Federal Court of Australia

McLennan on behalf of the Jangga People #2 v State Minister for the State of Queensland [2023] FCA 1591

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 18 November 2022 be dismissed.

2.    Pursuant to s 84(8) of the Native Title Act 1993 (Cth), Mr Lawrence Flinders Kerr cease to be a respondent party to the Jangga #2 Native Title Claim (QUD387/2018).

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

REASONS FOR JUDGMENT

COLLIER ACJ:

1    Before the Court are interlocutory applications filed by Mr Kerr on 18 November 2022 and Alice Fisher, Gloria Santo, Toni McLean and Matthew Masso (Gudjala respondents) filed on 31 August 2023. The substantive application is an application for Native Title brought by Colin McLennan & Ors on behalf of the Jangga People #2.

2    Mr Kerr seeks the following orders:

On the grounds stated in the accompaning affidavit, Yilba People apical decendennt, Lawrence Flinders Kerr seeking the following orders:

1.     that Yilba People apical decendent Lawrence Flinders Kerr join to the proceeding as Yilba People Respondent, replacing affidavit Graham O'Dell c/o 61 Anderson Street, Manunda QLD 4870 28 October 2020, Principal Legal Officer (PLO) North Queensland Land Council Aboriginal Corporation and; Cheryl Ann Thomson 6 November 2020, interlocutory orders sought for Gloria Santo, Alice Fischer, Laurie Kerr, Maddie Masso, Toni McLean join the Jangga People #2 application.

2.     There be no order as to costs

3.     Such further or orders or directions as the Court deem appropriate.

(errors in original)

3    I understand that Mr Kerr is currently a respondent to the substantive proceeding, as a member of the Gudjala People, although plainly he is not associated with the Gudjala respondents in this proceeding.

4    The Gudjala respondents’ interlocutory application seeks the following orders:

1.     That pursuant to subsections 84(8) of the Native Title Act 1993 (Cth), Mr Lawrence Flinders Kerr cease to be a respondent party to the Jangga #2 Native Title Claim (QUD387/2018).

2.     There be no order as to costs.

3.     Such further or other orders or directions as the Court deem appropriate.

5    I note on 21 November 2023 Judicial Registrar Native Title Grant held a case management conference to determine who the Gudjala Respondents comprised. At the case management conference, the new legal representative for the three respondents identified that three members of the Gudjala Respondents did not wish to be heard on the applications and sought to withdraw from the proceedings. The sole remaining active member of the Gudjala respondents is Mr Masso.

6    Both the Gudjala respondents and the Native Title Applicant oppose Mr Kerr’s joinder application.

Background

7    A Native Title Determination Form 1 was filed on 8 June 2018 by Colin McLennan & Ors on behalf of the Jangga People#2 and was last amended on 11 November 2022. The Native Title Claim Group was authorised on 26 May 2018 by all person in the Native Title Claim Group to make an application and to deal with matters arising in relation to the Claim.

8    The General External boundary is described in Form 1 as follows:

The application area covers all the land and waters within the external boundary described as:

Commencing at the northernmost point of Lot 1 on MPH13730, being a point on the intersection of the Flinders Highway and western bank of the Burdekin River, and extending easterly along the southern boundary of the Flinders Highway to the centre of the Burdekin River, also being a point on the external boundary of Native Title Determination QUD6244/1998 Birriah People (QCD2016/001); then generally southerly and generally south easterly along that native title determination external boundary to the western shoreline of Lake Dalrymple (Lot 13 on MRY51); then generally southerly along the western boundaries of that lot to the intersection with external boundary of Native Title Determination QUD6230/1998 Jangga People (QCD2012/009) at Latitude 20.652817° South; then generally north westerly and generally south westerly along that native title determination external boundary to intersect again the western shoreline of Lake Dalrymple (Lot 13 on MRY51) at Latitude 20. 799748° South; then generally northerly, generally westerly, generally southerly, generally north easterly and generally south easterly around that shoreline to intersect again with the external boundary of Native Title Determination QUD6230/1998 Jangga People (QCD2012/009) at Latitude 20.832161 ° South; then generally north westerly, southerly, generally south westerly, generally southerly, along that native title determination external boundary to the intersection of the external boundary of native title determination application QUD85/2004 Wangan and Jagalingou People (QC2004/006) at Latitude 21.631563° South; then generally north westerly, northerly, westerly, then generally southerly along the northern and western boundaries of that claim to a point on that external boundary at Latitude 22.513725° South.

9    The map of the boundary of the Jangga #2 claim is as follows:

10    The Gudjala People and Mr Kerr were joined as respondent parties to these proceedings to protect their native title interests in the land and waters covered by the Jangga #2 Claim Area by order of Registrar Grant made on 7 December 2020 pursuant to an interlocutory application filed by them on 6 November 2020.

11    On 26 May 2021, the North Queensland Land Council Native Title Representative Body Aboriginal Corporation (NQLC) filed a Notice of Ceasing of Act on behalf of Mr Kerr on the basis that Mr Kerr refused to act in a manner consistent with the role he undertook to take as a descendant of Cissy McGregor or to take legal advice in relation to his role as a respondent party in these proceedings.

12    Mr Kerr remains as a respondent party in these proceedings and is self-represented.

13    In accordance with Order 1 of the orders made on 7 February 2023, on 5 April 2023 Alice Fischer, Gloria Santo, Patricia Dallachy and William Santo, on behalf of the Gudjala people, filed native title determination application (Form 1) QUD 121/20236 (Gudjala #3 Claim) in this Court over the northern portion of the Jangga #2 Claim Area, commencing in the south at the Cape River (Gudjala Overlap Area).

14    On 5 August 2022 I ordered that the issues in dispute between the Applicant and the Indigenous Respondents Alice Fischer, Mathew Masso, Toni McLean, Gloria Santo and Lawrence Flinders Kerr be referred to mediation. No agreement was able to be reached between the Jangga #2 applicant and Mr Kerr.

15    Extensive evidence was filed by the parties in the proceeding. The State Minister for the State of Queensland did not take an active role in respect of the interlocutory applications.

Summary OF SUBMISSIONS

16    In summary, Mr Kerr submitted as follows:

    It is important that the Yilba People’s position be protected and presented;

    He has a three-way connection, namely Yilba, Gudjala and Gungalgunnu/Gunglingun;

    North Queensland Land Council (NQLC) should offer representation to all;

    Cissy McGregor is wrongly identified in respect of her people;

    His removal from Gugu Badhun #3 has nothing to do with Jangga #2;

    He would be prepared to share information concerning lores and customs of the Yilba People with NQLC anthropologists;

    The interests of Yilba are not being taken into account;

    Mr Colin McLennan is endeavouring to “get rid” of Mr Kerr;

    The anthropologists have not done their jobs properly.

17    In opposing Mr Kerr’s application to join the proceeding as a respondent, the Gudjala Respondents submitted in summary:

    Mr Kerr’s application to replace the Gudjala respondents with himself as a Yilba person is misconceived in circumstances where the Gudjala People have received consent determinations as native title holders to areas abutting the Jangga #2 Claim Area, and they have native title interests they seek to protect from erosion by a determination in these proceedings.

    Mr Kerr has shown no interest in being a respondent party prepared to protect any Gudjala native title interest arising from his descent from Cissy McGregor;

    Mr Kerr seeks his own dismissal as a party protecting his Gudjala interests;

    Mr Kerr has not established any Yilba interest in the Jangga #2 Claim Area that can satisfy s 84(5) of the Native Title Act;

    To the extent that Mr Kerr asserts that he is Yilba because his apical ancestor Cissy McGregor was born “at old St Pauls Station in Yilba country”, this fails to recognise that the Gudjala Consent Determinations recognised Cissy McGregor as Gudjala. To the extent that Mr Kerr relies on his descent from Cissy McGregor in asserting a Yilba interest, his assertion is wrong;

    Mr Kerr’s asserted knowledge of the location of Yilba “manburra” estates which cover the Jangga #2 Claim Area has no sources or detail identified;

    Mr Kerr seeks to become a respondent in a representative capacity on behalf of the claimed Yilba people, seeking positive recognition of Yilba native title. This is impermissible.

18    In also opposing Mr Kerr’s application to join the proceeding as a respondent The Native Title Applicant submitted, in summary:

    Mr Kerr asserts that a woman born in the 1700s named Bela was born on St Paul’s Station, she and her descendants were Yilba People, one of Bela’s descendants was Cissy McGregor, and there is a community of people who identify as Yilba;

    Ms Cheryl Thomson attested that at a Gudjala Community meeting Mr Kerr put himself forward as a representative of the descendants of Cissy McGregor to protect Gudjala interests in the proceeding (affidavit filed 21 April 2023);

    NQLC anthropologist Mr Luis Lopez gave evidence that Mr Kerr’s only connection to the Gudjala People was through his descent from Cissy McGregor, and that although Mr Kerr mentioned Fred Toomba as Yilba person, evidence indicates Mr Toomba referred to his language as “Gudjal”;

    Mr McLennan deposed that he had never heard of a “Yilba” native title claim group, and knew no persons who identified as a Yilba person.

    Dr Philip Clarke, consultant anthropologist for the Applicant in the Jangga People #2 proceeding, stated that he found that “Yilba” was a dialect rather than a distinct group that “owned” country;

    Mr Kerr has not demonstrated an interest to be affected by a determination of native title.

19    In respect of their interlocutory application seeking an order removing Mr Kerr as a respondent party, the Gudjala respondents submitted that, in essence, Mr Kerr sought to relitigate the finding in the Gudjala Consent Determination that Cissy McGregor was a Gudjala person. That attempt at re-litigation was impermissible at law as an abuse of process. There was also ample lay evidence that Cissy McGregor was a Gudjala person, including evidence of other descendants of Cissy McGregor.

20    Further, to the extent that Mr Kerr had disavowed his membership of the Gudjala People, it would not be in the interests of justice to remain a respondent to the proceeding to defensively assert his rights as a Gudjala person.

21    The submissions of the Native Title Applicant echo those of the Gudjala Respondents.

22    In opposing his removal as a respondent, Mr Kerr submitted, in summary:

    Statements that Cissy McGregor was Gudjala are false;

    Cissy McGregor was born outside Gudjala territory;

    He did not at the time of the Gudjala #1 and Gudjala #2 determinations give evidence concerning Cissy McGregor’s true heritage, because he “was met with coercive behaviour from NQLC and members of Cissy’s decedents [sic], as the case is now.”

    He is possibly the last of “Gungalgannu/Gunglinguns, Gudjala”.

CONSIDERATION: APPLICATION FOR JOINDER

23    Principles applicable to the exercise of the Court’s discretion under s 84(5) of the Native Title Act 1993 (Cth) are clear. As Mansfield J explained in Sumner v State of South Australia [2014] FCA 534:

12.    The elements of s 84(5) are well established: Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [26] (Mansfield J) (Far West Coast (No 5)); Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310 at [14] (Greenwood J) (Chippendale); Barunga (Gilmour J); Akiba v Queensland (No 2) [2006] FCA 1173; (2006) 154 FCR 513 at 520 [32] (French J); Worimi Local Aboriginal Land Council v Minister for Lands (NSW) [2007] FCA 1357; (2007) 164 FCR 181 at 183-184 (Bennett J). An applicant for joinder must establish:

(a)     whether the person has an interest;

(b)     whether the interest may be affected by a determination in the proceedings; and

(c)     whether, in any event, in the exercise of its discretion the Court should join the person as a party.

13.    With respect to the “interest” in (a) and (b), it “need [not] be properly or even legal or equitable in nature” but must be “genuine”, ... not indirect, remote or lacking substance ... [and] capable of clear definition” and “be affected in a demonstrable way”: Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 at 7E-G, 8A (Black CJ) (Byron) (emphasis added); Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315 at 316-317 (Branson J) (Davis-Hurst); Barunga at [165] (Gilmour J); Chippendale at [14] (Greenwood J); Far West Coast (No 5) at [28] (Mansfield J).

…

16.    In determining whether an applicant for joinder satisfies the test identified in Byron, the Court does not embark on resolving contested questions of fact or seek to determine where the merits lie. Rather, the question is whether having regard to the assertions of fact contained in the application for joinder, the Court can be satisfied that the person’s interests may be affected in a demonstrable way by a determination of native title. That is, there must be a factual foundation which demonstrates that a relevant interest is affected: Chippendale at [16] (Greenwood J).

17.    As to the discretion, that must be addressed on a case by case basis: Far West Coast (No 2). While there is no doubt that the discretion conferred on the Court by s 84(5) is a broad one, that discretion is to be exercised with due regard to the statutory purposes and context of the NT Act read as a whole, including to ensure that the prosecution of native title claims is not occasioned by unnecessary delay caused by unreasonable interlocutory applications.

(see also Forrest on behalf of the Kakarra Part A Native Title Claim Group v State of Western Australia [2023] FCA 529, Wilson on behalf of the Wirangu People v South Australia [2022] FCA 829)

24    The applicant to a joinder application has the onus of satisfying the Court of each of the elements in s 84(5): Bromberg J in Forrest on behalf of the Kakarra Part A Native Title Claim Group v State of Western Australia [2023] FCA 529 at [14]

25    Importantly however a person cannot seek to be joined as a party to a Native Title claim in a representative capacity for the purpose of asserting native title rights on behalf of another group. As Rangiah J explained in Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369 at [21], this is because 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 Pt 3 of the Native Title Act (see also Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 at [18] and Commonwealth of Australia v Clifton [2007] FCAFC 190 at [2]).

26    As his Honour further observed at [21], while a member of another native title group may be joined as a respondent for the purpose of “defensively asserting” native title rights and interests, such a person is only permitted to pursue a personal claim to such rights and interests, namely to protect them from erosion, dilution or discount. (see also Reeves J in Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [18]-[21]).

27    Mr Kerr faces immediate problems in his application for joinder as a Yilba person, claiming descent from Cissy McGregor. Cissy McGregor has already been recognised as a Gudjala apical ancestor in numerous determinations of this Court. In particular I note Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 3) [2014] FCA 231, Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland [2016] FCA 1505, and Dodd on behalf of the Gudjala People Core Country Claim #2 v State of Queensland [2016] FCA 1506 – in each of these determinations the Gudjala People were described as descendants of, inter alia, Cissy McGregor. As a descendant of Cissy McGregor, it appears that Mr Kerr is a Gudjala person.

28    In the present case, it is plain that Mr Kerr seeks joinder in a representative capacity for the purpose of asserting native title rights on behalf of the Yilba People, whom he claims are the true Native Title holders of land overlapping the Jangga #2 claim area. That this is the case is demonstrated by various materials and submissions before me.

29    First, Mr Kerr’s interlocutory application filed 18 November 2022 relevantly seeks an order:

1.    that Yilba People apical decendent Lawrence Flinders Kerr join to the proceeding as Yilba People Respondent….

30    Second, I note evidence of Mr Kerr, in particular his affidavit filed 18 November 2022 in which he deposed:

6.    The 24 March 2020 notice included Gudjala and other’s who assert rights and interest. The minutes of the 24 march 2020 will testify my interest to become a respondent for Yilba.

7.    As other’s, at the 24 March 2020, I asserted my interest’s for the Yilba People, as the apical for Gudjala they use my Greatgrandmother Cissy McGregor, the only problem was, Cissy McGregor’s mother and grandmother and greatgrandmother belong to Yilba sovereignty, not Gudjala. Cissy born old St Pauls Station in Yilba country.

…

12.    On the 27 October 2022, I forwarded an Application for Assistance to North Queensland Land Council Aboriginal Corporation/RNTBC (Special Services) for the larger country claim of Yilba which overlaps Jangga #2 and a small area south left.

13.    Yilba sovereign apical of Bela decendents,, have authorised myself in requesting that through lore’, the process I have engaged for the recognition of Yilba,follow the law’s of colonal Courts to be recognised and argue Yilba’s case of continuity.

14.    I, Lawrence Flinders Kerr decendent of apical Bela, being Yilba, make an application to be joined to the Proceeding as a respondent pursuant to s 84(5) of the Native Title Act I now respectfully seeks the leave of the Court to join the Proceeding as a respondent for Yilba People.

…

16.    Documents testify Yilba People’s interest 2017, including apical connection, rights and interests to tradition, spirituality, culture, custom, enjoyment over lands & waters.

(errors in original)

31    Third, there is further evidence before me that Mr Kerr has earlier asserted that native title in the relevant claim area was Yilba. Ms Cheryl Thomson in her affidavit filed 21 April 2023 deposed:

8.    At the Community Meeting, those Gudjala people attending appointed from their number the Gudjala respondents and Mr Kerr as respondents to protect the native title interests of the Gudjala people in this proceeding. Mr Kerr was appointed to represent the descendants of Gudjala Apical Ancestor, Cissy McGregor. Each of the Gudjala respondents, including Mr Kerr, accepted their appointed roles.

9.    At the meeting Mr Kerr first told the meeting that the Jangga #2 claim was over Yilba country and not Gudjala country. This was not supported at the meeting and another person came forward to represent the descendants of Cissy McGregor and protect Gudjala interests in the proceeding. When this occurred, Mr Kerr put himself forward as the representative of the descendants of Cissy McGregor to be joined to protect Gudjala interests in this proceeding. Mr Kerr was then accepted by the Gudjala people at the meeting.

32    Fourth, in his written submissions filed 23 May 2023 Mr Kerr plainly purported to advance arguments on behalf of Yilba People, rather than in respect of his personal interests. In particular I note the following submissions:

4.    At this, I put my proud exclusive (meaning possessed) and my stubbened stance fell, and sharing Yilba's exclusive traditional lores and customs has to be shared if Yilba communal estates have to get protected from anyone with intention's to harm or use whatever instrument for gain, and not for culture. The Yilba map with dots have Possessed Exclusive Knowledge.

…

23.    Jangga elder Colin McLennan, let us view the history to exclusive knowledge I know about you, as a Applicant to 1). Birri 2001, 2) Birriah 2013, 3) Jangga #1, 4) Jangga #2, 5) Jangga #3, busy is Mr Colin McLennan, and to be Applicant for so many, there must be a wealth of exclusive rights and interests, traditional lore and customs possessed for all your responsibilities, and yet, my Yilba scares the Jangga People. Jangga with all their resources, still can't ask me about Yilba's Possessed lores and customs, and Dr Clarke tries to discret my apical's along with NQLC's Dr Louis, feel free to come and interview me, I will talk.

24.    I notice both Gudjala and Jangga only attack myself, and nevr disprove Yilba existance as historical evidence even on language map.

…

31.    By coerceive litigation, I am forcefully sharing Yilba's exclusive knowledge for the World to abuse or use to benefit and to rape Yilba's exclusive possessed rights and interests that will distroy customs and lore for whatever intent.

32.    In sharing the above Dr Clarke, Dr Mayo, and espically you Dr Mayo, what is the stance to your evidence of Common Law requirements for Gudjala, given Dr Hagen and DOWSETT J 2009 dismissal of Gudjala#2 bassed on apical's and common law and customs requirements. The fact that Dr Mayo is leaving all commetery to Dr Louis Lopez in house NQLC anthropologist and the the expert for the Court, smells of desperation.

33.    Imagine if NQLC aproved Yilba's application for assistance 27 October 2022, would this litigation I am putting have substance and exposure of Intent Bad Faith or the Strenght for Yilba and possessed exclusive rights and interests and traditional lores and customs I really Want to share to all Dots on Map.

…

45.    The Burra groups to the Yilba language is exclusive and must get recognition, to protect and handed down, as did the anthropologist who filed it on the Australian Map of language, and to the knowledge with Dr Clarke and Dr Mayo who acknowledge the name Yilba .. amongst other fellow colleages in their field.

46.    Does Yilba have a tenable defence, Yilba believe it has and until Dr Clarke and Dr Mayo produce tenable evidence against the name Yilba not known to historians, we must consider the fact of evidence today, and accept my Joiner application as a party to the Jangga#2 application if justice in approving any consent determination to exclusive possessed right and intresrs, with traditional lores and customs, and factual proof given to the Federal Court of Australia and not word of mouth from Anthropologist Court experts running throught the motions.

(errors in original)

33    Finally, at the hearing before me on 24 November 2023, Mr Kerr submitted as follows:

MR KERR: Cissy McGregor and that – the Jangga #2 claim area is Yilba country, that’s what I assert. Not Gudjala company. The Gudjala submission takes into issues – Mr Kerr’s claims, and so does Mr Masso in his submission. I believe that statement is not so, because Mr Masso is not here, and ---

(transcript p 25 ll 7-10)

34    Later during the hearing, the following exchange took place:

HER HONOUR: Okay. But Mr Kerr, we have to have some organisation with the way in which litigation is conducted. Because otherwise, if it’s just open slather, things would never get resolved. So…

MR KERR: This is where the authorisation meeting comes in.

HER HONOUR: Yes.

MR KERR: You can only express that when the authorisation meeting comes in and who is involved. But you can’t get that first instance. You’re like me. You have all this knowledge and you can’t give it out to people because you can’t trust them. Now, these facts I have shown to Dr Mayo, but he didn’t want to take the paperwork, he just took photographs of it. And his actual words to me both in 1 November – 1 September 2020. “What, Lawrie, do you want all this country for yourself?” And other facts I’ve got here, your Honour, like I will as saying, I only – if I do present them, I only want you to see it, because you’re the one that’s making the decision, not the people, but this sensitive information that I’ve kept as a cultural person, to keep peace. But I am – I am forced and it’s all about – I can’t say, but …

HER HONOUR: All right.

MR KERR: If you wish to look at them, and…

HER HONOUR: Hang on, just so everybody is clear. You want to produce additional evidence for me to see without the other side seeing; is that right?

MR KERR: Yes, your Honour. It’s just that – because you’re the one that’s making the decision.

HER HONOUR: That’s right.

MR KERR: And if – and I will leave it to your discretion.

HER HONOUR: No, well…

MR KERR: If you want them to see it, I will leave it to you, your Honour.

MR ATHANASIOU: Your Honour, I would object to that.

HER HONOUR: And why is that Mr Athanasiou?

MR ATHANASIOU: ..... adduce further new evidence in the proceedings ..... and it’s too late.

HER HONOUR: All right. Mr Carter, what do you say?

MR CARTER: We would object also, your Honour. I took your Honour previously to your orders, your Honour’s orders in relation to production of evidence. Those dates are well past.

MR KERR: May I state, your Honour, I’ve introduced this evidence to Dr Mayo, and if he didn’t forward it on – but I still have the right to let you see what he has seen and don’t report it. It has been introduced

HER HONOUR: Well, if it’s already – so there are several issues here. One is lateness of production of evidence; secondly, an application to withhold evidence from the other side and only for the judge to see. Mr Kerr, I’ve heard what you’re saying in relation to this evidence. The problem is that it is very late. The Gudjala respondent and the Jangga applicant object. I can understand why. I am not – the third thing is I’m not sure to what extent this evidence, which I have not seen, would assist me anyway. There may be something which – there may be relevant material in there. I don’t know. But the points which have been raised today by Mr Athanasiou and Mr Carter are real in relation to joinder and removal. Even if you say – even if, just say, that evidence points towards the existence of a Yilba group, just say, a group of people who can be described as Yilba, as far as joining the Jangga native title claim, that doesn’t help you because to join, you have to show interests, basically, of your own, not representing some other group.

So just say you say, “Your Honour, there is a group there, Yilba. It’s actually Yilba country”, one possible immediate response from me would be, “Well, Mr Kerr, go and file a claim as Yilba. That’s what you should be doing, not seeking to join with them, the Jangga people. File your own claim.” There’s a lot of case law which says you can’t disguise a native title claim, what’s actually a native title claim, by joining with somebody else. That doesn’t work that way. The courts have been like, “No, we’re not going to let you do that.” If you say there’s a claim, go and get a claim. Go to the Native Title Tribunal. Get it authorised. Come to the court. You can’t just disguise it – you know, it’s masquerading as a joinder when it’s actually a claim. Can I just ask if anything that I’ve said then is anything to which the respondents object or the native title applicant objects?

MR ATHANASIOU: I don’t object, your Honour, but I just point out that I think Mr Kerr’s problem will be authorisation.

HER HONOUR: Well, that’s another – that’s a completely different question. That is not something for me to be concerned about.

MR ATHANASIOU: No.

HER HONOUR: I’m simply saying what you would have to do. So the law is clear. If what you are actually asserting is a native title claim, you can’t get that across the line by masquerading as a joinder. Do you understand what I’m saying?

MR KERR: Yes.

HER HONOUR: And I’m not being – when I say “masquerading”, I don’t mean anything particularly malicious. I’m just saying people sometimes get confused, and they think joinder is the correct approach, but what they should be doing is bringing a native title claim. It’s quite limited. To be able to join, you have to be able to show individual interests. So that’s a very long-winded way, Mr Kerr, of saying I don’t think that the evidence which you have described, which you have carefully and tentatively described, would help me and is a reason – and should be accepted. So it wouldn’t help me. The other side objects. It’s too late. They’re all reasons to say no at this stage. And 4, you probably should be doing a claim, if that’s what you’re saying.

MR KERR: Yes, your Honour, and I appreciate it. My question to the court is if it’s impossible for me to…

HER HONOUR: I’m not saying anything is impossible at this stage, Mr Kerr. I’m still hearing you.

MR KERR: Yes. I

HER HONOUR: I’m just making observations.

MR KERR: I’ve done the right process of trying to get assistance for the claim in 2017 with no success, and the reasons that were given to me and the only reason that was given to me that – why my application for assistance was declined: because I tried to remove Cissy McGregor. Within that time period, no one came to me to find my strength, my weaknesses and new information. I’ve done that process. I appreciate the court letting me know that, but I’ve done that, and no one – with no avail to the assistance.

35    It appears plain from the materials before me that Mr Kerr’s application for joinder to the Jangga #2 claim followed, and was in substitution for, his unsuccessful attempts to obtain assistance from representative bodies in respect of his claim of native title rights over the claim area in the Yilba People.

36    As I explained to Mr Kerr at the hearing, to the extent that he sought recognition of his claim that land encompassed by the Jangga #2 claim was actually “Yilba” country, the appropriate avenue was by way of an application for Native Title, either wholly or partially overlapping with the area the subject of the Jangga #2 claim. Mr Kerr’s application for joinder on behalf of the Yilba People was not one which s 84(5) of the Native Title Act recognises.

37    It follows that, to the extent that Mr Kerr seeks joinder to the Jangga #2 proceedings on behalf of the Yilba People, his application should be refused.

38    It further follows that, to the extent that Mr Kerr seeks an order that he join the proceedings as Yilba People Respondent replacing any other existing respondents to the Jangga #2 claim (including Mr Masso), his application should be refused.

39    Mr Kerr’s interlocutory application filed 18 November 2022 should be dismissed.

CONSIDERATION: REMOVAL OF MR KERR AS A RESPONDENT

40    The second interlocutory application before me concerns orders sought by the Gudjala respondents pursuant to s 84(8) of the Native Title Act to have Mr Kerr removed entirely as a respondent to the proceedings. This is in circumstances where Mr Kerr is presently a respondent to the proceedings, but is plainly disavowing his Gudjala identity in the context of the proceedings in favour of his claim that the Yilba People have an interest.

41    Section 84(8) provides:

The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.

42    In my view it is appropriate that Mr Kerr be removed as a respondent.

43    First, as the High Court observed in Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd [2009] HCA 43; 239 CLR 75 at [28] the categories of abuse of process are not closed, and

... the courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of the procedural rules of court, would nevertheless be “manifestly unfair to a party to litigation ... or would otherwise bring the administration of justice into disrepute among right-thinking people”.

44    I am satisfied that Mr Kerr’s present conduct constitutes an abuse of the process of the Court in that he is plainly endeavouring to relitigate issues decided in the three earlier Gudjala consent determinations to which I have already referred, whereby Cissy McGregor was identified as a Gudjala apical ancestor. No evidence of any substance is before the Court to support an assertion that the earlier findings of the Federal Court in those consent determinations concerning Cissy McGregor were wrong. Mr Kerr’s assertions concerning Cissy McGregor’s identity as “Yilba” rather than Gudjala are inconsistent with the earlier determinations, and appear to be referable simply to the place she was born rather than any other anthropological or genealogical evidence. His assertions also run counter to lay evidence before the Court, in particular the evidence of Roe Hero and Tania Ault who are descendants of Cissy McGregor, that Cissy McGregor was a Gudjala person.

45    Second, as White J explained in Lander v State of South Australia [2016] FCA 307 at [73] 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 (see also Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia [2022] FCA 114 at [18]). Given Mr Kerr’s insistence that he is a Yilba person rather than Gudjala in relation to the Jangga #2 claim, and his further insistence that he be joined in a representative capacity on behalf of the Yilba People, I am satisfied that he no longer asserts a personal interest which may be affected by a determination in the proceedings.

46    Finally, given the issues pressed by Mr Kerr in these proceedings, I am persuaded that his continuance as a respondent would likely substantially interfere with the timely and efficient resolution of the Jangga #2 claim, and would be contrary to s 37M of the Federal Court of Australia Act 1976 (Cth).

47    It is appropriate that Mr Kerr be removed as a respondent to the substantive proceedings.

CONCLUSION

48    Mr Kerr’s interlocutory application filed on 18 November 2022 is dismissed. I am prepared to make the orders sought in the interlocutory application filed on 31 August 2023.

49    There is no order as to costs.

Associate:

Dated:    15 December 2023

SCHEDULE OF PARTIES