Federal Court of Australia

Dallachy on behalf of the Barada Kabalbara and Yetimarala People v State of Queensland [2024] FCA 444

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 26 March 2024 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 Jean Moran (the joinder applicant) filed an interlocutory application dated 26 March 2024 by which she seeks to be joined as a respondent to the principal proceedings, otherwise known as Sam Dallachy & Others on behalf of the Barada Kabalbara & Yetimarala People v State of Queensland & Others (QUD13/2019 and QUD15/2019) (the BKY #1 & BKY #2 claims).

2    There is no dispute that, in addition to being a member of the Barada Barna Aboriginal Corporation RNTBC (ICN 8343) following the Barada Barna Native Title Determination in 2016 (QCD2016/009) (Budby on behalf of the Barada Barna People v State of Queensland (No 7) [2016] FCA 1271), Ms Moran is and has been a member of the BKY claim applicant since the claim was initially authorised in 2013.

3    As required by r 34.105 of the Federal Court Rules 2011 (Cth), Ms Moran has filed affidavit evidence outlining how her interests may be affected by a determination of native title in the proceeding, pursuant to s 225 of the Native Title Act 1993 (Cth), and why it is in the interests of justice for the Court to grant her application. She relies on her two affidavits: one filed on 26 March 2024 (the First Moran Affidavit), and another filed on 10 April 2024 (the Second Moran Affidavit).

4    The reason for Ms Moran’s application appears to be twofold. First, she challenges the inclusion of ‘Unnamed Barada Woman’ as an apical ancestor in the BKY #1 & BKY #2 claims. In oral submissions, Ms Moran said she wants “unknown Barada Barna off the native title”. This is of particular concern to Ms Moran, as it is allegedly from ‘Unnamed Barada Woman’ that Mr George Budby is descended (First Moran Affidavit, [13]), and through him, Mr Sam Dallachy, the lead applicant. She contends that she is unable to access necessary information to enquire into her concern unless she is a party to the proceedings.

5    Secondly, Ms Moran asserts that her rights and interests in the BKY claim area “will be affected by a determination to the wrong Applicant group”: First Moran Affidavit, [8]. Precisely how that is so was not articulated.

6    Both the claim applicant and the State of Queensland, the first respondent in these proceedings, oppose Ms Moran’s joinder. The claim applicant relied on two affidavits of Ms Ciarra Annalisse Vu, an anthropologist, filed on 9 April 2024 (the First Vu Affidavit), and 17 April 2024 (the Second Vu Affidavit) respectively. The State relied on the affidavit of Ms Jasmine Monique Patterson, filed on 8 April 2024 (the Patterson Affidavit).

The basis for joinder

7    Section 84(5) of the Native Title Act 1993 (Cth) (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.

8    In Barunga v State of Western Australia (No 2) [2011] FCA 755, Gilmour J, at [164], set out the mandatory considerations for the Court to determine an application under s 84(5). On the facts of this application, it is appropriate to deal with (a) and (b) together.

(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.

Ms Moran’s interest

9    Dealing, first, with Ms Moran’s interest, a determination of native title under the NTA can only result from a native title determination under s 225. A person joined as a respondent party cannot use his or her status as respondent as an avenue for such a determination: Moses v Western Australia [2007] FCAFC 78; 160 FCR 148 at [18]; Commonwealth of Australia v Clifton [2007] FCAFC 190; 164 FCR 355 at [61]; Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [19] per Reeves J.

10    In the context of this application, it is useful to describe the requisite nature and content of an interest for the interest holder to be joined under s 84(5), as I set out in Braun on behalf of the Jirrbal People #4 v State of Queensland [2023] FCA 306 at [11]:

It is … well established that an interest sufficient to be joined under s 84(5) 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 only “an emotional, conscientious, ideological or intellectual kind”: Arakwal People at 7-9.

(Emphasis added.)

11    The position is further explained by McKerracher J in A. D. (Deceased) on behalf of the Mirning People v State of Western Australia (No 2) [2013] FCA 1000 at [56]:

Although there is a broad discretion conferred by s 84(5) NTA, the question of whether or not the discretion should be exercised in favour of joining a person as a party will depend on the circumstances of each case including the history of the matter. It must be apparent that there is at least prima facie an interest warranting exercise of the discretion under s 85(5) NTA: Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 per Reeves J (at [8]) and Wakka Wakka People # 2 v State of Queensland [2005] FCA 1578 per Kiefel J (at [6]). A fact to bear in mind is that once a person is joined as a party he or she has the power to veto the process of mediation and conciliation that the NTA favours. This makes it all the more important that the interest is capable of clear definition and of a character that may be affected in a demonstrable way by the determination in relation to the application: Byron per Black CJ (at 7-8). In Isaacs, Reeves J concluded that the interlocutory applicants had shown at least on a prima facie basis that the native title rights and interests which they claimed to hold could be affected by a determination of the application, however, joinder was not permitted. His Honour held (at [18]) that it was now well settled law that:

where a person is seeking to be joined as a respondent to a native title proceeding on the basis that he or she claims to hold native title rights and interests in an area of land or waters that may be affected by a determination in those proceedings … [that is permissible only] if he or she wishes to pursue a personal claim or interest in defensively asserting those native title right or interests or, in other words, to protect them from erosion, deletion or discount.

    (Emphasis added.)

12    In the Statement of Agreed Facts (SOAF) between the State and the Applicant, filed on 3 July 2023, the “BKY People” are defined to mean “the descendants (including by adoption or raising up) of one or more of the agreed Apical Ancestors as identified at paragraph 3 below”. Paragraph 3 of the SOAF identifies the following Apical Ancestors, relying on the Report of Conference of Experts held on 10, 11 and 17 February 2022, dated 4 March 2022:

(a)    Unnamed Barada Woman (spouse of Johnny and Charlie Budby);

(b)    Lucy and/or Jimmy Barber;

(c)    Kitty (aka Kitty Eaglehawk);

(d)    Yatton Boney;

(e)    Maggie (mother of Jack Mack and Gypsy Tyson); and

(f)    King Boco.

13    As has already been observed, Ms Moran is already a member of the claim applicant. Ms Moran describes herself as “a proud Barada/Barna woman” and “a direct maternal bloodline descendant of King Bocoo [sic], and an unnamed Barada woman, mother of Rosie Barba”: First Moran Affidavit, [1]. Ms Moran has, however, apparently resiled somewhat from the latter connection and is no longer sure that she is in fact descended from an ‘Unnamed Barada Woman’.

14    Ms Moran clearly has interests that may be affected by a native title determination in these proceedings. So much cannot be reasonably disputed. Those interests are, however, coterminous with all other members of the claim applicant. She is apparently concerned that a determination in favour of the claim applicant “will affect [her] ability to be notified of activity on [her] country, and to continue [her] cultural practices on country”: First Moran Affidavit, [8]. This concern is misconceived. Again, as is apparent from the SOAF – in particular, at section B(V) – the native title rights and interests to be recognised in the event of a determination vest in all members of the claim applicant equally.

15    Consequently, in order to be joined as a party under s 84(5), Ms Moran must identify some interest different from that of the claim applicant as a whole, which may be affected in a demonstrable way by a determination. So much was made plain by Reeves J in Parkin on behalf of the Quandamooka People v State of Queensland [2020] FCA 1132, in which his Honour was faced with an application for joinder by three persons who asserted an interest as Quandamooka persons. Reeves J held at [16]:

… although they both have an interest in the claim area which may be affected by a determination of native title in this proceeding, I do not consider it is in the interests of justice that they be joined as parties to the proceeding. That is because the interests they both advance in their affidavits are as members of the Quandamooka People through their status as descendants of Dandruban, also known as Charlie Moreton. Since those People are the same Quandamooka People who are defined as the claim group in the present proceeding, namely the descendants of a group of apical ancestors which includes “Charlie Moreton (Dandruba) [sic]”, Ms Charlton and Mr Coghill have not shown why their interests should be treated any differently from the interests of all the other members of the Quandamooka People.

16    It is difficult not to conclude that the intention of Ms Moran’s application is merely to stall the proceedings until she has sufficient information to satisfy herself of the true identity of ‘Unnamed Barada Woman’, and therefore, of the legitimacy of the Dallachy family’s claim. This intention can be readily inferred from her stated wish to become a “third party in the negotiating circle”: Second Moran Affidavit, [13]. On the evidence adduced, however, and taking Ms Moran’s concern at its highest, her existing rights and interests as a member of the claim group, and which she claims by descent from King Boco, cannot be diminished by the inclusion of the descendants of George Budby.

17    Before the filing of this application, there were numerous opportunities for Ms Moran to participate in decision-making processes about the constitution of the claim application, as is evident from the First Vu Affidavit. The BKY #1 Claim was filed on 2 July 2013 and registered on 2 October 2014. It has been amended twice – on 21 August 2014 and 8 August 2023. The BKY #2 Claim was filed on 12 July 2013 and registered on 23 August 2013. It has been amended three times – on 26 August 2014, 2 October 2019 and 8 August 2023: First Vu Affidavit, [4].

18    Ms Moran initiated contact with the Queensland South Native Title Service (QSNTS) on 1 July 2021. Correspondence between Ms Moran and QSNTS ensued over the next two years: First Vu Affidavit, [13]-[19]. In April 2023, QSNTS provided travel assistance to Ms Moran and her family to attend a BKY native title claim group meeting scheduled for 29 April 2023, to provide Ms Moran with the opportunity to present her reasoning in support of including King Boco in the BKY claim group, as her ancestor: First Vu Affidavit, [20]. Ms Moran’s attendance at this meeting was recorded: First Vu Affidavit, [22].

19    On 31 May 2023, a notice for an authorisation meeting to be held on 24 June 2023 was sent to all of the BKY People in the QSNTS database, which included Ms Moran. Additionally, the meeting was advertised in newspapers on 2 June 2023: First Vu Affidavit, [24].

20    On 19 June 2023, Ms Moran attended an online family group meeting for the BKY People, who are descendants of Lizzy/Kitty/‘Unnamed Barada Woman’ and King Boco, which group includes Ms Moran, regarding proposed amendments to the BKY claim group description. The amendments were to be considered at an upcoming authorisation meeting on 24 June 2023: First Vu Affidavit, [24]-[26].

21    Two authorisation meetings were facilitated by QSNTS on 24 June 2023 in Rockhampton. The first considered amendments to the claim group description, and the second appointed a new applicant for the claim group: First Vu Affidavit, [8]. As Ms Moran had advocated, the first meeting authorised the inclusion of King Boco – among others – in the claim group: First Vu Affidavit, [28], [9]. Ms Moran did not attend either meeting, but was informed of their outcomes by letter sent on 31 July 2023: First Vu Affidavit, [27]-[28].

22    The fact that Ms Moran has not been similarly successful in agitating against the continued inclusion of George Budby does not afford her an interest that is sufficient to support her joinder to the proceedings. As Logan J said in Butterworth v Queensland [2010] FCA 325; 184 FCR 397 at [39]:

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.

23    It is apparent that, in totality, Ms Moran’s complaint rises no higher than an intramural dispute with which the Court cannot be involved. As Rangiah J said in Anderson on behalf of the Quandamooka People (Mulgumpin/Moreton Island Claim) v State of Queensland [2019] FCA 1886 at [41]:

If the joinder applicants seek to be joined in order to dispute the claim group’s determination of its own composition, I am not satisfied that this is an appropriate purpose. It has been held that, notwithstanding s 225A of the Act, the composition of the claim group is a matter for intramural determination: Starkey at [55]; Blucher on behalf of the Gaangalu People v State of Queensland [2019] FCA 108 at [12]. It is also relevant, at this late stage of the proceeding, that the State has indicated that it will consent to the determination, including the description of those who are the persons holding the common or group rights comprising the native title. The State has obligations to both indigenous and non-indigenous citizens: Munn (For and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [30]. It may be assumed that the evidence has satisfied the State as to the persons who hold the rights comprising the native title.

(Emphasis added.)

24    For these reasons, I am not satisfied that Ms Moran has any interest distinct or separate from that of the claim applicant, which may be affected by a determination of native title in the application area in favour of the claim applicant.

The interests of justice

25    Given the conclusion I have reached in relation to Ms Moran’s asserted interest, it is strictly unnecessary for me to consider whether, had I reached a different conclusion, it would nevertheless have been in the interests of justice for me to exercise my discretion to join Ms Moran as a party. It is, however, desirable to record matters that would have told against the exercise of the discretion in Ms Moran’s favour.

26    The principles relevant to the exercise of the discretion were summarised by Gilmour J in Barunga at [201]:

[201]    The following factors are relevant to the exercise of the Court’s discretion:

(a)    Proceedings for a determination of native title are proceedings in rem: they bind non-parties. It is also fundamental that an order which directly affects a third person’s rights or liabilities should not be made unless the person is joined as a party: Gamogab v Akiba (2007) 159 FCR 578 at [59], [60] per Gyles J.

(b)    Consideration of the rights and interests of the party joined would lead to a more accurate definition of the native title rights and interests claimed, including by limiting the scope of the rights and interests of an applicant: Akiba and Others on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 2) (2006) 154 FCR 513 at [37].

(c)    A party joined would also be able to protect the native title rights and interests they claim to hold from erosion, dilution, or discount by the process of the Court determining the claims of an applicant: Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [17].

(d)    Whether the interest asserted can be protected by some other mechanism. For example, a factor in the exercise of the discretion in Akiba was that the interests could be protected under the Torres Strait Treaty: Akiba at [38].

(e)    Whether the applicant for the determination would be prejudiced if the party applicant is joined: Worimi Local Aboriginal Council v Minister for Lands for New South Wales (2007) 164 FCR 181 at [37]; and

(f)    The history of the proceedings: Worimi at [5], [34].

27    As has already been observed, the BKY claims have been on foot now since 2013. The Court has heard two tranches of lay evidence on country – the first in November 2021, and the second in November 2022. The claim group description, as authorised by the claim group on 24 June 2023, became the subject of the SOAF: section B(I). Both claims are proceeding on the path to a consent determination later this year. Of course, the fact that proceedings are well advanced would not be, of itself, a sufficient reason to refuse an application such as this, if cogent evidence were to be adduced that cast serious doubt on the legitimacy of the claim group description in a manner which would affect the interests of an applicant for joinder. No such evidence has, however, been adduced.

28    Moreover, even had any such evidence been adduced, Ms Moran’s delay in bringing her application would have remained a significant obstacle to joinder at this stage of proceedings. As Mortimer J observed in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 1) [2021] FCA 1463, at [23]:

… in a native title case, there are times to speak up and there are times when it may be too late to speak up. There are times to object and there are times where it may be too late to object. … people cannot delay; they cannot wait until just before a big and expensive event like a consent determination and put forward a complaint that they could have made a lot earlier …

29    In my view, the time for Ms Moran to speak up or object has passed.

30    Further, Ms Moran has offered no explanation for the delay in bringing this application, particularly in circumstances where the evidence reveals she has been actively engaged in the claim since at least 2021. Cognisant as I am of the inherent difficulties in progressing native title applications to conclusion, those difficulties do not relieve parties from the obligations imposed on them by ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth); namely, to conduct proceedings in a way that is consistent with the overarching purpose of civil practice and procedure in the Federal Court of Australia, being to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible.

31    For these reasons, I am not satisfied that it would have been in the interests of justice for Ms Moran to be joined to the proceedings as a respondent party, even if she had made out a sufficient interest distinct or separate from that of the claim applicant.

DISPOSITION

32    The appropriate order is that Ms Moran’s interlocutory application be dismissed. No order as to costs was sought in the event that Ms Moran’s application was unsuccessful. Consequently, there will be no order as to costs.

Associate:

Dated:         2 May 2024