Federal Court of Australia

Douglas on behalf of the Kabi Kabi First Nation Traditional Owners Native Title Claim Group v State of Queensland [2022] FCA 966

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 84(8) of the Native Title Act 1993 (Cth) Gubbi Gubbi Dyungungoo Group Inc cease to be a party to these proceedings.

2.    The Interlocutory Application filed by the Gubbi Gubbi Dyungungoo Group Inc on 28 September 2021 be dismissed.

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 by the Native Title Applicant on 22 October 2021 seeking an order that Gubbi Gubbi Dyungungoo Group Inc (GGDG) cease to be a party to the proceedings pursuant to section 84(8) of the Native Title Act 1993 (Cth) (Native Title Act).

2    At the hearing the Native Title Applicant was represented by Counsel, and the GGDG (following the grant of leave by the Court) by its Secretary, Ms Christine Stuart.

BACKGROUND

3    On 31 May 2013 the Kabi Kabi First Nation Traditional Owners claim (QUD280/2013) was filed. On 30 November 2016 the Kabi Kabi Undambi Area native title determination application (QUD908/2016) was filed.

4    On 11 September 2017 GGDG filed a Form 5 – Notice of Intention to Become a Party to an Application in QUD908/2016, and was joined to that matter on 22 September 2017.

5    The applications in QUD280/2013 and QUD908/2016 were combined by order of the Federal Court on 29 November 2018, and thenceforth conducted under file number QUD280/2013. Subsequently the combined proceeding was given an electronic court file proceeding number QUD20/2019. The application area the subject of the native title determination application is an area in south-east Queensland, roughly commencing between Childers and Pialba in the north, as far east as Double Island Point, as far south as the Redcliffe peninsula, and as far west as Goomeri.

6    It follows that at that point GGDG became a respondent to proceeding QUD20/2019.

7    On 7 October 2021 the Native Title Applicant filed a fourth further amended Native Title Determination Application Claimant Application (Application). Importantly the Application included the following amendment provision:

    Schedule B and Attachment B – Amended to exclude from the application the areas covered by Lot 1 on RP 78491; Lot 2 on RP78491; Lot 10 on MCH5117; and Lot 115 on CG2438.

8    I note that on 28 September 2021 GGDG filed an interlocutory application seeking, inter alia, explanation from the Native Title Applicant of the amendment provision in the Application, and recognition of the interests of GGDG (GGDG Interlocutory Application). This application was not before me at the hearing. However, the ongoing utility of the GGDG Interlocutory Application depends on GGDG’s continuing status as a respondent to these proceedings.

9    The present interlocutory application seeking removal of the GGDG as a respondent was subsequently filed by the Native Title Applicant.

SUBMISSIONS AND MATERIAL OF THE PARTIES

10    In summary the Native Title Applicant submitted as follows:

    GGDG is a corporation and accordingly cannot hold native title interests;

    The only rights capable of being held by GGDG are proprietary rights;

    The applicant has amended its Form 1 in the Application to remove two freehold lots and two reserve lots in which GGDG claims to hold an interest, namely;

•    Lot 1 on RP78491;

•    Lot 2 on RP78491;

•    Lot 10 on MCH5117; and

•    Lot 115 on CG2438.

    It followed that GGDG has no remaining interest in the claim area which could be affected by a native title determination;

    GGDG has failed to adduce any evidence as to its interest;

    The Court should exercise its discretion to remove GGDG given its failure to lead evidence;

    The material advanced by GGDG is inadmissible for the following reasons:

•    It is not relevant pursuant to s 56 of the Evidence Act;

•    Contains hearsay statements pursuant to s 59 of the Evidence Act;

•    Contains opinion evidence pursuant to s 79 of the Evidence Act; and

•    Was not prepared for the purposes of this interlocutory application.

11    The Native Title Applicant relied on the following evidence:

    Affidavit of Ms Sheree Sharma dated 1 October 2021;

    Affidavit of Ms Sheree Sharma dated 22 October 2021; and

    Affidavit of Ms Sheree Sharma dated 15 February 2022.

12    I note that Ms Sharma is the lawyer on the record for the Native Title Applicant.

13    Before turning to GGDG’s material, it is appropriate to deal with the Native Title Applicant’s objection to the material on which the GGDG relies. At the hearing, Counsel for the Native Title Applicant submitted that the rules of evidence could be waived and the material admitted into evidence in order to avoid unnecessary expense or delay, citing Starkey v State of South Australia [2011] 193 FCR 450; FCA 456 and Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175. Given that the interlocutory respondent remains an unrepresented litigant, with no written submissions or other material on which it could rely, and that the Native Title Applicant is in a position to address that evidence, I consider admission of GGDG’s evidence in this case to be expedient and efficient. In this respect I note observations made in similar circumstances by Mansfield J in Starkey v State of South Australia [2011] 193 FCR 450, FCA 456 at [31]-[34].

14    GGDG advanced the following arguments at the hearing:

    There is inconsistency with the Native Title Applicant;

    There is an absence of proof of the Native Title Applicant’s ancestral connection;

    The GGDG is a not-for-profit traditional owners’ organisation and has been active in the community for many years; and

    There are discrepancies with the pronunciation of the claim group.

15    GGDG relied on the following material in support:

    Affidavit of Christine Stuart filed on 28 September 2021 in support of the GGDG interlocutory Application; and

    GGDG Interlocutory Application.

16    In her affidavit Ms Stuart stated that the purpose of the affidavit was to outline the concerns of the GGDG as a party and respondent to the Native Title Claim. Annexed to the affidavit was a document entitled “Summary Submission in reference to the Case Management Hearing on September 3 September 2021” signed by Ms Stuart. In that document – essentially submissions rather than evidence – Ms Stuart contended:

    Her group requested to see confirmation of validated proof of the authenticity of claimants being rightfully proven as Gubbi Gubbi descendants and Traditional Owners.

    Her group requested the full reasoning behind the filing of the amended claimant application.

    They question the “constant changes to the people added and removed throughout the life of this claim and who can legitimately speak for country”.

    They request that the Gubbi Gubbi language is recognised, including the modern spelling.

    They are disappointed by the actions of QSNTS.

    The Native Title Applicant continues to represent only itself.

17    Further, a “Summary Submission” was annexed to Ms Stuart’s affidavit, in which Ms Stuart submitted, inter alia:

    “Gubbi Gubbi First Nation” appears to be incorrectly written on the Native Title claim.

    There was a kinship system amongst Aboriginal people throughout the Australian continent.

    Gubbi Gubbi Dyungungoo members believe that for their culture to prosper there needs to be shared zones where they can share knowledge, protect their heritage, and preserve the environment.

18    This document also included what appeared to be commentary on the native title application Form 1 (including comments of “No Change” with respect to aspects of the Form 1).

consideration

19    Section 84 (8) of the Native Title Act provides as follows:

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.

20    The power to order that a person cease to be a party to the proceedings is a broad discretionary power which must be exercised judicially. The touchstone for the exercise of the power is a decision about the interests of justice: North ACJ in TR (Dec’d) on behalf of the Kariyarra – Pipingarra People) v Western Australia [2016] FCA 1158 at [33], Griffiths J in Lewis on behalf of the Warrabinga-Wiradjuri People #7 v Attorney General of New South Wales (No 2) [2021] FCA 1269 at [10], [41].

21    Section 84 (9) of the Native Title Act sets out the considerations for the Court in making a decision to remove a party to the proceedings. Relevantly it provides:

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 proceeding by another party; or

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

22    As Griffiths J explained in Lewis on behalf of the Warrabinga-Wiradjuri People #7 v Attorney General of New South Wales (No 2) [2021] FCA 1269 at [16], relevant principles for the Court to take into consideration in relation to s 84 (9) are:

    an interest sufficient to give a person the right to become a party to an application needs to take into account the fact that a party can in effect veto the process of mediation and conciliation which the Native Title Act favours, which suggests that the relevant interest must not be indirect, remote or lacking substance;

    the nature and content of the right to become a party also suggests that the interests must be capable of clear definition and be of such a character that they may be affected in a demonstrable way by a determination of native title to which the application relates;

    the interest need not be proprietary or even legal or equitable in nature, however, the interest must be “genuine and not indirect, remote or lacking in substance”; and

    a person who has “a special, well-established non-proprietary connection with land or waters which is of significance to that person” may have a sufficient interest.

23    In summary – for a person to remain as a respondent to Native Title proceedings they need to provide evidence that they have a genuine, demonstrable or direct interest in the area, capable of clear definition.

24    In this case the respondent is an incorporated association. Its interests must be capable of being affected by any determination, beyond those held – or claimed to be held – by individual persons who may be constituent members of the association: Adnyamathanha People No 1 v South Australia [2003] FCA 1377 at [34].

25    Turning to the evidence before the Court, I am not satisfied of the existence of any evidence establishing an interest of GGDG in the proceedings beyond that of an ordinary member of the public, much less an interest beyond that of its members. This is particularly so given the amendment of the Native Title Applicant’s Form 1 on 7 October 2021 to exclude Lot 1 on RP78491, Lot 2 on RP78491, Lot 10 on MCH5117 and Lot 115 on CG2438. GGDG plainly has no genuine, demonstrable or direct interest in the area covered by the native title application following the exclusion of the only lots in which GGDG has asserted an interest.

26    I am also satisfied that the removal of GGDG as a respondent is in the interests of justice. While GGDG appears to take issue with aspects of the native title claim, it has not demonstrated any prejudice to its interests should there be a determination of native title in respect of the area now the subject of the native title claim. I also accept the submission of the Native Title Applicant that the removal of GGDG as a respondent party allows the parties to focus on steps to progress the present application, particularly given the undisputed reluctance of GGDG to engage with the Native Title Applicant in relation to resolution of the native title claim.

COSTS

27    Section 85A of the Native Title Act provides:

(1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

Unreasonable conduct

(2) Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.

28    Section 43 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) grants unfettered discretion to the Court to award costs, although a general rule of application is that ordinarily costs follow the event. Section 85A (1) of the Native Title Act modifies the ordinary rule in the Native Title context, although s 85A (2) permits the Court to order costs in circumstances where a party to a proceeding has, by an unreasonable act or omission, caused another party to incur costs: see for example discussion in Combined Dulabed and Malanbarra/Yidinji Peoples v State of Queensland (2004) 139 FCR 96. However, that provision does not limit the Court’s power to make orders under s 85A (1): De Rose v South Australia [2005] FCAFC 137 at [8] - [10].

29    On the day of the hearing of the interlocutory application the Native Title Applicant pressed for costs. In submissions however the Native Title Applicant did not particularise the basis of its claim for costs.

30    Noting that parties to proceedings under the Native Title Act usually bear their own costs, it is plainly incumbent on the Native Title Applicant in this case to demonstrate that costs should be awarded in its favour. On the facts, I am not satisfied that GGDG has, by any unreasonable act or omission, caused the Native Title Applicant to incur costs in connection with the institution or conduct of the proceeding within the meaning of s 85A (2). Insofar as appears from the submissions of Ms Stuart, the members of GGDG genuinely considered that they had a legitimate claim to being a respondent to the proceedings. I have found that they do not, however that GGDG pressed the present litigation does not, in itself, constitute unreasonable conduct. I am also not persuaded that there is any other reason for me to exercise my discretion in favour of the Native Title Applicant otherwise than in accordance with the general proposition recognised by s 85A (1). Certainly no submissions by the Native Title Applicant were made articulating a reason for the Court to exercise its discretion to that effect.

GGDG Interlocutory Application

31    In the GGDG Interlocutory Application GGDG sought the following relief:

1.     Gubbi Gubbi Dyungungoo Group Inc. continuously engages in the community and are Traditional Owners. We suggest that there is room for compromise and propose to move forward.

2.    Gubbi Gubbi Dyungungoo Group Inc. respectfully requires explanation with regards to the constant amendments to the named applicants who represent Kabi Kabi First Nation Traditional Owners Native Title Claim Group.

3.     Gubbi Gubbi Dyungungoo Group Inc. respectfully requests to see confirmation of validated proof of the authenticity of the claimants being rightfully proven as Gubbi Gubbi descendants and Traditional Owners as per recognised ancestral kinship to their connection to Country submitted before the Federal Court of Australia.

4.     Gubbi Gubbi Dyungungoo Group Inc. respectfully requires that no Traditional Owner be excluded from Country.

5.     Gubbi Gubbi Dyungungoo Group Inc. respectfully requests that the Gubbi Gubbi language is recognised including the modern spelling. In 1993, the Gubbi Gubbi Elders including Andrew Ball, Drew Gulash, Clifford Monkland and Evelyn Serico representing the families of the Gubbi Gubbi language group concerned with mispronunciation of their historically written name. After much deliberation, it was settled to change the spelling of their historically written name from Kabi Kabi to Gubbi Gubbi so the language would be pronounced as intended which was recognised at that time.

6.     Gubbi Gubbi Dyungungoo Group Inc. are fully included and recognised equally and officially as a party to the claim with regards to Native Title, as per the governing board, across government (Federal, State and Councils) alongside the names of the claimants as respected representatives of the Gubbi Gubbi people.

32    Plainly, this relief is predicated on GGDG remaining a party to the proceedings.

33    Although the GGDG Interlocutory Application was not before me at the hearing it follows that, given my view that GGDG be removed as a respondent, the GGDG Interlocutory Application should be dismissed as no longer of any utility. I now do so, in the interests of efficiency as contemplated by s 37M of the Federal Court Act.

CONCLUSION

34    For the reasons set out above, it is my view that Gubbi Gubbi Dyungungoo Group Inc. cease to be a respondent.

35    It follows that the GGDG Interlocutory Application be dismissed.

36    There be no orders as to costs.

Associate:

Dated:    19 August 2022