Federal Court of Australia

Chatfield on behalf of the Gomeroi People v Attorney-General of New South Wales [2023] FCA 354

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by Mr Stephen Parkes dated 6 September 2022 be dismissed.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    Background to the applications

1    On 6 September 2022, Stephen Parkes filed an interlocutory application seeking leave pursuant to s 84(5) of the Native Title Act 1993 (Cth) to be joined as an Indigenous respondent to these proceedings.

2    The proceedings were commenced on 20 December 2011 by the Gomeroi People (applicants) who filed an application for a determination of native title under ss 13 and 61 of the Native Title Act. The application was registered on 20 January 2012.

3    The applicants oppose the application for leave filed by Mr Parkes to become a further indigenous respondent. The remaining parties neither consent nor oppose the joinder.

4    Mr Parkes filed two affidavits in support of his application and relied on oral and written submissions. The applicants relied on an affidavit given by Michael Glenn Bennett, a senior research historian and deputy manager research employed by NTSCORP and an affidavit given by Kenneth Anthony Lum, manager of research at NTSCORP.

5    In his written and oral submissions Mr Parkes advances his application in a personal capacity as an Ibbai Waggan man and also in his capacity as a representative of the Ibbai Waggan people. He contends that the material set out in his affidavits demonstrate that he is descended from his great-great-grandfather Charles May, whose daughter Jane May was the mother of his grandfather Henry Parkes who was in turn the father of Stephen Parkes’ father Leslie Parkes. Mr Parkes submits that the evidence in his affidavits demonstrates that the land and waters the subject of the Gomeroi native title application (Gomeroi application area) include an area that ought to be recognised to be the exclusive land and waters of the Ibbai Waggan people (overlap area).

6    The applicants contest Mr Parkes’ joinder on substantive and discretionary grounds.

2.    The relevant law

7    Mr Parkes seeks the exercise of the discretionary power conferred on this court by s 84(5) of the Native Title Act, which provides that:

The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.

8    Section 84(5) requires that before joining a person as a party to the proceeding, the Court must be satisfied of the following three elements:

(a)    the joinder applicant has an interest (of the kind contemplated by s 84(5));

(b)    the interest may be affected by a determination made in the proceeding; and

(c)    it is in the interests of justice for the Court to order the joinder sought.

See Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia [2022] FCA 114 at [5] (Bromberg J).

9    The purpose of a person seeking to be joined under s 84(5) is important; Harrington-Smith at [18], Lander v State of South Australia [2016] FCA 307 at [73] (White J). For the purpose of the subsection, a sufficient interest need not be proprietary or even legal or equitable in nature, but it must not be an indirect or remote interest or an interest lacking substance. 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 in relation to the application; Byron Environment Centre Inc v Arakwal People [1997] FCA 797; 78 FCR 1 at 7 (Black CJ), Harrington-Smith at [36]. The joinder applicant need only satisfy the Court on an arguable or a prima facie basis that such an interest is held; Harrington-Smith at [33].

10    The words “interests may be affected by a determination” encompass but are not restricted to an interest in lands and waters; Byron at 6 (Black CJ), 18 (Lockhart J) and 40-41 (Merkel J). The word “interests” and “affected” are not to be narrowly construed, but, as Bromberg J noted in Harrington-Smith at [36], “interests” did not include an indirect or remote interest, or an interest lacking substance (referring to Byron at 7 (Black CJ) and 42 (Merkel J)).

11    Per White J in Lander at [73] (emphasis added):

Persons seeking to be joined, or to remain as, a respondent to native title proceedings on the basis that they have native title rights and interests in the subject land which may be affected by a determination in the proceedings, are permitted to pursue only a personal claim in those rights and interests, that is, to protect them from erosion, dilution or discount.

12    If such persons seek instead, or also, to obtain a positive determination of native title, they must do so in a manner contemplated by the Native Title Act. This has been referred to as the principle in Commonwealth v Clifton [2007] FCAFC 190; 164 FCR 355 (Branson, Sundberg and Dowsett JJ), which is that that this Court cannot make a determination that native title is held by a particular group of persons, unless a native title determination application had been made under s 13(1) of the Native Title Act by a person or persons properly authorised by that group; Clifton at [57]-[58]; Harrington-Smith at [6], [17] (Bromberg J); Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369 at [21] (Rangiah J).

13    In relation to the exercise of discretion under s 84(5), in Wilson on behalf of the Wirangu People v South Australia [2022] FCA 829 O’Bryan J said at [19]:

In assessing where the interests of justice lie, regard should be had, among other things, to the objects and purposes of the Native Title Act and the overarching purpose of civil practice and procedure expressed in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) which includes the just determination of disputes efficiently, in a timely manner, and at a cost that is proportionate to the importance and complexity of the matters in dispute: Kum Sing at [17]. A relevant consideration to the interests of justice is whether those seeking to be joined have provided a satisfactory explanation for any delay connected with their application and the prejudice that may be caused to existing parties to the proceedings if they are joined as a party: Barunga at [163] and [219] per Gilmour J; Jacob v State of Western Australia [2014] FCA 1106 at [4] and [51] per McKerracher J; Allen on behalf of the Nyamal People #1 v State of Western Australia [2018] FCA 320 at [56] and [75] per Barker J; Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369 at [23]-[27] per Rangiah J; Foster on behalf of the Gunggari People #4 v State of Queensland [2019] FCA 1300 at [9]-[12] per Reeves J.

14    Other factors that may be taken into consideration are whether the interest can be protected by some other mechanism; Harrington-Smith at [73]; whether the applicant for the determination would be significantly prejudiced if the joinder is granted and whether there has been any unexplained delay in bringing the proceedings; Harrington- Smith at [59].

3.    The evidence

15    Mr Parkes’ affidavit evidence asserts that he is a representative of the Ibbai Waggan People. He gives evidence that he was born in 1962 and raised in the Ibbai Waggan Ngurangbang and gained knowledge from oral and documented stories as to his ancestry. In annexure SP 1 he provides a list of his line of descent from Charles May. He contends that the Gomeroi application area overlaps within the land traditionally regarded as Ibbai Waggan land, and annexure SP 2 provides a map showing the Ibbai Waggan land. Mr Parkes contends that he is a direct descendent of Charles May, who was “born a half cast into the Ibbai Waggan Ngurangbang”. In his second affidavit, he annexes extracts from journal entries maintained by missionaries in the 1830s and 1840s to support his contention in relation to SP 2. He also annexes parts of a book written by the Rev William Ridley entitled “Kámilarói and Other Australian Languages”, published in 1875, which, he contends, places doubt on the proposed Gomeroi application area and a one page extract from a book called “The Red Chief” by Ion Idriess, which he contends further supports his position.

16    The applicants rely the affidavit of Dr Lum, who provides a map that he has prepared by overlaying the boundaries claimed by Mr Parkes to represent the area of the Ibbai Waggan people with the claim area, thereby identifying the overlap area, which is as follows:

The thicker yellow boundary is the area that Mr Parkes has identified as being the subject of his peoples’ claim. The thinner, blue boundary is the southernmost portion of the Gomeroi application area.

17    The affidavit of Dr Bennett annexes a report where he addresses two questions: first, whether the ancestors of Mr Parkes were born, resided, married or died in the Gomeroi application area; and secondly whether Mr Parkes has any Aboriginal ancestors who were born, resided, married or died in the Gomeroi application area.

18    Dr Bennett views contemporaneous records concerning each of the people from whom Mr Parkes claimed lineage, being his great-great-grandparents Charles May and Laurina Chew, his great grandparents Jane May and John Parkes, his grandparents Henry Parkes and Ada Sutton and his parents Leslie Parkes and Dorothy Mulhall. He concludes that those records indicate that both Charles May and Laurina Chew were born in England in the 1840s and accordingly were not of Aboriginal descent. He concludes that his research demonstrates that Mr Parkes is a descendent of Charles May, but that Charles May is not of Aboriginal descent and nor is Mr Parkes.

19    Dr Bennett examined the birth, death and other available records – including a notice in a local newspaper concerning Charles May and his obituary – to conclude that none of the evidence indicates that Stephen Parkes or his ancestors were born, resided, lived, married or died within the Gomeroi application area.

4.    Consideration

20    Section 84(5) of the Native Title Act first requires that the Court be satisfied that Mr Parkes’ interests “may be affected by a determination in the proceedings”.

21    In the present case I do not consider that Mr Parkes’ interests may be affected by a determination in the Gomeroi native title claim to a sufficient extent to warrant his joinder.

22    First, one significant reason that he advances for seeking joinder is in order to advance a claim on behalf of the Ibbai Waggan people that the Gomeroi claim area is incorrectly defined because of the overlap area. As I have noted earlier, a member of another native title group cannot be joined as a respondent for the purpose of acting as a representative to assert native title rights on behalf of the other group. That is because, as Rangiah J explained in Blucher at [21], the combined effect of ss 13, 61, 213 and 225 of the Native Title Act is that an application for a determination of native title can only be made by a duly authorised applicant using the procedures in Part 3 of that Act; see also Lander at [73] and Harrington-Smith at [18]. Mr Parkes’ joinder as an Indigenous respondent in the current claim does not conform with these requirements.

23    Secondly, the evidence that Mr Parkes advances in support of his contention that the overlap area is not sufficient to support a finding that a prima facie case that his interests will be affected is shown; Wakka Wakka People #2 v Queensland [2005] FCA 1578 at [6] (Kiefel J).

24    In Wilson [2022] FCA 829, O’Bryan J provides a convenient summary of the position at [17]:

… The evidence must rise beyond mere assertion, have some probative quality and be capable of establishing facts from which a finding of a requisite interest could be made: Sumner v South Australia [2014] FCA 534 (Sumner) at [25]-[26] per Mansfield J. In Gomeroi People v Attorney General of New South Wales [2013] FCA 81, Jagot J observed that a person must assert more than a remote or insubstantial interest to hold the status of a party to the proceeding (at [24]). In that case, her Honour observed in respect of an Aboriginal respondent who claimed, without further substantiation, that he held native title in relation to land or waters in the area covered by the application (at [24]):

… I am left in the position where I can do nothing more than speculate as to whether there is any interest and if there is any interest, whether it be characterised as a native title right or interest or otherwise, whether it would actually be affected by the determination in these proceedings. It seems to me, in these circumstances … it is only those persons whose interests may be classified as genuinely, demonstrably and not indirectly affected by a determination of native title who ought to have the status of parties to the proceedings. The reason for this is obvious, given that as a party to proceedings there are vested therein, by the provisions of the Native Title Act, various rights and indeed obligations which could have the effect of substantially interfering with the timely and efficient resolution of such matters.

25    The evidence advanced by Mr Parkes in support of his claim to the boundaries of the Ibbai Waggan land does not rise above speculation. He provides no explanation as to how the borders identified in the map annexed as SP 3 came to be drawn. Nor do the references in the journal entries from missionaries in the 1800s provide any form of coherent history from which borders may be drawn. Stray references to Ibbai Waggan people are provided by reference to relative distances from locations that are unclear. Mr Parkes in his oral submissions did his best to explain how those references may be understood to identify that the author was identifying land which fell within the overlap area, but even with the benefit of that explanation I do not consider that it is sufficient to indicate with any degree of clarity or cogency that Ibbai Waggan land extended into the Gomeroi application area. This should not be taken to mean that no contest may be advanced as to the claim area, or the overlap area. It may be that further anthropological evidence will support the contention advanced by Mr Parkes. However the material currently before the court is insufficient.

26    Thirdly, the current case management timetable includes orders that an expert anthropologist prepare a report in support of the Gomeroi application. Mr Jitendra Kumarage has been retained by the applicants. The applicants, by their counsel, confirmed during the course of the hearing that Mr Parkes has been invited to speak to Mr Kumarage. He, and other elders from the Ibbai Waggan people, will be free to advance their position during that process. There is an alternative route available to Mr Parkes and others to put forward their case as to a connection with the land the subject of the Gomeroi application; Harrington-Smith at [73].

27    Fourthly, insofar as Mr Parkes advances his application to be joined as a respondent on his own behalf, the authorities indicate that he can do so in order to protect that interest from “erosion, dilution or discount”; Lander at [73]. However, the evidence presently before me does not rise to the standard required such that I can be satisfied that Mr Parkes has that personal interest. The first reason for this is that the evidence adduced by Mr Parkes ties his connection with the overlap area to the same materials as those upon which he relies in support of his representative claim. For the reasons given, that evidence is insufficient. The second reason is that, insofar as he advances a personal claim, the evidence of Dr Bennett tends to contradict the existence of an overlap. For each member of the family tree upon whom Mr Parkes relies to support his connection with Charles May, Dr Bennett has produced contemporaneous records which indicate that none of them were born, resided or lived within the overlap area. The third reason is that, again on the basis of Mr Parkes’ claimed connection with Charles May, there is reason to doubt that by reason of that lineage Mr Parkes has established a genealogical connection to Aboriginal heritage on the basis of Dr Bennett’s evidence.

28    I should say that each of the reasons that I have identified in the previous paragraph concern the materials that are before me in the present application. I make no findings of fact in that respect beyond consideration of whether Mr Parkes has demonstrated on a prima facie basis that his interests may be affected by a determination in the Gomeroi proceedings.

29    Finally, in my view this is not a matter in which it is in the interests of justice within s 84(5) for the application for Mr Parkes to be joined. The application was filed in September 2022, some eleven years after the commencement of the proceedings. Mr Parkes sought to explain why the application was not brought forward earlier, however, I regard that explanation to be unsatisfactory. The boundaries of the Gomeroi application have not been amended since the claim was first filed in 2011. No particular catalyst relating to any change of the boundaries of the Gomeroi application explains why the application was brought at this time. The consequence of the joinder may well delay further progress of the matter towards hearing.

30    Accordingly, the interlocutory application for joinder brought by Mr Parkes must be dismissed.

Associate:

Dated:    20 April 2023

SCHEDULE OF PARTIES