Federal Court of Australia

Baker on behalf of the Muluridji People #3 v State of Queensland [2023] FCA 120

ORDERS

THE COURT ORDERS THAT:

1.    Ms Keating be removed as a Respondent to these proceedings.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

INTRODUCTION

1    On 14 November 2018, the applicant, on behalf of the Muluridji People, commenced these proceedings for a determination of native title (Muluridji #3). The application covers land in the tablelands west of Cairns, more accurately described as Lot 138 on DA436 and that part of Lot 170 on CP887723 not covered by QI2015/040, on the Atherton Tablelands, North Queensland.

2    Ms Ann-marie Keating is the only Indigenous Respondent to Muluridji #3. Ms Keating is also a respondent to QUD811 of 2018, Errol Neal & Ors on behalf of the Djungan People #5 v State of Queensland. Ms Keating became a respondent to Muluridji #3 by filing a Form 5 during the notification period under s 66 of the Native Title Act 1993 (Cth) (NTA), which was subsequently confirmed by a Registrar of the Court. The joinder of a party during the notification period is as of right if a person asserts that his or her interests in relation to land or waters may be affected by the determination of the proceedings and a Form 5 is filed regularly: NTA ss 84(3)(a)(iii) and 84(3)(b)(i).

3    The applicant seeks an order under s 84(8) NTA that Ms Keating, cease to be a party to the proceeding or, alternatively, an order giving judgment for the applicant against Ms Keating in relation to the whole of the proceeding pursuant to s 31A(1) of the Federal Court of Australia Act 1976 (Cth).

4    Sections 84(8) and 84(9) provide:

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.

5    By her Form 5, Ms Keating asserts her interest in the claim area of the proceeding and how that interest would be affected by a native title determination by asserting

After attending the consultation meeting where I tabled the attached letter (Appendix A), my family group who is the knowledge holder of the shared area with the Baker family (Clancy Baker) has been excluded by the North Queensland Land Council (see attached Tindale Genealogy and Certificate of Exemption).

As the representative for my family, we will not join a claim with persons who do not meet the application requirements as persons of the area, a registered sex offender [name redacted] and person of no blood link as outlined in Appendix A (Neville Sheppard) and attached affidavit by the father of Raelene Madigan and person facing fraud charges [name redacted].

Joining as a party ensures our cultural knowledge is protected as by the deliberate exclusion of my Grandmother identified in the Tindal Genealogy – MABEL, as a minority our views, rights and cultural interests will be heard.

6    The applicant contends it is impossible for the Court to be satisfied “of the existence of a genuine, demonstrable or direct interest which might be affected by a determination of native title” on Ms Keating’s part, as the test was articulated by Jagot J in Gomeroi People v Attorney-General (NSW) [2013] FCA 81 at [23].

THE application

7    The applicant relied on two affidavits, one of Ms Louise Keepa filed on 19 August 2022 (Aff-LNK) and one of Mr Luis Lopez filed on the same date.

8    Ms Keating was self-represented. Although she conceded she had been ordered on 22 August 2022 to file any affidavit material on which she wished to rely by 7 October 2022, she did not file any evidence but relied on her written and oral submissions. She accepted that she had read all of the material relied on by the applicant, including the applicant’s written submissions.

9    On 17 May 2022, the applicant wrote to Ms Keating asking her to consider voluntarily withdrawing from the proceedings (Aff-LNK, Annexure LK-02). Ms Keating did not respond to that letter (Aff-LNK at [9]). On 25 July 2022, the applicant wrote again to Ms Keating, foreshadowing the present application and requesting further evidence to substantiate her interest in the claim area (Aff-LNK, Annexure LK-03). Again, there was no response (Aff-LNK at [11]).

10    As submitted by the applicant, it can be inferred from Ms Keating’s failure to respond to the applicant’s request for further evidence in support of the interest she asserts in Muluridji #3, together with her failure to comply with the Court’s order of 26 August 2022, that no such further evidence exists.

MS KEATING’S asserted interest

11    Ms Keating is herself a Muluridji woman. She is necessarily included in the claim group. She may “defensively assert” her native title rights and interests to the extent it is necessary to “protect the native title rights and interests [she claims] to hold from erosion, dilution, or discount by the process of the Court determining” the native title application: Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [17] – [18] per Reeves J. Ms Keating does not assert that she has native title rights and interests beyond those alleged by the Muluridji People and which are the subject of Muluridji #3.

12    Further, as observed in Bonner at [19] per Reeves J, a person in such a position, joined as a respondent party, cannot use the status as respondent as an avenue to a determination of native title in that person’s favour. Section 61 of the NTA is the only available avenue for such a determination: see Commonwealth of Australia v Clifton [2007] FCAFC 190; 164 FCR 355; Moses v Western Australia [2007] FCAFC 78; 160 FCR 148. Consequently, such a person cannot act in a representative capacity on behalf of others: Bonner at [19] per Reeves J. In so far as Ms Keating asserts in the Form 5 that she represents her family group, that assertion cannot be maintained.

13    It is well established that an interest sufficient to resist removal under s 84(9)(b) must be “genuine”, “not indirect, remote or lacking in substance”, “capable of clear definition” and “of such a character that [the holder of the interest] may be affected in a demonstrable way by a determination”: Byron Environmental Care Inc v Arakwal People [1997] FCA 797; 78 FCR 1 at 7 per Black CJ. It must also be more than an interest of “an emotional, conscientious, ideological or intellectual kind”: Arakwal People at 7 – 9.

14    Ms Keating’s asserted interest in the native title determination application is threefold.

15    First, it is to maintain what might be described as the integrity of the claim group. She asserts that there are people within the claim who are not Muluridji. Her concern is as to the accuracy of the native title claim process and that the Court process is being used to undermine traditional custodians by being “forced to have them part of our tribal group”. She claims that the consequence of the inclusion of those who are not Muluridji is to exclude her and her family from the decision-making process of the claim group because she is overruled by those who, she asserts, constitute an illegitimate majority. In this way, Ms Keating says her rights to speak about her laws and customs and share her cultural knowledge have been impinged. For that reason, she states in her Form 5 that she and her family members will not join the claim.

16    As has already been observed above, Ms Keating agreed that she is a Muluridji person. There is presently no suggestion that the native title determination application has not been properly authorised within the meaning of s 251B of the NTA. Whether other members of her “family group” as described in her Form 5 are also members of the claim group is irrelevant to this application because Ms Keating cannot act in a representative capacity.

17    Further, there is no facility in the NTA for a person to “opt-out” of the claim group. Absent an interest sufficient to be joined under s 84(5), or resist removal under s 84(9)(b), and one that is more than “an emotional, conscientious, ideological or intellectual kind”: Arakwal at 7, Ms Keating’s objection to be part of the claim group that includes particular individuals, to whose inclusion she objects, is not a sufficient or proper basis for her to remain a party to the proceeding. Ms Keating’s claim that her interest is in the protection of cultural knowledge, which has been impinged on by the inclusion of these individuals, is not one capable of being affected by a determination of native title.

18    As to Ms Keating’s concern that some members of the claim group are not Muluridji, that concern is premature. At this stage of the native title claim process, the proper description of the Muluridji People is yet to be established by evidence. This will happen either through proceedings under s 87A or through the settlement process under s 87. As was said in TR (Deceased) on behalf of the Kariyarra – Pipingarra People v State of Western Australia [2016] FCA 1158 at [36] per North ACJ:

Concerns about intramural matters do not ground an interest of the type that justifies a member of the claim group remaining a respondent to the application. In relation to the way the application for a determination is conducted the statutory scheme provides for the applicant to control litigation and, in the course of that function, to resolve issues arising among the native title group members concerning the conduct of the litigation. In relation to the way the traditional laws apply to the manner in which the native title claim group operates internally, the group itself controls those issues through the decision making processes of the group.

19    Secondly, and relatedly, Ms Keating rejects the assertion that Dolly Hughes and Annie Green are apical ancestors of the Muluridji People.

20    The difficulty with Ms Keating’s submission on this point is that Dolly Hughes and Annie Green are two of the apical ancestors who define the native title claim group for this claim. They also define the native title claim group in Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432, which is conclusive of the status of the descendants of Annie Green and Dolly Hughes as Muluridji native title holders. No weight can be given to evidence, assuming any had been adduced by Ms Keating, that is inconsistent with existing determinations: Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 at [57] per Mansfield J; Starkey v South Australia [2018] FCAFC 36; 261 FCR 183 at [204] per Reeves J (with whom White J agreed at [401]).

21    Thirdly, Ms Keating is concerned that her grandmother’s name has been mis-recorded such that her family group has been excluded from the claim. Ms Keating’s grandmother is referred to variously as “Mable” and “Millie” Sheppard. Ms Keating is concerned that the perpetuation of this error through court documents and processes will make it difficult for any of her descendants to connect with the Muluridji People.

22    Ms Keatings concern is, with respect, misplaced. As set out in the Form 1 commencing Muluridji #3, the claim group is described as follows:

The Muluridji People are descended by birth or adoption from the following apical ancestors:

1.    Billy and Kitty (parents of Jimmy Riley);

2.    Mick Frazer/Brazier and his wife Kitty (parent of Rosie Frazier);

3.    George Baker (father of Nellie, Lucy, Willie and Lulu Baker);

4.    Mick Sheppard (father of Johnny, Violet, Moy, Willie, Stanley, Ronnie and Millie Sheppard);

5.    Annie Green (mother of Jack and Arthur Madigan and Tom King);

6.    Dolly Hughes (mother of Jessie and Thelma Hughes).

(Emphasis added.)

23    Attachment A to the Form 5 filed by Ms Keating is a letter dated 27 April 2015 (Aff-LNK, Annexure LK-01) from the “Descendants of Mick Sheppard” in which they record:

Our links have been passed down to us from our Elders and are currently as follows:

Mick Sheppard married Jean Mathieson whose children we descend from are:

William (Bill), Mable,

Whose living children are:

Rowena Sheppard and Ray Green.

Our Senior Elders and the only ones to speak for Mick Sheppard’s clan estate.

Rowena Sheppard has now passed on to her daughter Ann-marie Keating the right to speak in her place.

24    By letter dated 25 July 2022 (Aff-LNK, Annexure LK-03), the Northern Land Council wrote to Ms Keating in these terms:

On review of the Muluridji research materials (including genealogies and affidavits) held by NQLC, we understand that the names Millie Sheppard and Mabel Sheppard are used interchangeably to refer to the same person by researchers and also by some descendants of Millie/Mabel Sheppard. We also note that the Certificate of Exemption No.12/56 attached to your Form 5 refers to a ‘Minnie Sheppard’. The reference to Millie Sheppard in the Muluridji #3 claim group description (see above) as opposed to Millie/Mabel Sheppard will need to be addressed by amending the Muluridji #3 claim to reflect the names by which it appears she was known and recorded. Nevertheless, the fact remains that you and your family group are included in the Muluridji #3 claim group through descent from the apical ancestor Mick Sheppard. On this basis, the Applicant contends that the assertions made in your Form 5 regarding the exclusion of your maternal grandmother and her descendants from the Muluridji #3 claim group are erroneous.

(Emphasis in the original.)

25    There is no basis for Ms Keating’s assertion that her family group has been excluded from the claim by reason of the misnomer. Ms Keating does not contend that the apical ancestors, at least as they relate to her family group, have been misidentified.

26    Ms Keating has not demonstrated any basis for resisting her removal as a party under the NTA. She may feel that her views are being ignored by the claim group but, as a member of the claim group, she has every right to participate in the decision-making processes of the group. Whether or not her views are accepted is another matter. That is an inevitable consequence of group decision-making processes. The Court cannot intervene in those decision-making processes. It is necessary to be mindful of the observations of Logan J in Butterworth v Queensland [2010] FCA 325; (2010) 184 FCR 397 at [39] per Logan J:

The Native Title Act to me also contemplates that there will be occasions when it will be necessary for an applicant to consult with a native title claim group. Consult does not equate with “be dictated to by a member of”. A member of a native title claim group, where a need for consultation arises, is entitled to be given an opportunity to be heard, nothing more and nothing less than that.

Disposition

27    As difficult as Ms Keating finds the circumstances surrounding Muluridji #3, she has not demonstrated any basis for resisting her removal as party under s 84(8) of the NTA. For these reasons, there should be an order that Ms Keating cease to be a party to the proceedings.

28    In the circumstances, it is unnecessary to consider whether an order for summary judgment should be made.

29    There will be no order as to costs.

Associate:

Dated:    23 February 2023