FEDERAL COURT OF AUSTRALIA

Kum Sing on behalf of the Mitakoodi People # 5 v State of Queensland (No 2) [2022] FCA 248

ORDERS

THE COURT ORDERS THAT:

1.    The application by Melita Dawn Dolan to be joined as a respondent to the proceeding is granted.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The native title claimant application on behalf of the Mitakoodi People (the Mitakoodi People Claim) was filed on 9 July 2015 and registered between 25 September 2015 on 8 November 2019, and again from 21 February 2020 to the present. The native title applicant is constituted by Tanya Kum Sing, Pearl Connelly, Kay Douglas, Norman Douglas, Ronald Major, and Edward Ah Sam (the native title applicant).

2    By an interlocutory application filed on 11 November 2021, Melita Dawn Dolan sought orders that she be joined as a respondent to the native title claim pursuant to s 84(5) of the Native Title Act 1993 (Cth) (NTA). Ms Dolan submitted that she has interests that may be affected by a native title determination and that it would be in the interests of justice to join her given the in rem nature of the proceeding. Specifically, Ms Dolan claims to be a Mitakoodi person holding native title rights and interests within the claim area the subject of the Mitakoodi People Claim (the claim area) through descent.

3    The parties were agreed that the interlocutory application be decided on the papers as reflected in the orders made on 2 December 2021, which also set a timetable for the filing of submissions and evidence by the parties. Those orders further provide that if Ms Dolan should be joined as a respondent to the proceeding, the issues between her and the native title applicant will be referred to mediation before the National Judicial Registrar.

4    On 24 February 2022, I made orders granting the application by Ms Dolan to be joined as a respondent with no order as to costs. These are my reasons for allowing that application. In reaching this decision, it is important to emphasise that it was necessary for Ms Dolan to establish only a prima facie native title right or interest in the claim area. Effectively, in other words, on the face of the material before the Court, she has an arguable claim.

5    Finally, I note that on 9 March 2022, I also made an order extending the time for filing any application for leave to appeal from my orders of 24 February 2022 to 14 days after the date on which my written reasons for making those orders are published pursuant to rule 35.13(b) of the Federal Court Rules 2011 (Cth).

2.    EVIDENCE

6    Ms Dolan relied upon the following affidavit evidence:

(1)    the affidavit of Melita Dawn Dolan filed 11 November 2021 (Dolan affidavit), excluding:

(a)    the first and fourth sentences of paragraph 66; and

(b)    the first sentence of paragraph 68 to the extent that it conveys that Ms Dolan was denied entry to the Mitakoodi People claim group meeting held on 6 July 2019; and

(2)    the affidavit of Andrew Robert Rayner, anthropologist, filed 10 November 2021 (Rayner affidavit).

7    In response to the application for joinder, the native title applicant relied upon the following affidavit evidence:

(a)    the affidavit of Colin Stanley Hardie filed 16 December 2021 (Hardie affidavit);

(b)    the affidavit of Edward Ah Sam filed 16 December 2021 (Ah Sam affidavit); and

(c)    the affidavit of Tanya Kum Sing filed 16 December 2021 (Kum Sing affidavit).

8    Subject to the caveats referred to at [6] above, the affidavits were taken as read on the application for joinder.

3.    BACKGROUND

9    The Mitakoodi People Claim covers land and waters in north-west Queensland taking in Cloncurry from just west of that town and eastward towards, but not including, Julia Creek. The claim extends northerly from the Selwyn Range along the Cloncurry, McKinlay, Fullarton, Gilliat, Williams and Flinders Rivers, to just south of the town of Wondoola.

10    The native title claim group is described in schedule A to the second additional further amended claimant application made on behalf of the Mitakoodi People, which was filed on 15 January 2020 (the current claimant application) as follows:

The [native title] claim group on whose behalf this application is made is the Mitakoodi People.

The Mitakoodi people are aboriginal people who:

1.    Principally identify as Mitakoodi people and as belonging to the traditional country of their Mitakoodi forebears;

2.    Are recognised by other Mitakoodi people as a biological descendants of deceased Mitakoodi people; and

3.    Are the descendants of the following deceased aboriginal people: Minnie; Thomas ‘Tiger’ Mitchell; Dinah; Topsy and Sophie.

(Annexure TK1, Kum Sing affidavit at p. 9.)

11    Ms Dolan sought to be joined on the basis of her claim to be a Mitakoodi person who holds native title rights and interests within the area of the Mitakoodi People Claim through descent from an ancestor, Billy Chisholm. The description of the native title claim group in the current claimant application does not include Billy Chisholm as an apical ancestor. Nor was it in issue that no other ancestor of Ms Dolan is included as an apical ancestor in the current claimant application, as Mr Rayner concluded based upon his research. As such, as Ms Dolan submitted, she is excluded from membership of the claim group as it is presently defined.

4.    THE CLAIM FOR JOINDER SHOULD BE ALLOWED

4.1    Relevant principles

12    Section 84(5) of the NTA provides for any person to be joined to a native title application notwithstanding that the person failed to notify the Federal Court that she or he wished to be a party to the proceeding within the period specified in the notice of the native title application by the Native Title Registrar under s 66(10)(c) of the NTA. Section 84(5) provides that:

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.

13    With respect to the construction of s 84(5), first, the phrase “interests [which] may be affected” in s 84(5) has been broadly construed and extends to a person who claims to hold native title in the claim area and is not a member of the claimant group. As Greenwood J in Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310 (the Wuthathi People’s case) explained:

14. … The notion of “interests” for the purposes of s 84(5) is a broad conception, not confined to the statutory understanding of the term “interest” in s 253 as that term applies to land or waters. The interests asserted by an applicant for joinder need not be proprietary, legal or equitable in nature; must rise above an interest that an ordinary member of the public might hold; must be genuine; must reflect an effect upon the person's interests beyond a mere emotional, conscientious or intellectual interest; and must not lack substance: Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1; Woodridge on behalf of the Gomilaroi People v Minister for Land & Water Conservation for New South Wales (2003) 108 FCR 527; Dann (on behalf of the Amangu People) v Western Australia [2006] FCA 1249.

15. Apart from these principles, it is well accepted that a person who claims to hold a native title right or interest in relation to the land or waters the subject of a Determination Application, has a sufficient interest for the purposes of s 84(5), on the footing that a final determination of the claimant application will, plainly enough, affect the interests of any person who asserts an interest in the relevant land or waters as the determination operates by force of s 225 of the Act as a judgment in rem, or at least “in a sense” operates as a determination in rem (Munn (for and on behalf of the Gunggari People) v State of Queensland [2002] FCA 486 at [7] and [8]): Kokatha Native Title Claim v South Australia (2005) 143 FCR 444; at [22], [24] and [25]; Holborow v State of Western Australia [2009] FCA 1200 at [4] and [5] and Munn at [7] and [8]. By force of s 68 of the Act, there can only be one approved determination of native title in relation to a particular area.

14    Secondly, as the native title applicant submitted, it is not necessary for a native title determination application to have been made by the person seeking to be joined as a respondent: Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369 (Gaangalu Nation People) at [21(1)] (Rangiah J). In this regard, as Rangiah J explained in Gaangalu Nation People (at [21(2)]–[21(3)]:

A member of another native title group cannot be joined as a respondent for the purpose of acting as a representative to assert native title rights on behalf of the other group. That is because the combined effect of ss 13, 61, 213 and 225 is that an application for a determination of native title can only be made by a duly authorised applicant using the procedures in Pt 3 of the NTA.

A member of another native title group may be joined as a respondent for the purpose of “defensively asserting” native title rights and interests. Such a person is only permitted to pursue a personal claim to such rights and interests: that is, to protect them from erosion, dilution or discount.

[See Munn v State of Queensland [2002] FCA 486 at [8]; Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 at [22], [24]–[25]; Worimi Local Aboriginal Land Council v Minister for Lands (NSW) (2007) 164 FCR 181 at [10]–[11], [26]; Commonwealth v Clifton (2007) 164 FCR 355 at [48], [57]–[58] and [61]; Moses v Western Australia (2007) 160 FCR 148 at [18]; Holborow v State of Western Australia [2009] FCA 1200 at [4]–[5]; Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [15]–[21]; Lander v State of South Australia [2016] FCA 307 at [73]; A.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 2) [2013] FCA 1000 at [56]–[57]; Turrbal People at [18]–[19].]

15    For example, in Kokatha Native Title Claim v South Australia [2005] FCA 836; (2005) 143 FCR 544, Mansfield J held that three individuals who sought joinder as respondent parties to the Kokatha native title claim should not be precluded from putting forward their claim for communal native title rights and interests in a defensive attempt to avoid the dilution of their interests even though there was no native title application by their native title group over the claim area: ibid at [24]–[25] (Mansfield J).

16    Thirdly, it is not necessary or appropriate for the Court on the hearing of the joinder application to determine whether Ms Dolan’s claim that she is Mitakoodi by descent is established. As I emphasised at the outset, her interest must be established on a prima face basis only: Wakka Wakka People #2 v State of Queensland [2005] FCA 1578 (Wakka Wakka People) at [6] (Kiefel J (as her Honour then was)); Gaangalu Nation People at [20] (Rangiah J).

17    Fourthly, it is necessary for the joinder applicant also to demonstrate that it is in the interests of justice to allow the application for joinder. In this regard, as Ms Dolan accepted, factors such as delay, the explanation (if any) for the delay, prejudice to the native title applicant, and whether the applicant for joinder has properly particularised their interest are relevant: Wakka Wakka People at [7]; see also e.g. Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) [2019] FCA 2115 at [21] and [22]–[24] (Reeves J). Furthermore, in assessing where the interests of justice lie, regard should be had, among other things, to the objects and purposes of the NTA and the overarching purpose of civil practice and procedure expressed in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). The latter includes the just determination of disputes efficiently, in a timely manner, and at a cost that is proportionate to the importance and complexity of the matters in dispute.

18    Fifthly, I agree with Rangiah J in Gaangalu Nation People at [18] that the amendment in 2007 to include the requirement that it be in the interests of justice to join the person has the consequence that “[o]nce the Court decides whether it is satisfied that the person’s interests may be affected by a determination and whether it is satisfied that it is in the interests of justice that the person be joined, there is no residual discretion to exercise”.

19    Finally, joinder can be made subject to conditions: Gamogab v Akiba [2007] FCAFC 74; (2007) 159 FCR 578 at [63] (Gyles J (Sundberg J agreeing)).

4.2    Ms Dolan has a relevant interest

20    In my view, the evidence relied upon by Ms Dolan clearly met the threshold of establishing a prima facie case that she holds native title rights and interests in the claim area as a Mitakoodi person through her maternal great-grandfather, Billy Chisholm. Ms Dolan was not cross-examined.

21    Ms Dolan gave evidence that she was born in 1957 in Cloncurry, Queensland, and has lived there for all of her life, save for one year during which she lived in Mount Isa for school. She further deposed that:

(1)    she had always known that the country she lived on was her family’s land and that she and her brothers had a responsibility under their traditional laws and custom to look after their land, including visiting and looking after places on country where the old people had lived and hunted, which they had done throughout their lives;

(2)    while she did not know while growing up that the area around Cloncurry, up and down the Cloncurry River, and what is now the claim area for the Mitakoodi People Claim, was called Mitakoodi country, she always knew that it was her country and had been told to look after it by her parents and other elders;

(3)    she had taught her children the importance of showing respect to the country and how to survive;

(4)    she knew that Fort Constantine, where her grandmother Ninny was born, was her country and from the time she was young, had travelled with her family to Fort Constantine and nearby stations hunting, fishing and camping on the land;

(5)    she gave detailed evidence of hunting, fishing and collecting bush tucker within the claim area with her parents when she was growing up and of her mother teaching her about different foods and medicines;

(6)    she knew of some of the special places and sites within the claim area which she had been shown by her parents and had a responsibility to look after, as well as knowing a place which her mother had warned was dangerous;

(7)    she knew that some objects from some of the special places had been removed by people who had done the wrong thing, and she had been told by her mother and father that you could look at those things but not touch them;

(8)    she and her brother occasionally checked painting sites to ensure they were not damaged and she was allowed to go onto stations where the painting sites were located by the station owners who knew her and her family;

(9)    she wanted to make sure that her older boys would know where the sites were, that this was part of their country, and that they would have access to them once she became too old to go out;

(10)    while her mother taught her a lot about country, her mother was very hesitant to talk about her life and did not talk to Ms Dolan about what Aboriginal group she belonged to;

(11)    when she was an adult, she was told by one of the old people living in Cloncurry that she was “Mithakari” through her mother, which was reaffirmed by that person’s eldest son on a later occasion;

(12)    she was told by her sister Kerrie in 2017 that they were Mitakoodi through her grandmother Dolly Chisholm and her grandmother’s father, great-grandfather Billy Chisholm; and

(13)    she now identifies as a Mitakoodi person through her mother, her grandmother Dolly and Dolly’s father Billy Chisholm.

22    Mr Rayner is an anthropologist who has been employed by Queensland South Native Title Services Ltd (QSNTS) since January 2014 in the position of Research Officer. Before his employment with QSNTS, he worked as a native title anthropologist for the Central Land Council in Central Australia for 10 years.

23    In his role with QSNTS, Mr Rayner assisted from February 2014 to June 2019 with a regional native title research project commissioned by QSNTS which had focused on north-west Queensland, including areas currently within the claim area. As part of that project, he assisted with genealogical and anthropological investigations in relation to a person appearing as “Billy” on a genealogical chart prepared by Dr Norman Tindale in 1938. Mr Rayner opined that:

(1)    Dr Tindale’s records, including of interviews he conducted with Remus McIntosh at Woorabinda, Queensland, support Ms Dolan’s claim including that:

(a)    Billy was a member of the “Maithakari Tr”, as was his son, Remus McIntosh and daughter, Maude McIntosh;

(b)    Mitakoodi is one of 15 alternative names identified by Dr Tindale for the Maithakari language group,

(c)    Remus McIntosh was associated with “Fort Constantine NE of Cloncurry”;

(d)    Coolullah and Fort Constantine were Maithakari;

(e)    Cubbaroo, Fort Constantine and Duchess Station are within at least part of the claim area;

(2)    In his 1897 publication, Ethnographic Studies among the North-West-Central Queensland Aborigines, Dr Walter Roth described the Mitakoodi People as having their head encampment at Fort Constantine;

(3)    Research into records and archival material held by the Queensland Government’s Community and Personal Histories Team (CPH) indicated among other things that:

(a)    Billy, father of Remus McIntosh, was also known as William Chisholm and Billy Chisholm;

(b)    Billy Chisholm was Dolly Chisholm’s father;

(c)    Dolly Chisholm was born at Fort Constantine;

(d)    Dolly was the mother of Charles Diemetz and Ruby Rodgers; and

(e)    Ruby Rodgers was Ms Dolan’s mother.

24    Based on information from the CPH material and Ms Dolan’s affidavit, Mr Rayner constructed a genealogical chart depicting Ms Dolan’s descent from Billy. He also arranged for a map to be produced depicting the locations referred to in Ms Dolan’s affidavit which shows a number of those locations as falling within the claim area, including Cloncurry and Fort Constantine.

25    The native title applicant alleged that Ms Dolan did not have a relevant interest and that her application must therefore be dismissed. In my view, however, the evidence relied upon by the native title applicant fell short of refuting the prima facie case established by Ms Dolan for the following reasons. These include the difficulty in giving any weight to evidence relied on by the native title applicant to the extent that that evidence sought to contradict the evidence relied upon by Ms Dolan, given that the factual allegations in question were not put to Ms Dolan or Mr Rayner in cross-examination.

26    First, Ms Kum Sing gave evidence that the claim group description is “based upon an adaptation of traditional laws and customs of the Mitakoodi people” (emphasis added) because of a concern that if the approach of Mr Daniel Leo, an anthropologist engaged by QSNTS, was adopted “we were about to be swamped by large numbers of people who have never identified with the country now claimed by the Mitakoodi people” (Kum Sing affidavit at [4]). That evidence does not however suggest that the adaptations to the claim group descriptions to which Ms Kum Sing refers were based upon traditional laws and customs, as opposed to suggesting that an essentially practical decision was made to limit the claim group.

27    Secondly, Ms Kum Sing gave evidence that the definition of the claim group was limited to those who “principally” identify as Mitakoodi or to the claim area in direct response to Mr Leo’s report. It was her evidence that this term was to take account of the fact that descendants of the ancestors listed in the claim group description may also identify as belonging to some other people’s traditional country through another ancestor and “[i]n such circumstances, our laws and customs require the person to have made a choice of whether to follow their mothers or their father’s line of descent (or the line of descent of a particular grandparent)” (Kum Sing affidavit at [6]; see also Ah Sam Affidavit at [4]). That evidence again does not foreclose the question of Ms Dolan’s claim through her ancestor; nor does the evidence of Mr Ah Sam that he was aware that other members of the Tim family on their father’s side had publicly identified as Kalkadoon, being a proposition which was never put to Ms Dolan in cross-examination.

28    Thirdly, Ms Kum Sing explained in her affidavit at [6] that:

Our traditional laws and customs also require that the identification of a person to a particular Mitakoodi ancestor to be recognised by other Mitakoodi people. In the context of the native title claim, this means that the claim group itself has the last word on whether a person has identified with an ancestor belonging to their country.

29    However, with respect, that evidence assumes the correctness of the description of the claim group which Ms Dolan disputes insofar as it excludes her ancestor, Billy Chisolm. Again, therefore, it is not an answer to Ms Dolan’s prima facie interest in the claim area.

30    Fourthly, the native title applicant relied upon evidence of the meeting of the Mitakoodi claim group on 6 July 2019 (the July 2019 meeting) to consider whether Ms Dolan and her family should be added to the claim group description and whether they were recognised as identifying as Mitakoodi People. Ms Dolan deposed that she attended the July 2019 meeting with her brother, Mitchell Tim, at the Shire Hall at Cloncurry after seeing a notice in The North West Star newspaper. She said that she was upset by the experience because “there was a hall full of people who were telling us wrongly that we didn’t belong there” (Dolan affidavit at [67]).

31    While there remained some contention about what happened at the July 2019 meeting, for the purposes of determining this application I accept that Ms Kum Sing and Mr Hardie correctly describe what occurred insofar as their evidence suggests that Ms Dolan and her brother, Mitchell Tim, were given a fair opportunity to explain why they should join the claim group and to answer questions. I also accept for the purposes of this application Mr Hardie’s evidence that he distributed a pamphlet from Ms Dolan’s sister, Kerrie Tim, at her request to the meeting. However Ms Kum Sing also said in her affidavit at [13] that:

… In the end, a resolution to accept the Tim family on the claim was put to the authorisation meeting and the vote to accept it was inconclusive. An amended resolution was put to the meeting (with the Tim family not included) and it was passed by a clear majority.

32    Mr Hardie described the outcome differently, saying that “the decision of the claim group was not to agree to Melita [Dolan] and her family coming onto the claim. It was not unanimous, but from what I saw the decision was made by a reasonable margin of claim group members in attendance” (Hardie affidavit at [6]).

33    Based upon this evidence, the native title applicant contended that “[t]he claim group, having applied their traditional laws and customs, determined that [Ms Dolan] was not a Mitakoodi person and did not meet the criteria for recognition and acceptance as a Mitakoodi person” (emphasis added). The native title applicant also relied upon the decision of Dowsett J in Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 (Aplin) for the proposition that it is the claim group which must determine its own composition having regard to its traditional laws and customs.

34    However, even accepting that the traditional laws and customs of the Mitakoodi People require that the identification of a person to a particular Mitakoodi ancestor be recognised by other Mitakoodi People, there was no evidence to suggest that the procedure adopted by the meeting to resolve the Tim family claim by way of a majority vote accorded with the traditional laws and customs for the recognition of persons as Mitakoodi. Furthermore, even taken at its highest, Ms Kum Sing’s evidence was that the vote on an amended resolution with the Tim family excluded from the claim was passed by a clear majority (whereas the vote on the original resolution to include the Tim family on the claim was inconclusive), while Mr Hardie says that the decision to reject the Tim family’s inclusion in the claim group was not unanimous. Notwithstanding the different descriptions of what was voted upon, both accounts suggest that there may well have been acceptance of the Tim family claim by some members of the native title claim group who attended the meeting. Furthermore, an outcome based on a majority of members of the claim group attending the meeting discloses nothing about the knowledge of those who comprised the majority, or their authority, to speak on the question of who is and is not recognised as Mitakoodi under traditional laws and customs. In so finding, I have not overlooked Mr Ah Sam’s evidence that he knew from personal experience that many of those comprising the majority grew up with Ms Dolan and her siblings, as had he, which is as high as the evidence on the point rose (Ah Sam affidavit at [8]).

35    Finally, Ms Kum Sing otherwise gave evidence on why she doubts Ms Dolan’s claim to be Mitakoodi, including her doubts about whether Dr Tindale’s description of Billy Chisholm, Maude and Remus as Mitakoodi was correct (Kum Sing affidavit at [10]–[11]) and the extent of Ms Dolan’s knowledge of the stories and traditional laws and customs associated with the sites to which Ms Dolan refers in her affidavit (Kum Sing affidavit at [16]–[19]). Mr Ah Sam also gave reasons as to why, despite accepting that Ms Dolan and Mr Tim “were genuine in wanting to be associated with the country where they grew up and worked” and his respect for the Tim family’s historical association with many parts of Mitakoodi country, he voted against their inclusion in the native title claim group and remains of the view that they have no right to speak for Mitakoodi traditional country (Ah Sam affidavit at [8]–[9]). With respect, not only has there been no cross examination of Ms Dolan and Mr Rayner enabling them to respond to those doubts, but the reliance upon such evidence is misplaced given that Ms Dolan has to establish no more than a prima facie interest at the joinder stage. None of this is to deny the potential relevance of such evidence, should the matter proceed to trial and this question remain in issue.

36    It follows that nothing in the evidence relied upon by the native title applicant leads me to conclude that Ms Dolan failed to establish a prima facie interest in the claim area as a native title holder.

4.3    Ms Dolan’s interests may be affected by a determination in the proceedings

37    The native title applicant contended Ms Dolan’s interest cannot be affected by determination because she has no interest in the claim area as a Mitakoodi person or otherwise. However, that contention cannot succeed as I have rejected the contention that Ms Dolan has no prima facie interest in the claim area, which was all that she was required to establish on her application for joinder.

38    I accept Ms Dolan’s evidence that she wished to be a respondent party to the claim because she believes that she has rights and obligations in the claim area as a Mitakoodi person, that heritage being passed onto her through her mother, and that she wished to contend that her ancestor should be included in the list of apical ancestors. Ms Dolan also explained in her affidavit that she was concerned that if a native title determination which excluded her was made, she would not be able to ensure that she and her children had access to the sites she had shown them; nor could they discharge their obligations to look after important sites within the claim area. She also wanted to be able to visit the claim area with her children and grandchildren. In addition, Ms Dolan made it clear that, if her ancestor was included in the Mitakoodi People Claim, she would support a determination of native title being made in favour of the Mitakoodi People over the claim area.

39    As such, this is not a case in which Ms Dolan wishes to assert native title over the claim area in order to defeat the Mitakoodi People’s claim; nor is it a claim in which the joinder applicant purports to make, in a backdoor way, an unauthorised application for recognition of native title. Rather, her purpose is to contend that the native title claim group is defined too narrowly and should include her ancestor so as to enable her and her family to have continued access to the claim area and discharge their obligations with respect to sites of significance.

40    That interest would clearly be affected adversely if her application for joinder was dismissed, given the in rem nature of a native title determination and, related to that, the fact that s 68 of the NTA provides that there can be only one determination of native title for an area: see by analogy Gaangalu Nation People at [22] (Rangiah J); Wuthathi People’s case at [15] (Greenwood J).

4.4    The interests of justice favour allowing the joinder application

41    Finally, the native title applicant submitted that it was not in the interests of justice to allow the application for joinder for the following reasons:

(1)    there was the potential for joinder of Ms Dolan to delay a native title determination in favour of the Mitakoodi People, which was aggravated by Ms Dolan’s delay in bringing the interlocutory application for joinder for over two years after the claim group had voted not to accept the Tim family as Mitakoodi People;

(2)    no application had been made for judicial relief on the basis that the native title claim group misapplied their traditional laws and customs to wrongfully exclude her and her family from the native title claim group (citing Aplin at [270]);

(3)    Ms Dolan could seek to have a native title claim authorised on her own behalf with the advantage that her claim would be subject to the registration test; and

(4)    an important discretionary factor against the court joining Ms Dolan was her failure to offer any reason as to why she had not sought to bring a properly authorised native title claim despite having had ample time within which to do so.

42    In relation to the first reason, bearing in mind the current stage of the proceedings, the orders made on 2 December 2021 already accommodated the referral of the outstanding issues between Ms Dolan and the applicant to mediation in the event that Ms Dolan is joined. Further, Ms Dolan sought to explain the reasons for her delay in bringing her application for joinder and I accept Ms Dolan’s submission that any resulting prejudice to the native title applicant is outweighed by the prejudice to her in being deprived of the opportunity to agitate her claim: see below at [48]–[49].

43    With respect to the second reason, the passage from Aplin on which the native title applicant relies goes no higher than to raise the possibility that a person who has been wrongfully excluded from membership of the claim group might be able to seek review perhaps by analogy to relief of fraud on the power. The native title applicant did not cite any authority where such relief has been granted by a court.

44    The third and fourth reasons given by the native title applicant fail, with respect, to appreciate that native title determination applications can be made under s 61(1) of the NTA only on behalf of properly constituted groups and not by individuals or small subgroups, consistent with the principle that native title is communally held: Risk v National Native Title Tribunal [2000] FCA 1589 at [29] (O’Loughlin J). Importantly, Ms Dolan did not dispute the claim by the Mitakoodi People to the claim area, but only the definition of the native title claim group insofar as it does not include her maternal great-grandfather as an apical ancestor and thereby excludes her and her family from the claimant group. As such, any native title determination application instituted by her would, of its nature, not be properly constituted in accordance with the requirements of s 61(1) of the NTA.

45    That being so, in my view it is in the interests of justice to allow the application for joinder.

46    First, I have taken into account that Ms Dolan has a clear and limited purpose in seeking joinder. In this regard, I note that it is apparent from her affidavit that Ms Dolan does not dispute the Mitakoodi People Claim with respect to the claim area, save insofar as her and her family are excluded from the native title claim group by reason of the omission of her apical ancestor.

47    Secondly, I have taken into account the seriousness of the adverse impact on Ms Dolan’s interests if she is not joined, having regard to the in rem nature of a native title determination and the fact that by virtue of s 61(1) of the NTA she would not be entitled to apply, relevantly, for a variation of an approved native title determination in favour of the Mitakoodi People. As to the latter, under s 61(1) only the registered native title body corporate, the Commonwealth or State Minister, or the Native Title Registrar may apply for a revised native title determination.

48    Thirdly, Ms Dolan explained the reasons for her delay in making the application as follows after the meeting:

I asked [my sister Kerrie] to follow up with the land council on behalf of our family, to see if anything could be done to make sure we are recognised in the Mitakoodi People’s native title claim. I asked her to do this because Mitchell and I are very busy with work, and Kerry knows more about the legal system than either of us. Kerrie was also about to retire from work and would have more spare time.

But Kerrie could not find the time because her partner got sick. and her daughter had a baby with cerebral palsy. Due to these factors, Kerry has not had the time to follow up at all. Because of this, I recently made decision, after speaking to staff members at Queensland South Native Title Services (QSNTS), to ask the Court to join me as a respondent party to the Mitakoodi People claim.

(Dolan affidavit at [68]–[69]; errors in the original.)

49    While the explanation for the delay is not entirely satisfactory, in all of the circumstances, including the current stage of the proceeding, I do not consider that her joinder application is unreasonably late. This is not, for example, a case such as that in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 1) [2021] FCA 1463 where, among other difficulties, the joinder applications were made “very close to the listed consent determinations with the intention of having the consent determinations postponed for an indefinite period” (at [12] (Mortimer J)). Rather, while Ms Dolan accepted that her joinder has the potential to delay progress towards a native title determination in the proceedings, causing some prejudice to the native title applicant and the other respondent parties, I accept her submission that there are a number of factors which mitigate that prejudice at least to some extent:

(1)    in her affidavit at [5], Ms Kum Sing foreshadowed possible amendments to the definition of the claimant group which would need to be put to a future authorisation meeting in any event;

(2)    the Mitakoodi People Claim is not (yet) listed for a consent determination hearing or programmed for trial; and

(3)    there are outstanding issues which remain in dispute between the current parties, as is reflected in the orders made on 2 December 2021 referring to mediation all outstanding issues in dispute in relation to progressing the Mitakoodi People Claim application to a native title consent determination.

50    Added to this, the orders made on 2 December 2021 already accommodate the referral to mediation of the outstanding issues between Ms Dolan and the applicant in the event that Ms Dolan is joined.

5.    CONCLUSION

51    For the reasons set out above, I considered that the application for joinder by Ms Dolan should be allowed and made orders accordingly.

Associate:

Dated:    21 March 2022