Federal Court of Australia

Fourmile on behalf of Gimuy Walubara Yidinji People v State of Queensland (No 2) [2023] FCA 1202

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 8 February 2023 be dismissed.

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    Ms Barlow (the joinder applicant) has filed an interlocutory application dated 8 February 2023. The relief sought in the application is beyond the scope of the relief that might be ordered in an interlocutory application under the Federal Court Rules 2011 (Cth). Nonetheless, she has sought that relief in the prescribed form for a joinder application under the Native Title Act 1993 (Cth) (NTA). It is tolerably clear from the affidavit material Ms Barlow has filed in support of her application that she seeks to be joined as a respondent to the principal proceedings, otherwise known as Gerald Fourmile & Ors on behalf of the Gimuy Walubara Yidinji People v State of Queensland & Ors (GWY claim).

2    Ms Barlow asserts her rights as a Ngai-kungo-i person will be affected by a determination of native title in favour of the GWY People (the claim applicant). In essence, Ms Barlow claims that the Ngai-kungo-i People hold interests in country that overlay the GWY claim.

3    The claim applicant opposes Ms Barlow’s joinder.

The basis for joinder

4    Section 84(5) of the NTA provides:

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.

5    Pursuant to r 34.105 of the Rules, a joinder application must be accompanied by an affidavit outlining how the person’s interests may be affected by a determination and why it is in the interests of justice for the Court to grant the application. In support of her application, Ms Barlow relies upon an affidavit filed on 17 February 2023 (First Barlow Affidavit), a further affidavit filed on 3 March 2023 (Second Barlow Affidavit), and a further affidavit filed on 19 April 2023 (Third Barlow Affidavit).

Ms Barlow’s interest

6    I have dealt with the principles relating to the nature of the interest which would be sufficient to be joined pursuant to s 84(5) of the NTA in Braun on behalf of the Jirrbal People #4 v State of Queensland [2023] FCA 306, a matter to which Ms Barlow also sought to be joined pursuant to s 84(5) of the NTA. It is unnecessary to recite those principles.

7    As was the case in Jirrbal People #4, Ms Barlow does not explicitly assert native title rights in the claim applicant’s claim area. Rather, she claims “[o]n behalf of the Ngai-kungo-i People being the Chair of the Ngai-kungo-i People inc” as “the direct descendants of the Ngai-kungo-i Tribe” being “[t]he Lost Tribe of the Atherton Tablelands”: First Barlow Affidavit [1]-[3]; Third Barlow Affidavit Annexure 2. Ms Barlow submits that Ngai-kungo-i Peoples’ existence has been ignored in respect of native title claims and that if the claim applicant obtains a positive native title determination, Ngai-kungo-i People “will be effectively erased”.

8    Nevertheless, claims to native title exist within the framework of the NTA and it is only within that framework that Ms Barlow can advance a claim on behalf of the Ngai-kungo-i People. It is not clear that she has ever attempted to bring a substantive claim as opposed to a responsive claim. Nor had she had made any such attempt in relation to the Jirrbal People #4 claim.

9    Further, as was the case in Jirrbal People #4, Ms Barlow has failed to adduce any evidence of a native title holding group, the extent of such territory or group, or the content of traditional law and custom sufficient to raise even a prima facie case of the existence of native title, in the sense described by Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [32] and [87]-[89]. There is nothing in any one of the three affidavits on which Ms Barlow relies that comes close to raising even a prima facie case that the persons on whose behalf she claims are the native title holders of an area, let alone the GWY claim area.

10    The Second Barlow Affidavit exhibits a map (Annexure 1) which purports to be a copy of the map of the area over which the Ngai-kungo-i Peoples assert an interest. It is a very large area, consistent with Ms Barlow’s assertion that “the whole entire region from Cardwell to Cooktown would need to be reviewed”. As submitted by the claim applicant, that affidavit does not identify specific locations or sites for cultural activities, nor does it identify the traditional laws and customs which defined, and continue to define, the group and its connection to specific country. The affidavit contains no more than speculation and assertion about several peoples who may have lived on and/or traversed the area identified by the map but with no stated basis for any of the assertions.

11    There is another, almost insurmountable hurdle to Ms Barlow’s present application. On 1 April 2021, in Singleton on behalf of the Yirrganydji Peoples v State of Queensland [2021] FCA 316, Charlesworth J ordered that, pursuant to r 28.67 of the Rules, the whole of the Report of the referees, the Hon John Dowsett AM QC and Dr Paul Burke dated 6 March 2020, be adopted for the purpose of resolving the questions referred to the referees. As Allsop CJ said in Sheehan v Lloyds Names Munich Re Syndicate Ltd [2017] FCA 1340 at [9], the purpose of making a referral to a referee under s 54A of the Federal Court of Australia Act 1976 (Cth) or r 28.61 of the Rules is to enable a partial resolution of the dispute. His Honour applied the following passage at [11] from Buckley v Bennell Design & Construction Pty Ltd (1978) 140 CLR 1 at 15 (Stephen J):

… such a reference “is a species of trial, and the decision is now equivalent to a form of judgment or verdict and not an award”. In such a reference the court’s procedures of adjudication are not abandoned in favour of extra-curial settlement of the dispute by arbitration. Instead, the court directs that, for the better resolution of the particular proceedings initiated before it, resort should be had to this special mode of trial which the legislation has made available.

12    One of the questions answered by the Report was which group or groups, immediately before the acquisition of sovereignty, held native title rights and interests in the specified area: Yirrganydji at [16]. The specified area is as described at [18] in Yirrganydji:

The specified area encompasses the city of Cairns and its surrounds. Its northern boundary runs along the Barron River from Freshwater Creek to the mouth of the river and extending a short distance into the estuarine waters of Trinity Inlet. The eastern boundary runs south, along the eastern edge of Trinity Inlet to Mackey Creek to just north of Gordonvale. From there, the study area extends west as far as the ridge formed by the Isley Hills and along the western bank of Lake Morris, north to Freshwater Creek.

13    The whole of the GWY claim area is within the specified area: Yirrganydji at [20]. The map annexed to the Second Barlow Affidavit shows an area that extends well into the GWY claim area, including to the foreshore of Trinity inlet.

14    The Report concluded that the groups holding native titles rights and interests immediately before the acquisition of sovereignty in the specified area were Yindinji totemic patriclans and Djabugay (including Bulway) and/or Yirrganydji totemic patriclans. The Report’s conclusions were largely favourable to the GWY applicant, although their claim area has been reduced in accordance with the Report and its amended Form 1, for which leave to file was given on 6 July 2023.

15    The conclusions of the Report contradict Ms Barlow’s assertions that large parts of the GWY claim area have always been Ngai-kungo-i country (Second Barlow Affidavit; Third Barlow Affidavit Annexure 5), and that the GWY People “did not exist as a group until the past decade or so”: First Barlow Affidavit at [6]. Ms Barlow has not demonstrated any basis on which the Court’s adoption of the Report should be set aside. It is not, therefore, open to her to contradict the findings in the Report.

16    For these reasons, I am not satisfied that Ms Barlow has an interest that may be affected by a determination of native title in favour of the claim applicant for the application area.

The interests of justice

17    Even had I reached a different conclusion, Ms Barlow has not persuaded me that it would nevertheless have been in the interests of justice for me to exercise my discretion to join Ms Barlow as a party. As was observed by Mortimer J in Gunaikurnai People Native Title Claim Group v State of Victoria [2018] FCA 23 at [51]:

…The joinder provisions in s 84(5) are clearly wide enough to comprehend other indigenous people who allege their interests (including native title interests) are affected by the application. However, s 84(5) is a discretionary power, so ultimately it will be a matter for the Court's discretion whether a person is joined, even if it is the case that she or he can establish her or his interests are affected. The Court must also be satisfied it is in the “interests of justice” for the person to be joined.

18    First, the documents annexed to the Third Barlow Affidavit purporting to authorise Ms Barlow to act on behalf of certain people demonstrate that she apparently seeks to be joined as a respondent in a representative capacity; that is, on her own behalf and on behalf of persons who claim to be “descendants of Barlow Thomas and Fanny (AKA Polly) of the Ngai-kungo-i Peoples”. The NTA does not facilitate respondent parties acting in a representative capacity.

19    As Reeves J noted in Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [19], if a person wishes to obtain a positive determination of native title, then the NTA prescribes that the only method by which that can be achieved is by an application under s 13(1) of the NTA, complying with the requirements of ss 61 and 251B of the NTA. A person cannot be joined as a respondent party if his or her purpose in being so joined is to act as a representative to assert native title rights on behalf of other people.

20    Further, I accept the claim applicant’s submissions that it will suffer real prejudice if Ms Barlow is made a respondent to the proceedings through the frustration it will cause as to the clarity of territorial distribution of native title interests at effective sovereignty secured by the parties by reason of the Report and by denying the claim applicant the benefit of the removal of overlapping assertions of native title consequent upon the Court’s adoption of the Report.

21    For these reasons, I am not satisfied that would be in the interests of justice for Ms Barlow to be joined to the proceedings as a respondent party, even if I had been satisfied that she had a sufficient interest in the GWY claim area.

Disposition

22    The appropriate order is that Ms Barlow’s interlocutory application be dismissed. The respondent did not seek its costs of the application. Consequently, there will be no order as to costs.

Associate:

Dated:    11 October 2023

Schedule

No: QUD 23 of 2019

Federal Court of Australia

District Registry: Queensland

Division: General