Federal Court of Australia

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 4) [2022] FCA 335

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 28 September 2021, as amended, be allowed in part.

2.    Esther Ruth Foote be joined as a respondent to the proceeding.

3.    The interlocutory application otherwise be dismissed.

4.    Subject to further order:

(a)    the participation of Ms Esther Foote in proceeding QUD673/2014 be limited to participation concerning the Pormpuraaw area of the claim area; and

(b)    where documents are required to be served from time to time on parties to the proceeding, all parties serving documents relating to areas other than the Pormpuraaw area are not required to serve those documents on Ms Foote.

5.    There be no orders as to the costs of the interlocutory application.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction

1    This interlocutory application was filed by a large number of individuals seeking to join the Cape York United #1 claim as respondents. All are people who identify as having a connection to the area of the CYU #1 claim known as Pormpuraaw, which covers approximately 2,250 square kilometres. This joinder application comes after meetings in September 2021, which did not result in the giving of any authorisation to the CYU #1 applicant to enter into s 87A agreements and proceed to a consent determination for the Pormpuraaw area.

2    It appears that all of the joinder applicants are accepted to be members of the current wider claim group for the CYU #1 claim. These individuals include Esther Ruth Foote, who is the primary moving party on the application. The amended interlocutory application dated 2 December 2021 lists 128 other individuals in the Schedule as persons who seek to be joined as respondents.

3    The background to the CYU #1 claim is set out in the Court’s recent consent determination reasons in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya’u determination) [2021] FCA 1464, in respect of an area recognised as subject to native title held by the Kuuku Ya’u People. I adopt the background set out at [12]-[18] of those reasons. The only matter which need be repeated is to emphasise that the proposed course of the proceeding since around April 2020 involved sequential, area based s 87A agreements and consent determinations, a process which was contingent upon changes to the authority of the applicant to permit this to occur.

4    In the Kuuku Ya’u and Uutaalnganu (Night Island) determinations (see Ross (No 2); Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 3) (Uutaalnganu (Night Island) determination) [2021] FCA 1465), the Court accepted the CYU #1 applicant was lawfully authorised to progress the overall claim in that way and, out of an abundance of caution, also exercised its power under s 84D(4) of the Native Title Act 1993 (Cth) to make a determination of native title despite any actual or arguable defect in the (re-)authorisation of the CYU #1 applicant.

5    The Pormpuraaw area was scheduled as the first area which would progress to consent determination under the revised arrangements to resolve the CYU #1 claim. A consent determination was listed for 23 November 2021. In large part, that was because the parties saw a consent determination for that area as the most straightforward. That did not turn out to be the case.

6    After the re-authorisation of the CYU #1 applicant, the next step towards a consent determination for Pormpuraaw appeared to proceed positively. At a meeting held on 16 September 2020, those in attendance unanimously resolved that the proposed native title holding group be the native title group for the Pormpuraaw report area. However, a year later, in meetings held on 2 September 2021 in Pormpuraaw, and on 3 September 2021 in Kowanyama, a majority of attendees, cumulatively across both authorisation meetings, voted against the proposed resolutions, including the resolution to approve the proposed s 87A agreement.

7    The evidence was that, at Pormpuraaw, there were 19 votes cast in favour of the consent determination, and 45 votes against. At Kowanyama, there were 18 votes in favour and 13 votes against. Cumulatively, that meant over the two meetings, there were 58 votes against the consent determination, and 37 votes in favour of it.

8    It is against this background that the joinder application was made, led by some of the individuals who voted against the consent determination proposal.

9    In my opinion, the joinder application should be allowed in part, and Ms Esther Foote should be joined as a respondent, with her active participation rights in the proceeding being expressly limited to matters concerning the Pormpuraaw area. The joinder application should otherwise be dismissed.

Evidence on the interlocutory application

10    The following affidavit evidence is taken as read on the joinder application:

(1)    The affidavit of Derek Perkins, affirmed on 24 September 2021.

(2)    The affidavit of Esther Ruth Foote, affirmed on 27 September 2021.

(3)    A second affidavit of Mr Perkins, affirmed on 11 October 2021.

(4)    The affidavit of Joshua Thomas Foote, whose name is also given as Kurkorm, affirmed on 11 October 2021.

(5)    A second affidavit of Ms Foote, whose name is also given as May’ Kaath’ Raakin on this affidavit, affirmed on 1 December 2021.

(6)    A third affidavit of Ms Foote (a.k.a. May’ Kaath’ Raakin), also affirmed on 1 December 2021.

(7)    The affidavit of Janey Janet Deakin, whose name is also given as Minh Punpamparr Riikir, affirmed on 1 December 2021.

(8)    A third affidavit of Mr Perkins, affirmed on 2 December 2021.

11    The CYU #1 applicant filed and read without objection the following affidavit evidence:

(1)    The affidavit of Kirstin Donlevy Malyon, affirmed on 16 December 2021.

(2)    The affidavit of May Mary Ballie, affirmed on 27 January 2022.

(3)    The affidavit of Devon Richard Herbert Tarpencha, affirmed on 28 January 2022.

(4)    A second affidavit of Ms Malyon, affirmed on 1 February 2022.

12    The State did not file any affidavit evidence.

13    In her affidavit affirmed on 27 September 2021, Ms Foote deposes:

I am a traditional owner of Pormpuraaw country extending south to Merr’nhno (Coleman River), north to Thiitihi (Edward River) west to the Gulf of Carpentaria and east to Strath Gordon Station.

14    In her affidavit evidence, Ms Foote also states that:

(a)    she and her people, the Kuu Ku Thaayorre clan, “are all against the determination”, and that she “withdraws her authority” for the Cape York Land Council and the CYU #1 applicant to act for her in the present proceeding, QUD673/2014;

(b)    she was authorised to make that affidavit by 123 Thaayorre, all of whom are members of the native title claim group. She states that she knew these 123 Thaayorre to be descendants of a number of apical ancestors named in that affidavit;

(c)    she has 112 signatures supporting the interlocutory application, and she annexed to her second affidavit a document purporting to contain those signatures, although a small number of signatures were missing.

15    At [31]-[32] of her second affidavit, Ms Foote deposes that:

I am aware that the families Mimosa, Yam and Bally all claim our country as theirs. Those families are not Thaayorre and are not from our country.

The only traditional owners of Pormpuraaw are the Thaayorre. I do not want a native title determination that recognises other persons on Thaayorre country.

(Emphasis added.)

16    There was no challenge to these aspects of Ms Foote’s evidence. It is fair to say Ms Malyon’s evidence for the CYU #1 applicant implied that Mr Joshua Foote, Ms Foote’s son, had exercised some influence in the voting at the two meetings I have referred to above. I make no findings on that issue; in my opinion it is not relevant to the resolution of the joinder application.

17    It is not necessary to summarise or describe the remainder of the affidavit evidence, given the conclusions I have reached. I have considered all of the affidavit evidence in reaching my conclusions.

Relevant law

18    Section 84(5) of the NTA provides

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.

19    Rule 34.105 of the Federal Court Rules 2011 (Cth) provides that a joinder application brought after the end of the notification period (which is the situation here) must be accompanied by an affidavit stating:

(a)    how the joinder applicant’s interests may be affected by a determination in the proceeding; and

(b)    why it is in the interests of justice for the Court to grant the application.

20    As the CYU #1 applicant submitted, I have previously described the joinder power in the following terms:

The joinder provisions in s 84(5) are clearly wide enough to comprehend other indigenous people who allege their interests (including native title interests) are affected by the application. However, s 84(5) is a discretionary power, so ultimately it will be a matter for the Court’s discretion whether a person is joined, even if it is the case that she or he can establish her or his interests are affected. The Court must also be satisfied it is in the “interests of justice” for the person to be joined.

(Gunaikurnai People Native Title Claim Group v State of Victoria [2018] FCA 23 at [51])

21    See also my approach in Nona on behalf of the Badu People (Warral & Ului) v State of Queensland [2020] FCA 983 at [214]-[216], referring to Rangiah J’s decision in Bell v State of Queensland [2020] FCA 695. I adopt and apply that approach to this application.

The parties’ submissions in brief summary

22    The joinder applicants contend that the Thaayorre People are the sole traditional custodians of the Pormpuraaw area. They contend that none of the current members of the CYU #1 applicant have authority to speak on behalf of the Thaayorre, or on behalf of the Pormpuraaw area. The joinder applicants state that they do not want a determination of native title over the Pormpuraaw area.

23    Counsel for the joinder applicants made the following submission:

The joinder applicants do not want the determination of native title as propounded by the claim applicants for two principle [principal] reasons.

First, the application in its current form would give formal recognition to persons the joinder applicants do not recognise as having native title interests in the Pormpuraaw area. And secondly, they do not want a prescribed body corporate, a PBC, to hold native title because they are concerned about how a PBC would interact with the existing Council and Aboriginal Corporations acting in Pormpuraaw.

24    There was then this exchange:

HER HONOUR: Those propositions that you’ve just put about the group description and not wanting a PBC, can I take it then from the position of the joinder applicants, even if the group description were altered in a way that, and this is hypothetical, obviously, in a way that fitted with your client’s understanding of who holds native title, that really doesn’t address the matter and they don’t want a native title determination anyway even if the group description is altered.

MR PLUNKETT: Precisely, your Honour.

….

HER HONOUR: Again, Mr Plunkett, just to be clear. The joinder applicants, I suppose this is, I mean, this is really the crux of what I’m still not clear about. The joinder applicants want to be joined in order to preclude any determination of native title in that area.

MR PLUNKETT: Precisely, your Honour. We’re unabashed about that.

25    Counsel went on to explain that one of the purposes of the joinder application was so that the joinder applicants could participate in a mediation as parties, and seek to persuade the CYU #1 applicant, and other parties, that any determination application for the Pormpuraaw area should be withdrawn. After some further exchanges, counsel also accepted that there was a second and alternative purpose to the joinder application; namely, if the claimant application over Pormpuraaw remained active, the joinder applicants as parties wished to agitate their contention that the correct claim group description for that area should be limited to the Thaayorre People. They seek to advance this alternative contention in mediation, and if necessary, by a trial on that issue.

26    The CYU #1 applicant opposes the joinder entirely. It submits the question is one of discretion, as it accepts that all or most of the joinder applicants are CYU#1 claim group members, and so have interests affected by the claimant application. However, it submits their interests are protected by the current arrangements for successive determinations in each area, as no determination can occur unless the particular group authorises it. What happened in September 2021 illustrates this point, the CYU #1 applicant submits. Ms Malyon’s second affidavit deposes to a full and revised further consultation process going forward, which could only result in a s 87A agreement if the Pormpuraaw group authorises it. That process should be preferred to a joinder, which limits which individuals are parties and may limit participation rather than enhance it.

27    The State’s submissions on the joinder application were less emphatic in writing than orally, once the State had the opportunity to consider Ms Malyon’s second affidavit and the consultation proposal in that affidavit. In oral submissions, and after seeing further material from the CYU #1 applicant, the State opposed joinder and indicated a preference for the consultation process proposal of the CYU #1 applicant as the “best and fairest” option in the circumstances.

Resolution

28    The circumstances thrown up by this joinder application are highly unusual. I accept there is sufficient evidence for the Court to proceed on the basis that Ms Esther Foote has the support of more than 100 other people who identify as having a connection to the Pormpuraaw area, and who are members of the CYU #1 claim group. That is not an insignificant number of people. It is more than the total number of people who turned out to vote at the two Pormpuraaw authorisation meetings. That fact distinguishes this situation from cases where there may only be one dissenting claim group member who is seeking joinder.

29    These people, including Ms Foote, are saying to the Court they do not want a determination of native title. Through their counsel, they have advanced reasons which are not on their face irrational. There was no cross-examination of the deponents of the affidavits in support of the joinder application to suggest that the position they put in their evidence was untrue, or coerced. I proceed on the basis that Ms Foote, the other deponents, and those who support them, presently hold a genuine belief that first, a determination of native title is not as suitable to their interests as the current arrangements under Queensland law with the Pormpuraaw Aboriginal Shire Council; and further that the current claim description for Pormpuraaw is inaccurate, and too wide.

30    I accept that joinder of only one or several individual claim group members as respondents has the capacity to limit participation in resolution of issues in the proceeding, rather than enhance it, especially in a mediation context. I am tolerably confident that will not be the case if this aspect of the proceeding is carefully managed, as the whole proceeding has been up to this point. Going forward, the process in respect of the Pormpuraaw area may include further or specific mediation, or it may not. It is not inevitable that a new mediation process in respect of Pormpuraaw is the correct way forward. The parties will need to discuss this, and persuade the Court to make orders about that matter. The joinder of Ms Foote will give her a right to be heard in the proceeding about these matters, but it will not dictate any particular outcome. Even if the Court determines that some further or new mediation process is appropriate, a mediator has a number of powers under s 94E and s 94F of the NTA to ensure the appropriate conduct of any mediation. The Court also has a range of powers available to it. Any capacity for a lack of inclusiveness of the whole Pormpuraaw group is capable of being avoided, in my opinion.

31    I accept the State’s thoughtful submissions at the hearing, that the proposed process in Ms Malyon’s second affidavit was a better option than joinder of certain individuals:

we would try to look at which is the fairest and best process that, you know, in the position where we are now, what’s the fairest way for them to do it? And having a process whereby people come forward and when I say “people”, the, in effect, the Cape York Land Council will arrange this sort of consultative process. And if there really is a will of the people in that area that they don’t want a determination, we would expect that the claim applicant and the Cape York Land Council would be willing to give effect to that and they would report that.

And if that ends up not being the position and Ms Foote’s group gets outvoted by people who see more advantage of having a determination, then that can be recorded. And what I was trying to, you know, loosely indicate earlier, is if there was some argument with the processes that were carried out by the claim applicant through the Cape York Land Council unfair, that might itself be a justification for a later joinder application. But if the processes are fair and open and they have a chance to participate and they do participate and they are outvoted then we would think that such a joinder application should be refused.

32    The emergence of this proposal only shortly before the interlocutory hearing meant the joinder issue became more finely balanced. As I suggested to senior counsel for the State in oral argument, the difficulty with any adjournment or postponement of the joinder application to see how the proposed consultation process goes is that such a course is neither cost effective nor efficient. I remain of that view. That is why I consider the interests of justice overall, although not perfectly, are best advanced by joining Ms Foote, and giving her, as a respondent party, a say in how this new consultation process might unfold and should be organised, including through the possible use of mediation, although as I have said, mediation may not be the most appropriate way forward.

33    This is a highly unusual claimant application. It is a single application, but since April 2020, avowedly regionally and area based. Maintaining some level of local or regional group contribution and sense of autonomy is important in a proceeding such as this. All the processes which have occurred with the consent and active participation of the existing parties to date have reflected and acknowledged this. The joinder of Ms Symonds and Mr Miller earlier in the proceeding also reflects this unusual aspect of the claim. Having said that, the need for all claim group members to respect and abide by the complexities of the process in the Court’s orders is important – the Court’s refusal to join Mrs Lucy Hobson, Mr Anthony Pascoe and the Kuuku Ya’u Aboriginal Corporation RNTBC illustrates this: see Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 1) [2021] FCA 1463.

34    There was force in Mr Plunkett’s reply submissions for the joinder applicants that there are certain protections and entitlements derived from having the status of a party to a proceeding. There is force also in the proposition that the outcome of the September 2021 meetings is a recent outcome, to which the Court should give some weight, despite the proposal by the CYU #1 applicant that it wishes to embark on a second persuasive exercise in the Pormpuraaw area.

35    As Mr O’Gorman submitted, there is evidence that a material number of claim group members for the Pormpuraaw area do wish to have a determination of native title; they were the ones who voted in favour of this course at the September 2021 meetings. It is correct that the Court needs to take account of their position as well. Senior counsel for the State made a similar point in referring to the initial authorisation of the CYU #1 claim, which Pormpuraaw people could participate in and appeared not to have opposed, since only two people across the whole of Cape York voted against the authorisation of the CYU #1 claim, and 550 voted in favour of it, over 23 meetings. I consider a decision to join only one of the people in the Pormpuraaw group who has a position of active opposition to the native title determination, and to the present claim group description, strikes an appropriate balance in the circumstances. It recognises what I consider to be a rational interest, but does not overwhelm or threaten to disrupt the future conduct of the proceeding.

36    I reject any contention that the joinder applicants have delayed. They applied promptly after the September 2021 meetings.

37    I do not propose to join Joshua Foote. Ms Esther Foote is his biological mother, although he also acknowledges his mother’s “little sisters” as his mothers “cultural way”. I consider the joinder of Ms Esther Foote is sufficient to accommodate the interests of justice in the circumstances, for the reasons I have outlined. It is not necessary to address some of the criticisms made of Joshua Foote by the CYU #1 applicant in submissions and in its material. I note that in his affidavit, Mr Foote also makes a number of criticisms and allegations about events leading up to, during and after the authorisation meetings in September 2021. I make no findings on those matters either. The proposed consultation process will give all those who have views to express about what should happen in Pormpuraaw concerning the CYU #1 claim a chance to express those views.

38    I made it clear to counsel for the joinder applicants at the hearing of the interlocutory application that:

the claim group that your clients form part of had priority in the structure of the – of the resolution of the entire Cape York United claim because it was seen as a straightforward consent determination with no opposition. And so Pormpuraaw – the claim group for Pormpuraaw – got to go right to the front of the queue so to speak because it was seen as straightforward and many – as you’ve heard for the last couple of hours, many of the other areas are not. If this area is to continue as part of the claim but on the basis that there’s some litigation needed about it, I can tell you from my perspective as case managing judge it may well go to the end of the queue. And the end of the queue is about three or four years away.

….

I will not, as case managing judge, continue to give this [Pormpuraaw] region any particular priority if it’s now going to be litigated, because that’s not the basis on which it got its priority in the first place. So that will be a matter that your clients will need to consider and everyone else will need to consider and I will hear what everyone else has to say about that, but the – the Pormpuraaw claim group, if it remains in any form, will lose its priority so far as I’m concerned in case management.

39    That remains my view. However, the CYU #1 applicant wishes to continue to progress consultation about a consent determination in this area, and to do so promptly, in 2022. The CYU #1 applicant has the statutory responsibility of “dealing” with the claim under s 62A of the NTA. The Court should give weight to its proposals about how to approach such a complex claim, especially where, as here, it has proven itself to be conducting the proceeding as efficiently and effectively as possible, with the application of a tremendous amount of resources. Therefore, I am content for orders of the kind suggested by Ms Malyon in her second affidavit, and addressed by senior counsel during the hearing, to be formally proposed and discussed, even though they may mean the Pormpuraaw area will continue to receive some priority over other areas.

40    Accordingly, the Court endorses consideration of the proposed further consultation process outlined in Ms Malyon’s second affidavit, although as Mr O’Gorman observed, it may need some refinement. The State also supports this process. As a party, Ms Foote will be entitled to participate in the design of this process, and to make suggestions about what orders the Court should make to direct the implementation of this process. That is appropriate where the evidence shows that she has the support of a significant number of people from Pormpuraaw. Her views may or may not carry the day, but she will be heard.

41    Taking into account the unusual structure of this claim, and the regional and area based approach now reflected in it, I consider conditions should be imposed on Ms Foote’s joinder. Her assertion of interest was specific to Pormpuraaw, and her participation in the proceeding as a respondent should be limited to that area. The condition will be expressed as “subject to further order”, so that if Ms Foote wishes to contend for a wider role, she will be able to do so by application, supported by proper material. Similarly, in a costly and resource intensive proceeding, Ms Foote’s joinder should not result in cost and resource impacts on the future conduct of the proceeding as a whole, if there are mechanisms to contain or avoid those impacts. For that reason, there will be a limit on what documents need to be served on Ms Foote. Subject to any orders to the contrary, filed documents will in any event be available for inspection by a party through the Commonwealth Courts Portal. Once again, if Ms Foote considers this order is inappropriate, she can apply for it to be amended.

Conclusion

42    The interlocutory application will be allowed in part. There is no basis to reserve costs. The terms of s 85A(1) apply, and no party has acted unreasonably or otherwise acted in a way which would engage s 85A(2) of the NTA.

Associate:

Dated:    4 April 2022

SCHEDULE OF PARTIES