason to be concerned about the matters raised by both the Yuggera Ugarapul Applicant and QSNTS about the possibility that the expert materials may contain confidential, personal, or culturally sensitive information, the disclosure of which will need to be addressed by appropriate orders. Imposing the proposed condition before those materials are available and have been assessed for that purpose would essentially foreclose on the opportunity to make such orders. It follows, in my view, that the most appropriate time to consider whether to impose any conditions on the use that is to be made of the expert materials is once they have been produced and duly considered by QSNTS and the Yuggera Ugarapul Applicant.

DISPOSITION

20    For these reasons, I consider it is in the interests of justice that QSNTS be joined as a respondent party in this proceeding, but without imposing the proposed condition. Accordingly, the orders will be:

1.    Queensland South Native Title Services Limited be joined as a respondent party under s 84(5) of the Native Title Act 1993 (Cth).

Associate:    

Dated:    8 October 2020

SCHEDULE OF PARTIES