Federal Court of Australia

Hoolihan on behalf of the Gugu Badhun People #3 v State of Queensland [2022] FCA 965

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to sections 84(8) and 84(9)(b) of the Native Title Act 1993 (Cth), Mr Lawrence Flinders Kerr cease to be a respondent party to the Gugu Badhun Native Title Claim (QUD777/2019).

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an interlocutory application filed on 25 June 2021 by the Native Title Applicant seeking the following relief:

1.    That pursuant to subsections 84(8) and 84(9)(b) of the Native Title Act 1993 (Cth), Mr Lawrence Flinders Kerr cease to be a respondent party to the Gugu Badhun Native Title Claim (QUD777/2019).

2.    Alternatively, pursuant to subsections 37P(2) and 37P(5) of the Federal Court of Australia Act 1976 (Cth) and rule 1.32 of the Federal Court Rules 2011, Mr Kerr is to file a notice explaining why he should remain a party to this proceeding. If Mr Kerr fails to file the notice within 10 business days of a date to be notified, he will stand dismissed as a party to the proceeding.

3.    There be no order as to costs.

4.    Such further or other orders or directions as the Court deems appropriate.

2    The Native Title Applicant was represented at the hearing by Mr Yarrow of Counsel. Mr Kerr, the respondent party, appeared in person via video-link.

3    At the interlocutory hearing before me on 7 April 2022 the Native Title Applicant did not press ground 2 of its interlocutory application.

BACKGROUND

4    By Native Title Determination Application (Form 1) filed on 19 December 2019, the Native Title Applicant, being Ernest Michael Hoolihan, Harry Gertz, Narda Kennedy, Hazel Illin and Elsie Thompson, applied for a determination of native title under s 61(1) of the Native Title Act 1993 (Cth).

5    Materially, the Form 1 described the claim area the subject of these proceedings in Attachment B as:

Commencing at intersection of the western boundary of the Upper Burdekin River sub catchment area (Sub Number 1201) and the north western boundary of Lot 575 on Plan PH219 and extending generally northerly along the western boundary of that sub catchment area to its intersection with the northern boundary of the Gregory Developmental Road reserve, also being the southern boundary of the external boundary of the native title determination QUD85/2005 Gugu Badhun People #2 (QCD2012/002); then generally easterly and generally south easterly along the northern boundary of the Gregory Developmental Road reserve to its intersection with the centreline of the Clarke River; then generally south westerly along the centreline of that river to its intersection with the northern boundary of the external boundary of the native title determination QUD80/2005 Gudjala People (QCD2014/006), being a line joining Longitude 145.464464° East, Latitude 19.397699° South and Longitude 145.238141° East, Latitude 19.315069° South; then generally north westerly and generally westerly along the northern external boundary of that determination to its intersection with the western boundary of the Upper Burdekin River sub catchment area, then generally northerly along the western boundary of that sub catchment area back to the commencement point.

This application specifically excludes all land and waters subject to:

•    Native title determination QUD85/2005 Gugu Badhun People #2 (QCD2012/002)

•    Native title determination QUD80/2005 Gudjala People (QCD2014/006)

6    The claim area is located between previous determination areas in Gugu Badhun #2 claim (QCD2012/002) and Gudjala People Core Country Claims #1 and #2 (QCD2014/006 and QCD2014/007).

7    The notification period under s 66 of the Native Title Act ranged from 3 June 2020 to 2 September 2020. During this period Mr Kerr joined the proceedings as a respondent by filing a Notice of Intention to Become a Party to an Application (Form 5).

8    Relevantly, Mr Kerr’s Form 5 attached a letter dated 28 August 2020 describing the nature of his interest and the manner in which that interest may be affected by a Native Title Determination. In that letter Mr Kerr wrote:

Reasons for respondent, 17 May 2019 Report of Anthropologist Dr McGrath was rejected by Gudjala people. Gudjala people’s Rights and Interests to the Area called The Clarke River Catchment process was not represented by legal representation. This neglect of representation of Rights and Interests to Culture and Customs of the Gudjala Nation, as well as legal Rights to Interests in this Clarke River Catchment was neglected or Other reasons for gain.

The Gudjala People believe Dr McGrath’s Report did not include all documents reported to her nor Express a View for Consistency to all Materials given for her report.

We, along with other Common Law Holders who can with consistency of factual documents, and the word is Consistency, show the Federal Court the Full Rights and Interests as well as Culture and Customs of Gudjala People to the Clarke River Catchment and surrounding Areas.

NQLC, expressed that because of both groups may not have any Rights or Interests, that a Hard-line Boundary resolve the issue. NQLC along with Anthropologists did not explore Language, Customs, Culture, views of consistent fellow workers in this research, Dates of History and much more to the Clarke River and Maps especially.

If the Gudjala People had legal representation on the 17 May 2019, this neglect to the Clarke River Catchment may have had a different outcome. Gudjala’s rights and interests to the Clarke River Catchment may have broken the light of day to rights and interests and with the evidence would have challenged Dr McGrath’s report to the Clarke River Catchment and with the Maps, show that Hard-line Boundary favoured Gudjala.

The facts of Maps, Three documents and others as well as Leichardt 1845, a appose to 1861 facts and Watersheds, Water Catchments, Dividing Ranges have all have Consistency, which we Gudjala can prove that this did not occur in Dr McGrath’s Report.

We believe the Federal Court Needs to view said evidence and make sure that the Rights and Interests to Culture and Customs as Custodians are in true hands.

9    On 3 September 2020 an Order was made by the Registrar confirming Mr Kerr’s status as a respondent in this proceeding.

10    On 16 June 2021 the Native Title Applicant filed the present interlocutory application seeking an order that Mr Kerr cease to be a party.

11    On 13 July 2021 I made orders requiring the Native Title Applicant and Mr Kerr to attend a confidential and without prejudice mediation before a Registrar - Native Title. The parties were unsuccessful in reaching an agreement at that mediation, and the application came before me on 7 April 2022 for hearing.

SUBMISSIONS OF THE PARTIES

12    In summary, the Native Title Applicant’s submissions are as follows:

    Mr Kerr has failed to establish a tenable defensive claim;

    It is impossible on the evidence of Mr Kerr for the Court to be satisfied that Mr Kerr has any genuine direct interest;

    The Court has a broad discretionary power to order a person be removed as a party to a native title determination application;

    Where a respondent opposes a native title determination application on the basis that they are the proper native title holder, they may only do so in an individual capacity and to the extent that they defensively assert their native title rights and interests;

    Such an interest must be genuine and not indirect, remote or lacking in substance and must be more than an emotional conscientious, ideological or intellectual kind;

    Mr Kerr has not identified any traditional laws or customs observed by the Gudjala People nor is there any evidence that any Gudjala ancestor has been identified as associated with the subject claim area; and

    Mr Kerr’s affidavit evidence filed 12 July 2021, 20 September 2021 and 29 November 2021 is insufficient, inadequate, incoherent, and does not identify an arguable basis for the existence of Gudjala native title interests in the subject claim area.

13    In summary, I understand Mr Kerr’s position to be as follows:

    The Gudjala people hold native title in the Gugu Badhun #3 claim area, specifically in relation to the Clarke River Catchment;

    Mr Kerr is an “Expert and Professional Keeper of Culture and Others in continuity” in his culture;

    Evidence given by Dr McGrath does not accurately reflect native title rights and interests of Gudjala People;

    There is an issue with the redacted version of the Connection Report;

    There is no modern continuity of culture and custom over the land and water subject of the Gugu Badhun #3 claim area;

    The Gugu Badhun #3 claim area requires further research;

    There have been procedural violations; and

    There has been neglect, malpractice, deception, bias and plagiarism amongst Native Title Caretakers.

RELEVANT EVIDENCE

Evidence of the Native Title Applicant

14    The Native Title Applicant filed and relied upon a number of affidavits in support of its application, namely:

    Affidavit of Andrew (Smokey) Anderson filed 15 June 2021;

    Affidavit of Harry Getz filed 15 June 2021;

    Affidavit of Cheryl Ann Thomson filed 16 June 2021;

    Affidavit of Cheryl Ann Thomson filed 28 October 2021;

    Affidavit of Luis Arturo Aguilar Lopez filed 29 October 2021; and

    Affidavit of Luis Arturo Aguilar Lopez filed 9 December 2021.

Andrew (Smokey) Anderson

15    In summary, Mr Anderson deposed in favour of the interlocutory application as follows.

16    Mr Anderson is a Gudjala man and a descendant of Topsy Hann, an apical ancestor for the determined Gudjala People Core Country Claim #1 and the determined Gudjala People Core Country Claim #2.

17    At [11]-[12] of his affidavit Mr Anderson deposes that he learnt about Gudjala country from Gudjala elders, and years of mustering on the land. On Mr Anderson’s evidence, the Gugu Badhun #3 claim area is not Gudjala Country. Gudjala Country stops at the Clarke River.

18    Although Mr Anderson did not attend the following meetings, he deposes that on 17 May 2019 there was a Gudjala community meeting with Dr Pam McGrath, independent expert anthropologist for the North Queensland Land Council Aboriginal Corporation (NQLC), who presented her early findings in relation to the #3 claim area. There was a subsequent meeting on 13 June 2019 between the Gudjala People, Gugu Badhun People and Ewamian People to discuss the boundary of the Gugu Badhun #3 claim area.

19    Finally, Mr Anderson deposes:

15.     On 8 August 2019 I travelled to Greenvale to take part in a four day field trip to the claim area. The group was made up of Dickie Davidson, Gugu Badhun people, I can’t recall at this time who they were, Dr Pam McGrath, Louis Lopez and myself.

16.     I remember while on this field trip, Dickie and I were sitting in a creek bed having a smoko and Dickie saying to me that he, “didn’t care about this country because it wasn’t his country”’.

17.     The current claim area is not Gudjala country it is Gugu Badhun country and belongs to the Gugu Badhun people. I learnt this from my elders, Uncle George Reid, Uncle Bob Masso, Uncle Denny Masso, Uncle Lester Kerr and Aunty Doris Kerr, Uncle Sam Saturday, Lilly Anderson and Aunty Ann Masso, who have since passed on.

Harry Gertz

20    Mr Gertz, a member of the Native Title Applicant, gave evidence in similar terms to Mr Anderson. Mr Gertz gives further detailed evidence as to the meeting that took place in June 2019. Relevantly, he deposed:

7.     Prior to the Gugu Badhun #3 native title application being authorised I, and other Gugu Badhun elders attended a meeting with neighbouring groups, the Gudjala and Ewamian people to talk about Gugu Badhun country and where it went to and what were the boundaries.

8.     I remember that in June 2019, a meeting was held in Townsville between the Gugu Badhun, Gudjala and Ewamian people to discuss our boundaries. Mr Kerr was in attendance at this meeting.

9.     At this meeting the Gugu Badhun and Gudjala People were well represented. There was talk about where the Gugu Badhun/ Gudjala boundary was situated. From memory we discussed the Clarke River catchment area and the Clarke River itself. Gugu Badhun has always maintained that our boundary in this area of the Gugu Badhun #3 native title application is the Clarke River.

10.     Mr Kerr maintained the area up to catchment of the Clarke River should be noted as Gudjala; at the time of the meeting Mr Kerr did not offer any explanation as to why he maintained the Gugu Badhun/Gudjala boundary should be at the catchment area of the Clarke River.

11.    It was agreed between the Gugu Badhun and Gudjala people present that day that the boundary would be the mid line of the Clarke River. Mr Kerr was the only person who did not agree with the decision. He did not offer any explanation of why he disagreed with the outcome.

21     In support of the evidence given by Mr Anderson, Mr Gertz recalls during the field trip in August 2019 at [12]-[14]:

12.     In early August 2019, Richard Hoolihan, Narda Kennedy, Joanne Boyd and I representing Gugu Badhun people, were part of a group involved in an on country site visit to the area around the Clarke River catchment and the Clarke River. The site visit took place over three or four days.

13.     Dr McGrath the report writer and Mr Luis Lopez of the North Queensland Land Council (NQLC) were also present. Mr Smokie Anderson and Mr Dickie Davidson also attended to represent the Gudjala people.

14.     I remember Smokie and Dickie saying the area around the Clarke River catchment and the northern side of the Clarke River was not their country. They had both spent many years working on cattle stations in the area, and they both know the country well.

22    Mr Gertz concludes his evidence by stating at [16]:

Mr Kerr has gone against other Gudjala people and what was agreed at the meeting in June 2019 by becoming a respondent to the Gugu Badhun native title application.

Cheryl Ann Thomson

23    Ms Thomson is a Senior Legal Officer employed by NQLC and solicitor on the record for the Native Title Applicant in this proceeding.

24    Ms Thomson’s evidence included that on 30 November 2019 an information and authorisation meeting in relation to the Gugu Badhun #3 claim took place and the claim was subsequently advertised in the Townsville Bulletin newspaper.

25    Ms Thomson deposes that on 21 May 2021, prior to the filing of this interlocutory application, a confidential and without prejudice negotiation took place with Mr Kerr seeking to resolve the issues raised by Mr Kerr. A further confidential and without prejudice Court ordered mediation took place on 25 August 2021. Neither attempts were successful.

Luis Arturo Aguilar Lopez

26    Mr Lopez holds a Bachelor of Arts (Honours) in Anthropology and Sociology and has been in the employ of NQLC as an anthropologist since 2016.

27    In January 2017 Mr Lopez was assigned in-house anthropological research into the area which is now covered by the Gugu Badhun #3 claim.

28    In October 2018, the NQLC retained Dr Pamela McGrath as an independent expert anthropologist to undertake field and desktop research and provide preliminary anthropological advice about native title interests in the unclaimed area proximate to the existing native title determinations for the Gugu Badhun People, Gudjala People and Ewamian People. Mr Lopez worked closely with Dr McGrath and liaised with traditional owners in the course of that assistance.

29    Dr McGrath presented her preliminary findings regarding the research area to the:

(a)    Ewamian People in person in Mareeba and by Zoom videoconference to Ewamian People in Brisbane on 15 May 2019;

(b)    Gugu Badhun People in Townsville on 16 May 2019; and

(c)    Gudjala People in Charters Towers on 17 May 2019.

30    Mr Lopez deposes that Dr McGrath’s preliminary finding included consideration of Mr Kerr’s claims of the Gudjala People’s native title rights in the research area, specifically north of the Clarke River. Mr Lopez believed from his understanding of the Gudjala People that Mr Kerr was a Gudjala person. Mr Lopez observed at the meeting on 17 May 2019 that Mr Kerr and other Gudjala People present were critical of Dr McGrath’s preliminary opinion. Mr Lopez goes on to explain that:

17.     Mr Kerr and other Gudjala People present at the 17 May 2019 meeting were critical of Dr McGrath’s opinion that Gudjala People do not have rights north of the Clarke River and asserted their interests in at least the Clarke River catchment area within the Research Area. The Gudjala People resolved to request the NQLC to hold a meeting of Ewamian, Gudjala and Gugu Badhun People at Greenvale to discuss the boundaries and reach agreement, with an invitation to be extended to Dr McGrath to attend that meeting.

18.     On 29 and 30 May 2019, NQLC attended meetings with the board of directors for the Ngrragoonda Aboriginal Corporation RNTBC (this is the RNTBC for the Gudjala People). These meetings were also attended by the nominated Gudjala representatives who were on a negotiating team considering the proposed DoD Greenvale ILUAs. The purpose of these meetings was to further discuss Dr McGrath’s preliminary opinion that the boundary between the Gugu Badhun People and the Gudjala People in the eastern section of the Research Area was the Clarke River watercourse. Trish Holding, Dr McGrath and I attended these meetings. To the best of my recollection, Mr Kerr attended at least one of these meetings.

19.     On 13 June 2019, the boundary negotiation meeting, which the Gudjala People resolved to attend at their earlier meeting of 17 May 2019, took place. This meeting took place in Townsville with Gugu Badhun, Gudjala and Ewamian representatives. Dr McGrath and I attended this meeting. Mr Kerr also attended the meeting.

20.     At the 13 June 2019 meeting, NQLC staff explained the background that led to the boundary meeting, the points of disagreement between the groups and the scope of the discussion for the meeting. Dr McGrath explained the evidence that she had considered and reiterated her findings. A key point discussed at the meeting was whether the boundary between Gudjala People and Gugu Badhun People within the Research Area should be the Clarke River watercourse or the northern edge of the Clarke River catchment.

31    Further, at [22]-[23] of his affidavit sworn 29 October 2021 Mr Lopez deposed in relation to that meeting on 13 June 2019:

22.     At the 13 June 2019 meeting, the Gugu Badhun and the Gudjala people considered the question of their traditional boundary in the eastern reaches of the Research Area in the vicinity of the Clarke River. The majority of the Gudjala People and all the Gugu Badhun People at the meeting agreed that the Clarke River watercourse was the boundary between the Gugu Badhun and Gudjala country within the Research Area.

23.     Annexed as LAAL01 is a true copy of the signed map representing the agreement between the representatives of the Ewamian, Gudjala and Gugu Badhun People from the boundary negotiation meeting on the 13 June 2019. This map was signed by the following attendees nominated by representatives from each group to be the map signatories:

(a)     David Hudson (Ewamian);

(b)    Ken Georgetown (Ewamian);

(c)    Richard Hoolihan (Gugu Bahdun);

(d)    Harry Gertz (Gugu Badhun);

(e)    Elizabeth Santo (Gudjala);

(f)    Patricia Kennedy (Gudjala);

(g)    Patricia Dallachy (Gudjala); and

(h)    Bennett Meeks (Gudjala).

32    After this meeting, Dr McGrath continued her research and conducted additional interviews in June and September 2019, followed by an on-country fieldwork in the Research Area. Relevantly Mr Lopez deposes at [24]:

…Dr McGrath also conducted on-country fieldwork in the Research Area for six days with five Gugu Badhun and two Gudjala People between 6 to 12 August 2019. I attended some of these interviews with Dr McGrath and assisted her during the on-country fieldwork, at which I was present. From my knowledge of the Gudjala people and their native title assertions, it is my opinion that that [sic] the Gudjala People who attended the on-country fieldwork were knowledgeable individuals about the Research Area. During the on-country fieldwork I observed those knowledgeable persons to say that those parts of the Research Area east of the Great Dividing Range watershed and west of the Clarke River watershed to be within Gugu Badhun country.

33    During the course of this work, Mr Lopez was instructed by Ms Thomson to make several redactions to the Gugu Badhun Connection Report in order to preserve culturally sensitive information. Mr Lopez annexed to his affidavit filed 9 December 2021 a copy of that redacted report.

Evidence of Mr Kerr

34    Mr Kerr filed the following affidavit material on which he sought to rely:

    Affidavit of Lawrence Flinders Kerr filed 12 July 2021;

    Affidavit of Lawrence Flinders Kerr filed 20 September 2021;

    Affidavit of Lawrence Flinders Kerr filed on 29 November 2021;

    Affidavit of Lawrence Flinders Kerr filed on 13 January 2022 (refiled 5 April 2022);

    Further Affidavit of Lawrence Flinders Kerr filed on 5 April 2022; and

    Affidavit of Lawrence Flinders Kerr filed on 6 April 2022.

35    At the hearing counsel for the Native Title Applicant took objection to much of Mr Kerr’s evidence in this proceeding. These objections related to Mr Kerr’s evidence being mostly comprised of submissions, with only 4 components qualifying as evidence. Relevantly, counsel submitted:

The affidavit filed 12 July 2021 paragraphs 5 to 8, 11 to 12 and 14 are probably evidence. The balance are objected to as probably being submissions.

The affidavit filed on 20 September 2021, in my submission, the whole is submission.

The affidavit filed 29 November 2021 only paragraphs 11 to 13 are evidence.

The whole of the 13 January affidavit, in my respectful submission, is submission. I make no objection to the affidavit filed on 5 April 2022.

In the short time I’ve had to review last night’s affidavit the body of the affidavit are probably submissions and I take no objection to the documents annexed to the affidavit.

36    Upon reading that material, I consider that much of the content of Mr Kerr’s affidavits can properly be described as submissions rather than evidence. However given that Mr Kerr is a litigant in person, and that the purpose of the interlocutory application is to have him removed as a respondent, I consider it appropriate for present purposes to allow him to advance the case he considers most favourable to his position. Accordingly, for the purposes of the interlocutory application I permit Mr Kerr to rely on his evidence filed in these proceedings.

37    The material however does little to enlighten the Court as to Mr Kerr’s alleged interest in the claim area. At paragraphs [5]-[8], [11]-[12] and [14] of his affidavit filed 12 July 2021 Mr Kerr deposes:

5.     In 2017, NQLCAC/RNTBC sent out letters to Gudjala People about Gugu Badhun land claim. Steven Harris, Alice Fischer (Meeks) were in attendance. NQLCAC/RNTBC showed a Map, in this Map, the boundary fell short of the Clarke River Catchment. I understand boundaries can be shortened or extended, depending on the circumstance. As we now have the shorten boundary extended to this side of the Clarke River; and shortened to the One Area, Gugu Badhun People #3 Application.

6.     17 May 2019 Gudjala Community Meeting Dr McGrath’s Findings and Who NQLCAC/RNTBC is going to represent. The word represent means legal representation in all respect to Native Title Matters. It was Dr McGrath who announced that we are going to represented Gugu Badhun, (was it her authority)?

7.     As Guests, Trish Holding, legal and Facilitator for Gudjala to the Department of Defence Greenvale Project under legal contract, but representing NQLCAC/RNTBC. Why was Ms Holding’s interest and capacity, at the Meeting. Megan external lawyer under directions of Julia (Jules) Taylor Senior Legal Office-Legal Officer Coordinator.

8.     Mr Ducksbury CEO/NQLCAC/RNTBC States: “For other non-DoD native title business of NAC, Jules will continue to work with you with the assistance of David Jesudason for matters as they arise”. Jules wasn’t at the 17 May 2019 and apology for Jules was given, but Mr David Jesudason was present at the 13 June Meeting and didn’t approach any Gudjala person to see if we needed legal advice.

9.     Mr Luis Lopez in house anthropologist, what was Mr Lopez capacity and interest.

10.     Dr McGrath had interest to explain the Research outcome in the capacity as an Officer of NQLCAC/RNTBC anthropologist.

11.     Dr McGrath spoke to her evidence for Gugu Badhun, and there were Gudjala People who disagreed, Patsy Dallachy, Alice Fischer (Meeks) and myself.

Our debate was so strong that, Dr McGrath’s Report was rejected by Gudjala People at this Meeting.

12.     The fact that the language changed from Rights and Interests to Hard Line Boundaries Concerned, Gudjala members to the extent, Dr McGrath spoke to Gudjala needed to seek legal advice for shared country with Gugu Badhun. I ask NQLCAC/RNTBC, was it the authority of an anthropologist, to give Gudjala People legal advice to seek legal advice when Trish Holding was present. (in what capacity).

The rush to having a three way meeting with Ewamain, Gugu Badhun and Gudjala was rushed in my opinion. Gudjala had no legal representation to seek legal directions or slow things down until Gudjala People, had time for an understanding to due process.

13.     Background Lawrence Flinders Kerr Yilba Language Burra Group through Cissie McGregor Gudjala Lily Kerr (McGregor/Smith/McDonald) English names. Lily and Nellie Children of Cissie Smith/McGregor, born St Pauls Station near the Burdekin Dam, which is not in Gudjala Country, Gugu Badhun Full Blood Lake Lucy Gugu Badhun Country on the Kerr ancestry.

14.     I am a Cultural Person with cultural knowledge in the Area Gugu Badhun People #3 application. I have in my position, continuity to the Area for possible rights and interest for Gudjala, and to the Whole Area. Without due process for legal representation as I expressed. It wasn’t afforded rights and interests to my knowledge, and I believe it was suppressed, causing injury, and maybe a neglect to due process. 15.     To Sum up my being a Respondent, the serious issues are:

    (a)    NQLCAC/RNTBC as a Business and Native Title Trustee, Gugu Badhun #3 Claim Area. What was the legal representation due process, duty of care, good faith to as Trustee’s in under NQLCAC/RNTBC Business and Trustee /Acts and Common Law.

16.     Dr McGrath’s Maps and Hard Line Boundaries need to be factual viewed and clarified by a Federal Court appointee for possible due process violations. One may have expected that when making an argument for Hard Line Boundaries, One Must have qualifications, such as a Degree. The other process in qualification that may be accepted is, making decision up to enough a Court recognised stranded.

If NQLCAC/RNTBC wish to remove myself as a respondent, I seek leave to the Federal Court of Australia for NQLCAC/RNTBC to seek a second opinion from an independent Geologist to view the Area for Hard Line Boundary Outcome. It will satisfy myself to one issue and the factual evidence will speak for what it produces,.

38    Mr Kerr’s evidence in his affidavit of 13 January 2022 identifies language given to Dr Sutton, who Mr Kerr identifies as a linguist, by the Gudjala People. Mr Kerr does not annex any findings of Dr Sutton or material in support of Mr Kerr’s connection with the claim area.

39    The reminder of this evidence goes into further detail as to his concerns regarding an alleged violation of due process, stating at [8]:

8.     Dr McGrath (professional anthropologist) is not reporting Dr Suttons’ finding and knowing of Dr Sutton because in Dr McGrath’s Gugu Badhun Connection Report, Dr Sutton is mentioned several times, and not any mentioned of the southern border of Gugu Badhun. Dr McGrath is not reporting this Most Important Fact, is reasonable doubt to a professional Gugu Badhun connection or continuity to Any Lands that goes beyond the southern border to the Joining (junction) Burdekin and Clarke River, (doubtful).

40    Mr Kerr concludes at [16]:

This is Part of NQLCAC/RNTBC beyond any reasonable doubts trust faith, duty of care, good faith, neglect, malpractice, deception, Reasonable Doubts to Gugu Badhun People’s #3 Application followed due procedural processes without violations, presumption, coercion.

41    At paragraphs [11]-[13] of Mr Kerr’s affidavit of 29 November 2021 he deposes:

11.    In the Form 5 to becoming a Respondent, I stated, anthropologist Dr McGrath’s Report was rejected by Gudjala People. Gudjala People’s Right’s and Interests to the Area called the Clarke River Catchment process was not represented by legal representation. I also suggested to legal representation to rights and interests to to Gudjala Nation.

12.    I also in my Form stated I believed Dr McGrath;s Report did not include all documents reported to her nor, nor expressed a view for consistency to all material given in her report. (no legal representation)

13.     In Form 5, I also state, factual documents of consistency, to Rights and Interests for Gudjala People to the Clarke River Catchment and Surrounding Areas. (no legal representation)

42    Further, in Mr Kerr’s affidavit of 5 April 2022 filed at 1.57pm and sworn 1 April 2022 he deposes as to his connection with the #3 claim area as follows:

My connection to the #3 Area has Cultural Continuity Connection from Apical to Ceremoney, Gudjala, Yilba, passed down as known 1870’s 1880’s as records also complements.

Lets deal with the first inst; Dr McGrath was informed of the Kerr’s connection to the now Determination #2 Area of Gugu Badhun.

Dr McGrath in part had been informed of Kerr’s connection to what is called Lake Lucy.

This is now the Full account of Kerr’s Connection.

Thomas James Kerr was born in Sydney 1861, dued 1940 buried Charters Towers.

Thomas and his siblings Harry, Patrick, Billy, Andrew and Father Thomas Lynch Kerr were at sometimes in the Lake Lucy, Valley of Lagoons, all Stations in the Area, and also to the South and North.

Fred Toomba.

Mr Toomba was born in Gudjala Country and a Keeper of Languages, his father was also named Fred and his mother was Daisy, (Fred Sr; was also known as Jimmy).

Handed down knowledge talked about Fred SR; is a Yilba Custodian, and speakin the language, as toomba iin Tilba means Forest Wallaby.

Fred Toomba has given 173 words to the Gudjala language and had knowledge of the location of Northern Native Title group positions.

Mr Toomba related to myself, that the Warrungu (Alf Palmer) the Wairruna plains Pelican Range to Montgomery Range belong to Warrungu People.

In the Area#3, in 1967-69 Uncle Fred Toomba, Uncle Lester and Doris Kerr, along with myself, Violet Kerr, Reggie Kerr, Karleen Kerr, Jackie Kerr, Nathan Kerr Mum Kathleen and Van Coleman were at Pandanas.

The elders went into Montgomery Range, where we were smoked or cleansed, and while there Uncle Fred shared his Knowledge of Country.

Shared knowledge of language, clans related to Areas, and he pointed to the North and said Gudjal, then to the East as far as the far Eastern Range, Gudjal, South Gudjal where they joined Yilba being his Fathers Country.

I can remember to the best of my recollection, there were strange circles of rocks, and two Huge laid down Rocks with Caves.

While there, Myself along with my sister Violet and Cousin Keith Kerr, and you will think we were silly. When we went into the Cave, there were Three Animals, Kagara(kangaroo), Gundulu(Emu) and Munda(Snake). This you may think nothing wrong with this, but what happened next I still don’t believe myself, We three started talkin to the Animals and they were talking back.

When we told the elders, they did believe us, for the spirits were letting us know that we were connected to three way Areas.

When the mob came home, strange things started to happen, cloths were flying off the line, spirit legs fell out of trees.

There are Paintings at Turtle Rock in the Field Training Area (near Dotswood Station) they are the same paintings Uncle Fred showed us in the North of Clark River.

(errors in original)

43    Mr Kerr completes this affidavit by stating:

I have more to share with you, but I have to have permission from Gudjala.

44    At the hearing, no further written evidence was advanced by Mr Kerr.

consideration

45    Section 84 of the Native Title Act describes the manner in which parties can be joined or removed in relation to s 61 native title determination applications. Relevant to this interlocutory application, ss 84(8) and 84(9)(b) of the Native Title Act provide the basis on which parties other than the applicant can cease to be a party to the proceeding, namely:

84 Parties

…

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:

    …

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

46    Notably, s 84(8) of the Native Title Act vests in this Court a wide discretionary power to remove a party other than the Native Title Applicant from the proceedings; TR (deceased) on behalf of the Kariyarra – Pipingarra People v State of Western Australia [2016] FCA 1158 at [33]; Butterworth on behalf of Wiri Core Country Claim v State of Queensland [2010] FCA 325, [11]-[12]; Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 5) [2014] FCA 650; Alvoen on behalf of the Wakaman People #3 v State of Queensland [2019] FCA 1469 at [31].

47    A determination of native title can only be made if there is a native title application for determination presently before the Court; Williams on behalf of the Githabul People v State of Queensland [2022] FCA 569 at [17]; Moses v Western Australia (2007) 160 FCR 148 at [18]. It follows that a determination cannot be made in favour of a party who is simply a respondent to a native title determination application: Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [18]; see also TR (Deceased) on behalf of the Kariyarra Pipingarra People v State of Western Australia [2016] FCA 1158 at [28]; Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369 at [21].

48    However, a person who joins a native title determination application as a respondent may remain a respondent to that proceeding in order to defensively assert their native title rights and prevent erosion, dilution or discount of that interest; Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [18]: TR (deceased) on behalf of the Kariyarra – Pipingarra People v State of Western Australia [2016] FCA 1158 at [38]. In the face of an application to remove a person as a respondent, such as in this case, White J said in Miller v South Australia (Far West Coast Sea Claim)(No 2)[2018] FCA 599 at [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: Far West Coast Native Title Claim v South Australia (No 5) [2013] FCA 717 at [37].

(emphasis added)

49    Further, in TR (deceased) on behalf of the Kariyarra – Pipingarra People v State of Western Australia [2016] FCA 1158 North ACJ observed that:

[33]      The power to order that a person cease to be a party to the proceedings is a broad discretionary power. It must, however, be exercised judicially. In the end, the touchstone for the exercise of the power is a decision about the interests of justice.

[34]     In the exercise of the power a significant factor is the nature of the interest claimed by the party to be removed.

[35]     The interest must be capable of clear definition, not be indirect or lacking in substance. It must be of such a nature that it may be affected in a demonstrable way by determination of native title: Byron Environment Centre Inc v Arakwal People [1997] FCA 797 ; 78 FCR 1 per Black CJ at 7G, Lockhart J at 19C and Merkel J at 42D-E.

(emphasis added)

50    I am not satisfied that Mr Kerr has materially articulated the nature of his interest in the determination area the subject of the substantive Native Title claim, or the manner in which any interest could be affected by a native title determination.

51    Mr Kerr’s primary submission appears to be that the Gudjala People rejected the anthropological evidence of Dr McGrath during her preliminary research into the claim area. However, the evidence of the Native Title Applicant (in particular that of Mr Lopez) is that an agreement had been reached between representative members of Ewamian, Gudjala and Gugu Badhun People at the boundary negotiation meeting that took place on 13 June 2019. At that meeting, which Mr Kerr attended, Dr McGrath presented her research findings to the representatives, including that the boundary was the Clarke River watercourse and that traditional Gudjala country did not include any area north of the main channel of the Clarke River. Evidence before the Court is that all Gugu Badhun representatives and a majority of Gudjala representatives agreed with this proposition.

52    To that extent there has been no “rejection” of anthropological evidence of Dr McGrath.

53    Ultimately, the evidence of Mr Kerr does little to establish any genuine, personal interest in the Gugu Badhun #3 claim area. In his affidavit of 12 July 2021 Mr Kerr’s own summary of “serious issues” referable to his participation in the proceedings concerned his dissatisfaction with “process”, rather a defensive assertion of his native title rights and the prevention of erosion of those rights. In neither his evidence nor oral submissions does Mr Kerr substantively address the expert evidence of Dr McGrath which has been accepted by the Native Title Applicant and, it appears, Gudjala representatives.

54    I am not persuaded that Mr Kerr has sufficiently demonstrated an interest in the Gugu Badhan #3 claim area which may be affected by a determination in these proceedings. Consequently, I am not satisfied that Mr Kerr has a tenable defensive claim to justify his continuing status as a respondent to these proceedings.

CONCLUSION

55    For the reasons set out above, I am of the view that Mr Kerr should cease to be a party to the proceeding.

Associate:

Dated:    19 August 2022