Federal Court of Australia

Wyles on behalf of the Gurambilbarra Wulgurukaba People v State of Queensland (No 2) [2022] FCA 682

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application for an order that Evelyn Lymburner cease to be a respondent is 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 (the GW Claim) is an application for a determination of native title on behalf of the Gurambilbarra Wulgurukaba People (the GW People). The claim area encompasses the northern suburbs of Townsville in North Queensland.

2    In the interlocutory application presently before the Court, the applicant seeks an order pursuant to s 84(8) of the Native Title Act 1993 (Cth) (the NT Act) that Ms Evelyn Lymburner cease to be a respondent to the GW Claim. Ms Lymburner opposes that application.

3    Section 84 of the NT Act provides, relevantly:

…

Dismissing parties

(8)    The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.

Court to consider dismissing parties

(9)    The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:

(a)    the following apply:

(i)    the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and

(ii)    the person’s interests are properly represented in the proceedings by another party; or

(b)    the person never had, or no longer has, interests that may be affected by a determination in the proceedings.

4    Section 84(3)(a)(ii) of the NT Act allows a person to become a party, “if the person claims to hold native title in relation to land or waters in the area covered by the application”. Ms Lymburner became a respondent to the GW Claim by filing a Notice of Intention to Become a Party to an Application in Form 5. In her Form 5, Ms Lymburner describes her claim as follows:

1.     I am a Bindal native title holder and I have not been included as part of the claim group and my interests in the claim area will be affected by a determination of native title.

2.     I am Bindal through my biological descent from the apical ancestor known as Dottie or Tottie or Lottie or Fottie who was married to Con Limburner. Our Bindal ancestor has not been included as an apical ancestor on the claim group description and myself and my family members have been excluded from the claim group and not accepted as Bindal. Our family and oral history is that Dottie or Tottie or Lottie or Fottie is a Bindal woman and she should be included as a Bindal apical ancestor.

3.     I also dispute the Gurambilbarra Wulgurukaba people claim Boundary & Bindal claim area boundary because Bindal country goes to Black River, west to the Upper Burdekin and south to the Lower Burdekin.

4.     Myself and Ricky Dallachy are a member of the group and authorised to speak and made decisions on behalf of the family, in regards to connection through Dottie or Lottie or Fottie Lymburner who is our Bindal ancestor.

5    In Alec Illin & Ors on behalf of the Bindal People #2 v State of Queensland & Ors (QUD 503/2016) (the Bindal Claim), the Bindal People have made an application for a determination of native title. The application defines the Bindal People as the biological or adopted descendants of named ancestors. Ms Lymburner claims to be Bindal, but that her biological ancestors have been wrongly excluded from the Bindal Claim. I will refer to the people Ms Lymburner claims to belong to as “Bindal” to differentiate them from the narrower group described as the “Bindal People” in the Bindal Claim.

6    The Bindal Claim is over an area immediately to the south of the GW Claim, encompassing the southern suburbs of Townsville. The claim areas do not overlap. Ms Lymburner nevertheless asserts that Bindal country extends into areas claimed under the GW Claim. In other words, she claims to hold native title in part of the GW Claim area.

7    It is necessary to explain some of the geographical references appearing in Ms Lymburner’s Form 5 and in the evidence.

8    Ross River runs through the centre of Townsville. The GW Claim is over areas to the north of Ross River, while the Bindal Claim is over areas south of Ross River. Ross River forms a boundary between the two claims. Ross River flows into Cleveland Bay which forms the eastern extremity of Townsville.

9    Black River passes through the northern suburbs of Townsville. Castle Hill, “Jimmy’s Lookout” (another hill) and Mount Marlow are north of Ross River. I infer that Cape Marlow is also north of Ross River. These places are within the GW Claim area.

10    The Lower Burdekin area and Mount Elliot are to the south of Ross River, and are within the Bindal Claim area.

11    The applicant argues that Ms Lymburner should be removed as a respondent because she has not demonstrated any “tenable defensive claim”. The applicant asserts, in effect, that the Court should be satisfied that Ms Lymburner, “never had…interests that may be affected by a determination in the proceedings”, within s 84(9)(b) of the NT Act.

12    In Alvoen on behalf of the Wakaman People #3 v State of Queensland [2019] FCA 1469 at [28], Reeves J summarised the principles applicable to an application for removal of a respondent under s 84(8) of the NT Act as follows:

(a)    the discretion vested under s 84(8) is mirrored in that vested under s 84(5);

(b)    the “‘interests’ to which s 84(5) refers are not confined by the definition of the word ‘interest’ in s 253 of the [NTA]”;

(c)    the particular circumstances specified in s 84(9) are not exhaustive of the circumstances in which a person may be removed as a party under s 84(8);

(d)    a person joined as a respondent party under s 84(3), or s 84(5), cannot seek a determination of native title in favour of a group of persons without making an application under ss 13 and 61 of the NTA;

(e)    however, a person can be joined and remain a respondent party “for the quite separate and different purposes of seeking to protect the native title rights and interests they claim to hold from erosion, dilution or discount”;

(f)    a prospective or existing respondent who can point to a “clear and legitimate objective which he or she hopes to achieve” as a respondent party will usually be successful in a joinder application unless there are other factors weighing against the exercise of that discretion;

(g)    dissatisfaction of a claim group member with the institution of proceedings or the manner of their conduct does not, of itself, warrant that person being joined, or remaining, a respondent party;

(h)    however, if such a person contends that their native title rights and interests exist by reason of their membership of a different and competing claim group, they may be permitted to remain a respondent party;

(i)    further, such a person may also be permitted to remain as a respondent party where they are disputing the composition of the claim group, rather than pursing an intra-mural dispute; and

(j)    a person who is a member of a sub-group of the native title claim group will not usually be joined as a respondent party.

(Citations omitted and underlining added.)

13    In TR (Deceased) on behalf of the Kariyarra – Pipingarra People v State of Western Australia [2016] FCA 1158, North ACJ held at [38]:

...[I]t is well accepted that a person claiming a competing native title interest which may be affected by the making of a determination in the application has an interest which justifies that person becoming or remaining a respondent to that application. Such a person is entitled to seek to protect their interest from erosion, dilution, or discount.

(Citations omitted.)

14    Some of the principles relevant to summary dismissal of a proceeding under s 31A of the Federal Court of Australia Act 1976 (Cth) can appropriately be adapted to summary removal of a respondent under s 84(8) of the NT Act. In Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 at [3], McKerracher J held that under s 31A, the moving party bears the onus of persuading the Court the application has no reasonable prospects of success, but if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary. In Harkin on behalf of the Nanatadjarra People v State of Western Australia (No 2) [2021] FCA 3 Griffiths J observed at [13] that particular caution needs to be exercised in determining whether summary dismissal should be granted in circumstances where there are factual disputes and the evidence is not in its final form.

15    As Griffiths J observed in Lewis on behalf of the Warrabinga-Wiradjuri People # 7 v Attorney-General of New South Wales (No 2) [2021] FCA 1269 at [10], the question of whether or not the Court will order removal of a respondent will ultimately turn upon an assessment of the interests of justice.

16    The issue to be determined is whether Ms Lymburner has a tenable or arguable case that she has an interest which may be adversely affected by determination of the GW Claim. That depends, in part, on whether she has a tenable case that the Bindal hold native title under their traditional laws and customs in areas claimed by the GW People. It also depends, in part, on whether Ms Lymburner has a tenable case that she is a Bindal person.

17    As to the second of these matters, the description of the claim group for the Bindal Claim excludes Ms Lymburner from that group. Ms Lymburner asserts that she is Bindal through descent from the wife of Con Lymburner (who is described by Ms Lymburner variously as her grandfather or great-grandfather), and from Con Lymburner’s mother. For the purposes of the present application, the GW applicant accepts Ms Lymburner to be a Bindal person.

18    Ms Lymburner has filed affidavits seeking to demonstrate that she has at least a tenable or arguable case that the Bindal hold native title north of Ross River. Ms Lymburner is self-represented and her material is somewhat discursive and difficult to follow. I am not saying this to be critical, but only to point out that there is some difficulty in drawing together the threads of her argument.

19    As I understand Ms Lymburner’s case, she relies upon the following matters to support her claim that the Bindal hold native title north of Ross River:

(1)    Ms Lymburner claims that:

(a)    her ancestor, Con Lymburner, told her and other members of her family that Bindal country extends north to Black River;

(b)    at least six generations of her family have been brought up as Bindal persons and they have acknowledged and practiced Bindal culture, traditions, lore and custom in areas between Ross River and Black River over their whole lives.

(2)    A shipwrecked sailor, James Morrill, lived with the Bindal for some 17 years from 1846, and gave accounts of living and ranging with them to both the north and south of Ross River.

20    It is necessary to proceed by accepting, for the purposes of the application for removal, Ms Lymburner’s claims concerning what she was told by Con Lymburner and the practices and beliefs of her family.

21    That leads to consideration of the accounts of James Morrill. Ms Lymburner’s affidavit of 20 September 2021 annexes several historical literary accounts of Morrill’s life, but the way the material is annexed to the affidavit makes it difficult to discern precisely what content relates to which source. The descriptions of the literature set out below reflect my understanding of the material.

22    Ms Lymburner’s affidavit annexes an undated publication entitled, The Story of James Morrill. That article indicates that Morrill was shipwrecked in 1846 and was washed ashore and lived for 17 years with Aboriginal people in the area between Townsville and Bowen (south of Townsville).

23    Ms Lymburner’s affidavit also annexes extracts from a book entitled, The “Peruvian” and James Morrill, written by Neville George. The book states that Morrill lived, “with the Bindal tribe who had adopted him”. It states that Morrill’s travels with the Bindal tribe extended from the Townsville area and around Mount Elliot and south to the Bowen district. It states that from “Jimmy’s Lookout”, Morrill sighted ships, but was unable to make contact.

24    Ms Lymburner’s affidavit annexes an article from The Canberra Times published in 1929 entitled, The Wild White Man 17 Years with the Blacks. It repeats some of the salient information found in George’s book.

25    Ms Lymburner’s affidavit also annexes an extract from the Encyclopaedia of Aboriginal Australia, which states that Morrill lived with the Bindal.

26    The applicant relies upon four expert anthropological reports prepared by Mr Daniel Leo. The first is dated December 2017 and is based on research he conducted between 2013 and 2017. Mr Leo’s opinion is that the Gurambilbarra were a land-owning grouping whose estate occupied the coast between Ross River and Black River. The Gurambilbarra were likely the southernmost members of the Girringun regional society, while the Bindal were likely the northernmost members of the Birri Gubba regional society. He considers that the Ross River was the boundary line between the two societies. His opinion is mainly based on the work of Charles Price in the 1870s and 1880s and from other observers, including Morrill, who corroborate and elaborate upon Price’s information.

27    Mr Leo notes that in respect of country south of Ross River, Price made reference to the “Woodstock tribe”, which Mr Leo considers to be the “Mount Elliot tribe” that Morrill lived with for much of the period from 1846 to 1863. I understand Mr Leo to accept that these were the Bindal.

28    Mr Leo records that in 1887, the Townsville Herald published an article seemingly recounting an account given by Morrill to another person. The article states:

Morrill never wandered very far from Cleveland Bay. The domain of the tribe with which he was associated with was from the Burdekin to the Black River, and the favourite haunts were between Mount Elliot and Cape Marlow… Townsville being, as he called it, “ his country”, he was very anxious to obtain an allotment of land, and at the first land sale (which was held in Bowen), a quarter of an acre in Flinders street was knocked down to him at the upset price, no one being inclined to bid against him.

29    Mr Leo also refers to an article published in the Townsville Daily Bulletin entitled, New Facts Concerning James Morrill, in 1929. The article states:

The domain of the tribe with which he associated extended from the Burdekin River to the Black River, a distance of some 30 miles, and their headquarters were in the pockets of Mount Elliott. A favourite haunt of the tribe was near Cape Marlow, about 25 miles northwards of Cleveland Bay, and here Morrill spent much of his time. Often did he climb up the rugged sides of Castle Hill, and from the summit scan the blue waters of the bay, in the fond hope of seeing a sail that would rescue him from solitude, but for his trouble he was never rewarded.

In 1861 he heard that white people had been seen in the neighbourhood, and with the object of coming in contact with them, he joined a friendly tribe who inhabited country lying between the Burdekin and Cape Bowling Green.

30    Mr Leo comments that the 1929 account alters Morrill’s story in that previous versions placed him south of Townsville. Mr Leo states, “I suspect that there is an overplaying of a Townsville association that reflects local history boosterism”. Mr Leo, acknowledges, however, that the tribe that James Morrill lived with was a separate land-owning group in and around Townsville.

31    Mr Leo provided a further report dated October 2021 responding to material relied upon by Ms Lymburner. In that report, Mr Leo gives five reasons for maintaining his opinion that the country of the GW People was north of Ross River and the country of the Bindal was to the south. First, he relies upon the work of Price in the 1870s and 1880s. Second, Price and subsequent observers and researchers consistently recorded that the “Wulgurukaba” are of Townsville, and that they are culturally and linguistically associated with peoples to their north. Third, the GW People have sufficient evidence of their connection to the area between the Ross River and Black River. Fourth, the authorised Bindal Claim area extends only as far north as the Ross River. Fifth, Mr Leo considers that Ms Lymburner’s assertions in the Form 5 are insufficient in comparison to the weight of the evidence to the contrary to cause him to modify or qualify the opinions expressed in his previous reports.

32    Mr Leo produced a further report dated February 2022 specifically considering the historical documentary evidence of Morrill’s life with the Bindal. I will briefly, but by no means comprehensively, summarise the main points emerging from that report.

33    Mr Leo considers that there is insufficient evidence to support the assertion that Morrill lived with the antecedents of the Bindal in areas north of Ross River. He considers that, rather, there is a large weight of evidence supporting the position that they lived in areas to the south.

34    Mr Leo’s opinion is that reliance on historical information, rather than oral history handed down through the generations, is problematic. He considers it likely that members of Morrill’s clan travelled to the area north of the Ross River, rather than “lived” in that area. He observes that there is evidence of large gatherings of different tribes and opines that this is how Morrill initially came to know different peoples from across a large area.

35    Mr Leo points to inconsistencies between the historical literature relied upon by Ms Lymburner and improbabilities in some of the information contained in that material. He considers that little weight should be placed on this material.

36    Mr Leo points out that a number of articles place Morrill in the Mount Elliot area. He considers that the articles suggest that areas north of Ross River were not the “domain” of the Bindal, but an area over which the Bindal “ranged” based on relationships with adjoining groupings.

37    Mr Leo also points to an account given by Morrill in 1864 in which he described “my tribe” as being in the area of Mount Elliot. He observes that the accounts given directly by Morrill lack information about Townsville. Three newspaper articles written in 1863 recorded Morrill’s first accounts of his story. These articles consistently record that Morrill lived principally at Mount Elliot and, for short times, at Cape Cleveland, Bowen and the Ayr coastal plain before his return to European society 1863. There is no mention of places north of Mount Elliot.

38    Mr Leo gives, in total, some 32 reasons why the evidence concerning James Morrill does not lead Mr Leo to modify or qualify the opinions he expressed in his earlier reports.

39    It may be accepted that Mr Leo raises a number of arguments that seem, on their face, cogent. However, the fact remains that a number of historical sources apparently based on information provided directly or indirectly by Morrill indicate that the “domain” or “range” of the Bindal tribe included areas north to Black River. These areas include Castle Hill, Jimmy’s Lookout and Cape Marlow. Even if Mr Leo is right that the literature should be understood as indicating that the Bindal lived south of Ross River and merely travelled north, it must be inferred that they camped, hunted and gathered in the areas they traversed. This, together with Ms Lymburner’s evidence of what her grandfather told her and other members of her family, suggest that the Bindal People may have had some form of native title rights and interests in areas up to Black River. The reliability of the literature and whether the Bindal in fact had or have any native title rights and interests north of Ross River cannot presently be determined. It would be necessary to examine all the evidence that may be produced at a full hearing.

40    In Kokatha Native Title Claim v South Australia (2005) 143 FCR 544, in the context of an application for joinder under s 84(5) of the NT Act, Mansfield J held:

20    There is obviously good reason why persons who have competing claims to native title should be entitled to be parties to other competing claims for the same or overlapping area. As there can be only one determination of native title over a particular area, it is desirable that everyone who claims to be so entitled to such rights should be able to become a party to the claim or claims in which those rights may be determined.

…

24    … The assertion of those rights, to the extent that they are actually enjoyed by the party-applicants as individual members of the group, cannot lead in the Kokatha claim to a determination of native title rights and interests. They may however lead to a more informed decision on the Kokatha claim as to whether the native title rights and interests should be granted as expressed in that application. That is, the assertion of those rights may result in the Kokatha claim being less successful than it may otherwise be. Where there may be a competing native title group who claim communal rights and interests which may be affected by a determination in the Kokatha Claim, but there is no application by that group over the claim area, the members of that group should not be precluded from putting forward their claim in a defensive attempt to avoid the dilution of those interests.

41    In Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599, White J held:

109    A prospective or existing respondent party who can point to a clear and legitimate objective which he or she hopes to achieve by joining or remaining as a party to the proceeding will usually obtain a favourable exercise of the Court’s discretion with respect to joinder, unless there is some other factor such as delay weighing against that exercise.

(Citation omitted.)

42    In Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321, Reeves J held:

10    It has also been held at first instance in this Court that a person claiming to hold native title rights and interests over an area of land or waters affected by a native title determination application will ordinarily have a sufficient interest to be joined to proceedings under s 84(5) of the Act.

…

15    In [The Commonwealth of Australia v Clifton (2007) 164 FCR 355], Mr Mckenzie sought to be joined as a respondent to an existing native title determination application in order to seek a determination of native title in his favour and in favour of other members of the Kuyani people, notwithstanding the fact that at that time he had made no native title determination application of his own. The Full Court held that this Court could not make a determination that native title was held by a particular group unless a native title determination application had been made under s 13(1) of the Act, by a person or persons properly authorised by that group.

16    It follows that the Jagera #2 applicants are quite correct in their submission that Clifton prevents the present applicants becoming respondents in the Jagera #2 proceedings in order to seek a determination of native title in their favour over parts of the land covered by the Jagera #2 claim.

17    However, I do not consider that Clifton also stands as authority for the proposition that the present applicants are prevented from being joined as respondents in the Jagera #2 proceedings for the quite separate and different purposes of seeking to protect the native title rights and interests they claim to hold from erosion, dilution, or discount by the process of the Court determining the claims of the Jagera #2 claimants in these proceedings.

18    Indeed, various judges of this Court have held that persons in positions similar to the present applicants may be joined as respondent parties to conflicting native title proceedings to seek to defensively assert their native title rights and interests in those proceedings. I respectfully agree with the views expressed in these decisions.

(Citations omitted.)

43    The effect of the authorities is that:

(1)    A person cannot be joined as a respondent to a native title determination application in order to seek a determination of native title in favour of the person or another group over the whole or part of the same area.

(2)    A person may be joined as a respondent to seek to “defensively assert” their native title rights and interests: that is, to protect the native title rights and interests they claim to hold from erosion, dilution, or discount.

44    In her Form 5, Ms Lymburner asserts that areas to the north of Ross River extending to Black River are Bindal country. She appears to contend that the GW People do not, contrary to their claim, hold any native title rights and interests in those areas.

45    It is apparent that Ms Lymburner cannot, in this proceeding, obtain a determination that she as a Bindal person holds native title rights and interests within the GW Claim area. That would require an authorised claim. In the claim that has been authorised, the Bindal People have made no claim over any areas covered by the GW Claim.

46    That means that the best Ms Lymburner could hope to achieve is a determination that the GW People do not hold any native title rights and interests in any areas between Ross River and Black River. A lesser alternative might be a determination that the GW People do not hold some of the rights and interests they claim in some parts of the area they claim. These outcomes would depend upon Ms Lymburner demonstrating that, first, the Bindal hold native title rights and interests in relevant areas and, second, that the Bindal hold those rights and interests to the exclusion of the GW People.

47    Although Ms Lymburner’s Form 5 appears to assert that the Bindal hold native title rights and interests between Ross River and Black River to the exclusion of the GW People, mere assertion is not enough. There is evidence before the Court in the form of Mr Leo’s reports demonstrating a prima facie case that the GW People hold the native title rights and interests they claim in the areas they claim. An evidentiary onus is cast upon Ms Lymburner to produce at least some evidence to the contrary.

48    The evidence Ms Lymburner relies upon indicates that the Bindal People may have native title rights and interests in the GW Claim area between Ross River and Black River. However, that evidence does not suggest that the Bindal People exclusively hold those native title rights and interests, or that the GW People hold no such rights and interests. Ms Lymburner’s evidence is that Con Lymburner told her and other members of her family that Bindal country extends north to Black River, but she has not suggested that he said it was exclusively Bindal country. In fact, in some parts of Ms Lymburner’s affidavit filed on 20 September 2021, she seems to accept that the GW People hold some rights and interests between Ross River and Black River, but asserts that either that the GW People are a subset of the Bindal, or that the GW People cannot claim the area exclusively. While some of the literature concerning Morrill’s life indicates that the Bindal lived or travelled north of Ross River, and may lead to an inference that they had native title rights and interests as far as Black River, it does not suggest that the Bindal were the only group who had rights and interests in that area. The evidence relied on by Ms Lymburner does not suggest that the GW People do not hold native title rights and interests between Ross River and Black River of the kinds they assert.

49    The Form 1 for the GW Claim asserts that the GW People claim some exclusive and some non-exclusive native title rights and interests in the claim area. In areas where the non-extinguishment principle applies, they claim, “exclusive rights to possession, occupation, use and enjoyment of the claim area as against the whole world…”. In respect of the remaining areas, “the native title rights and interests claimed are not to the exclusion of all others”. The non-exclusive rights and interests claimed are to speak for country, to be present on, have access to and use the claim area and its cultural resources, including the rights to traverse, camp, hunt, fish, gather, light fires and conduct ceremonies upon the claim area.

50    It is necessary to assume that the Bindal may ultimately establish that they have some non-exclusive native title rights and interests in the GW Claim area between Ross River and Black River and to consider whether such rights and interests could be affected by a determination in favour of the GW People.

51    I will begin by considering whether any native title held by the Bindal may be adversely affected by the GW People’s claim that they hold non-exclusive rights and interests between Ross River and Black River. In Kokotha, Mansfield J observed that joinder of a person claiming to hold “competing” native title rights and interests to a claim is appropriate where the assertion of those rights and interests may result in the claim, “being less successful than it may otherwise be”. If the Bindal establish that they have non-exclusive native title rights and interests in the GW Claim area, there is no reason to think that may result in the GW Claim for non-exclusive rights and interests being less successful. In other words, even if the Bindal have non-exclusive rights and interests, such as the right to traverse, camp, hunt, fish and gather, that would not mean that the GW People could not establish that they also hold similar non-exclusive rights and interests in the same areas. The evidence proposed to be relied upon by Ms Lymburner does not indicate that the Bindal hold “competing” rights and interests. There is no basis for supposing that evidence produced by Ms Lymburner could defeat the GW People’s claim for non-exclusive rights and interests, or otherwise cause the claim for such rights and interests to be less successful.

52    In addition, a declaration that the GW People hold the claimed non-exclusive native title rights and interests would not subject any rights and interests of the Bindal to, “erosion, dilution, or discount”. While there could be no declaration of any rights and interests of the Bindal, that stems from the fact that there is no authorised Bindal claim over the same area. There is no declaration sought in the GW Claim that the Bindal do not hold native title rights and interests in the parts of the claim area where non-exclusive rights are claimed.

53    However, the position is different in respect of the GW People’s claim for, “exclusive rights to possession, occupation, use and enjoyment of the claim area as against the whole world”. The GW Claim does not specify the particular areas over which exclusive rights are claimed. However, if that claim is successful in respect of some areas between Ross River and Black River, any rights and interests held by the Bindal in those areas would be affected. A declaration that the GW People hold exclusive rights and interests in some areas would involve a determination that the Bindal People do not hold such rights and interests in those areas. Accordingly, any native title held by the Bindal may be adversely affected by the claim over parts of the GW Claim area for exclusive rights and interests.

54    I am not satisfied that Ms Lymburner, “never had…interests that may be affected by a determination in the proceedings”, within s 84(9) of the NT Act. I consider that Ms Lymburner has demonstrated a tenable case that the Bindal hold native title rights and interests in the GW Claim area which may be affected by a determination that the GW People hold exclusive rights and interests. Accordingly, she should not be removed as a respondent.

55    If the GW Claim were only for non-exclusive native title, I would likely have ordered that Ms Lymburner be removed as a respondent. There may or may not eventually be an amendment to the GW Claim to claim only non-exclusive rights and interests. Even so, I want to make it clear to Ms Lymburner that it is no part of my present function to determine whether or not she is a Bindal person and whether or not the Bindal hold any native title rights and interests north of Ross River. While determinations of native title clearly have many beneficial impacts for Indigenous peoples, it must be recognised that they can sometimes produce quite brutal outcomes. There must be a profound sense of loss for people who have grown up identifying as belonging to a particular people and particular country but who are excluded from those people and that country through the native title claim process. Whatever the ultimate outcome, I have no doubt that Ms Lymburner is entirely sincere in her firm belief that she is Bindal and that she and her family hold native title in areas north of Ross River. For what it is worth, I wish to make it clear that I am not in these reasons making any finding to the contrary.

56    For the reasons I have given, the applicant’s interlocutory application to remove Ms Lymburner as a respondent must be dismissed.

Associate:    

Dated:    14 June 2022

SCHEDULE OF PARTIES