Federal Court of Australia

Fourmile on behalf of the Gimuy Walubara Yidinji People v State of Queensland [2021] FCA 1576

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 84(8) of the Native Title Act 1993 (Cth), the respondents Sarah Addo, Charles Kornell Addo, Sam Addo and Bernice Carole Dwyer are removed as parties to the proceeding.

2.    There be a further case management hearing on a date to be fixed by a Registrar of the Court.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    This native title determination application relates to an area of land and waters in the vicinity of Cairns in northern Queensland. It is brought on behalf of the Gimuy Walubara Yidinji People and will be referred to as the GWY Claim.

2    The respondents to the claim include four Aboriginal persons, Ms Sarah Addo, Mr Charles Kornell Addo, Mr Sam Addo and Ms Bernice Carole Dwyer (together, the Aboriginal respondents).

3    By an interlocutory application dated 19 July 2021, the applicant seeks an order pursuant to s 84(8) of the Native Title Act 1993 (Cth) (NT Act) removing the Aboriginal respondents as parties. The interlocutory application should be allowed for the reasons given below.

BACKGROUND

4    The GWY Claim is one of a number of overlapping claims that have been made in relation to land and waters in and around Cairns. The other claims are as follows:

(1)    a claim on behalf of the Kunggandji Gurrabuna People in action QUD21/2019 (KGP Claim);

(2)    a claim on behalf of the Cairns Regional Claim Group in action QUD692/2016 (CRC Claim); and

(3)    two claims on behalf of the Yirrganydji Peoples in actions QUD14/2019 and QUD337/2015 (Yirrganydji Claims).

5    This proceeding and the above claims will collectively be referred to as the Cairns Proceedings.

6    The Court has today made two orders that together have the effect of dismissing the whole of the KGP Claim. Reasons for those orders are published as Martens on behalf of the Kunggandji Gurrabuna People of Kamoi (Kimoi or Kimuy) [2021] FCA 1577.

7    Each of the Aboriginal respondents was a member of the claim group in the KGP Claim. Mr Sam Addo was also one of the three persons who comprised the applicant in that proceeding.

8    Before proceeding further it is necessary to repeat some of the history set out in Martens and two earlier judgments of the Court concerning the Cairns Proceedings. By way of a broad summary:

(1)    A mediation concerning the Cairns Proceedings resulted in the applicant in each proceeding as well as the Aboriginal respondents executing an agreement titled “Protocol Deed”.

(2)    In accordance with the terms of the Protocol Deed, the applicants and the Aboriginal respondents approached the Court for orders by consent to the effect that critical factual questions bearing on the outcome of the Cairns Proceedings be referred to referees for inquiry pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) and r 28.61 of the Federal Court Rules 2011 (Cth). The referred questions included the question of which Aboriginal group or groups possessed native title rights and interests in a defined area in and around Cairns (referred to as the Study Area) at sovereignty.

(3)    The land and waters affected by this proceeding fall entirely within the Study Area. The area subject to the KGP Claim overlapped the whole of the Study Area, and also included a large expanse of the sea extending to the 200 nautical mile limit.

(4)    The Protocol Deed was personally executed by each of the Aboriginal respondents, including in their capacity as respondents in this proceeding.

(5)    By clause 3 of the Protocol Deed, the parties agreed:

3.    Use of the Final Report

3.1    The Parties agree to be bound by the findings of the referees’ report such that:

(a)    each of them will discontinue their claims to native title (or withdraw any assertions of native title) that are inconsistent with those findings;

(b)    each of the Applicants will amend the claim boundary of their native title determination applications to remove any territorial claim that is inconsistent with those findings;

(c)    no party will oppose any application by any other party to amend their respective determination application/s consistently with those findings; and

(d)    no party will object to a determination of native title in terms that are substantially consistent with those findings.

(6)    The Aboriginal respondents were afforded the opportunity to participate in the referees’ 1nquiry and were legally represented for that purpose. The interest asserted by them aligned with that asserted by the applicant in the KGP Claim, namely the possession of native title rights and interests in the Study Area by a process of descent from named apical ancestors.

(7)    On 6 March 2020, the referees delivered a Report to the Court in which they expressed the opinion that none of the apical ancestors referred to in the KGP Claim possessed native title rights and interests in the Study Area at sovereignty.

(8)    Following a contested hearing, on 1 April 2021 the Court made an order under r 28.67 of the Rules adopting the Report:  Singleton on behalf of the Yirrganydji Peoples v State of Queensland [2021] FCA 316. The effect of the Court’s order is to adopt the conclusions of the referees in the final resolution of substantive questions of fact:  Singleton at [104] and [173]. As a consequence of that order, the KGP Claim became factually untenable, at least to the extent that the claim in that proceeding covered the Study Area.

(9)    On 3 November 2021, the Court dismissed the Yirrganydji Claims to the extent that the claim areas in each of those proceedings were inconsistent with the referees’ findings (as adopted by the Court):  Singleton on behalf of the Yirrganydji Peoples v State of Queensland (No 2) [2021] FCA 1350.

(10)    Following the adoption of the Report, the Aboriginal respondents have each filed affidavits in proceeding QUD 21/2019 identifying the nature of the interests they presently assert in the land and waters subject to the GWY Claim. The affidavits have been treated as having been filed in this proceeding and have been read on the interlocutory application.

(11)    In Martens the Court dismissed the whole of the KGP Claim:

(a)    pursuant to r 28.67(1)(e) of the Rules insofar as the land and waters covered by the KGP Claim overlapped the Study Area; and

(b)    otherwise pursuant to s 190F(6) of the NT Act.

Submissions and affidavits

9    Ms Sarah Addo (a non-lawyer) represents herself in this proceeding. The Court has granted the remaining three Aboriginal respondents leave to be represented by Ms Addo in accordance with s 85 of the NT Act.

10    The hearing of this interlocutory application was conducted at the same time as the hearing of the interlocutory applications resulting in the orders in Martens dismissing the KGP Claim. Ms Addo also represented the applicant in the KGP Claim in respect of that issue. As explained in Martens, Ms Addo’s submissions were to the effect that the Aboriginal respondents do not accept that the factual findings of the referees (as adopted by the Court) are correct. Ms Addo submitted that the Court should reconsider its order adopting the Report.

11    Consistent with those submissions, the affidavits filed by each of the Aboriginal respondents confirm that they continue to assert rights and interests as native title holders in relation to the land and waters to which the GWY Claim relates. Their affidavits contain no acknowledgement of the legal effect of the Court’s adoption of the Report. Nor do they acknowledge their obligations under clauses 3(a) and (d) of the Protocol Deed to withdraw assertions of native title that are inconsistent with the referees’ findings and to not object to a determination of native title in terms that are substantially consistent with those findings.

Consideration

12    The Aboriginal respondents became parties to this proceeding on the basis that they claimed to be “affected persons” within the meaning of s 84(3) of the NT Act. They each claimed to be native title holders in relation to land or waters covered by the application and they each notified the Court that they wanted to be a party within the statutory time limit:  NT Act, s 84(3)(a) and (b) respectively.

13    The Court may at any time order that a person cease to be party:  NT Act, s 84(8). The Court is to consider making an order under subs (8) in respect of a person if the Court is satisfied that the person never had, or no longer has, interests that may be affected by a determination in the proceeding:  NT Act, s 84(9). The power in s 84(8) is not confined to the particular circumstances in s 84(9):  Butterworth v Queensland (2010) 184 FCR 397 (at [39]); Starkey v South Australia (2011) 193 FCR 450 (at [42] – [43]).

14    In considering the exercise of the discretion under s 84(8) of the NT Act, the Court may have regard to the considerations identified as relevant by Gilmour J in Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 5) [2014] FCA 650 (at [10]) as summarised by McKerracher J in CD (deceased) v State of Western Australia [2021] FCA 734 (at [18]), namely:

(a)    the legislative purpose behind the NTA which is to encourage parties to resolve native title claims by conciliation and negotiation;

(b)    the provisions of s 37M of the Federal Court of Australia Act 1976 (Cth) and the overarching purpose mandate the just determination of proceedings before the Court in the most inexpensive and efficient way possible;

(c)    the proximity of the parties to reaching a negotiated, non-litigated settlement and consent determination; and

(d)    the additional time, money and other resources (including scarce judicial resources) which will need to be expended before a final outcome can be reached if removal of the party is not ordered.

15    The reasons in Martens explain at some length why Ms Addo’s submissions in connection with the dismissal of the KGP Claim were rejected. The reasons emphasise the importance of the issues arising in the Cairns Proceedings to the Aboriginal people affected by the resolution of the disputes between the various claim groups. They emphasise that the procedure adopted by the Court in referring critical questions to the referees was a procedure agreed to be followed by the Aboriginal parties themselves. The reasons expressed in Martens at [26] – [42] apply equally to the present interlocutory application and should be understood as forming a part of the reason why orders removing the Aboriginal respondents as parties should now be made.

16    I am satisfied that the native title rights and interests asserted by the Aboriginal respondents in connection with the Study Area (and hence in the area to which this proceeding relates) can no longer be factually maintained. I am satisfied that if they are not removed as parties, the Aboriginal respondents will persist with contentions that are inconsistent with the Court’s adoption of the Report. Their conduct in that respect will affect the orderly resolution of the remaining issues to be decided in this proceeding.

17    I am also satisfied that the continued status of the Aboriginal respondents as parties to this proceeding constitutes unjustifiable oppression to the applicant in the GWY Claim. The applicant participated in the referral process with the consent of the Aboriginal respondents. It has compromised its own claim in accordance with its obligations under the Protocol Deed, notwithstanding the disappointment of members of the claim group with the referees’ conclusions that were not entirely favourable to the claim group in this action. The progression of this claim to a resolution should not be hindered by the defence of respondents whose claimed interest in the land and waters can no longer be maintained.

Associate:

Dated:    16 December 2021

SCHEDULE OF PARTIES