Kinjun on behalf of the Gulngay People v State of Queensland
[2016] FCA 1605
•21 July 2016
FEDERAL COURT OF AUSTRALIA
Kinjun on behalf of the Gulngay People v State of Queensland [2016] FCA 1605
File number: QUD 308 of 2014 Judge: DOWSETT J Date of judgment: 21 July 2016 Catchwords: NATIVE TITLE – application to be joined as a respondent – where the application can best be resolved by requiring the interlocutory applicant to file a statement of claim Legislation: Federal Court of Australia Act 1976 ss 31A, 84(5) Date of hearing: 21 July 2016 Registry: Queensland Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 5 Solicitor for the Applicant: Mr M Dore of North Queensland Land Council Solicitor for the Respondent, State of Queensland: Ms S Svensson of Crown Law Solicitor for the Respondent, Cassowary Coast Regional Council: Ms J Humphris of MacDonnells Law Counsel for the Interlocutory Applicant, Ms N Miller: Mr R Carroll Solicitor for the Interlocutory Applicant, Ms N Miller: Just Us Lawyers ORDERS
QUD 308 of 2014 BETWEEN: DORIS KINJUN, CLARENCE KINJUN AND JOANNE KINJUN ON BEHALF OF THE GULNGAY PEOPLE
Applicant
AND: STATE OF QUEENSLAND AND OTHERS NAMED IN THE SCHEDULE
Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
21 JULY 2016
THE COURT ORDERS THAT:
1.the interlocutory applicant, on or before 1 September 2016 file and serve a statement of claim in support of the application to be joined, identifying in particular the factual basis upon which she proposes to resist the relief sought in the principal proceedings, all other considerations upon which she relies in seeking the exercise of the discretion conferred by section 84(5) of the Native Title Act 1993 (Cth), and all other facts upon which she relies in support of her application for joinder;
2.the interlocutory application be referred to the Registrar for case management in conjunction with the case management of the principal proceedings;
3.the costs of the application be reserved; and
4.the application be adjourned to a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DOWSETT J:
I am taking an unusual course in these proceedings. Hopefully, it is in the long-term best interests of the parties and, hopefully, it is in the long-term best interests of the administration of justice. I am dealing with an application to join Narelle Miller as a respondent to an application for a determination as to the existence of native title. It appears from the material that she has, in effect, been appointed to defend the interests of another native title group, although she does not purport to act on their behalf, or to assert rights other than the rights which she may have with respect to the land which is the subject of the native title application. In the course of argument, it has emerged that there are a number of difficult questions arising in connection with the matter, not least of which is an assertion by the applicant in the principal proceedings that the interests claimed by Ms Miller’s group, the Jirrbal People have been compromised or, perhaps more accurately, that there is evidence contradicting such claims arising from previous dealings between a senior member of the group and an anthropologist.
As I see it, the evidence concerning that matter really goes to the capacity of Ms Miller to maintain at least part of the basis upon which she seeks to, or will seek to resist a determination that Native Title exists in respect of part of the land claimed pursuant to the principal application. Such question would, in normal litigation, be determined or might well be determined on a summary application pursuant to s 31A of the Federal Court of Australia Act 1976 (the “Federal Court Act”). The second issue concerns the circumstances in which an indigenous person who claims to be a member of a group claiming to hold native title rights and interests can be joined as a respondent in native title proceedings. There is a line of cases in which this has been permitted. However there is a possible inconsistency between the joinder of such a person and the requirements of Pt 3, Div 1 of the Federal Court Act.
In the present case, the matter is complicated by the fact that it has been made clear to me that there is no immediate prospect of the relevant group making an application for its own determination. It is incongruous, and largely undesirable that a group or individual member of a group should be able to prevent a determination in favour of an applicant without itself commencing proceedings in which its own claim may be appropriately decided. I consider that this application can best be resolved by requiring a statement of claim by the present interlocutory applicant, identifying the basis upon which she proposes to resist a determination in favour of the applicant in the principal proceedings, and identifying the matters of discretion upon which she seeks to rely.
She should also identify any other facts upon which she relies in order to support her application for joinder. It is my expectation that upon the service of such a document, the applicant in the principal proceedings will either accept it and consent to joinder (or I will order joinder), or the applicant in the principal proceedings will make an application pursuant to s 31A of the Federal Court Act.
In those circumstances, I propose to order that:
1.the interlocutory applicant, on or before 18 August 2016 file and serve a statement of claim in support of the application to be joined, identifying in particular the factual basis upon which she proposes to resist the relief sought in the principal proceedings, all other considerations upon which she relies in seeking the exercise of the discretion conferred by section 84(5) of the Native Title Act 1993 (Cth), and all other facts upon which she relies in support of her application for joinder;
2.the interlocutory application be referred to the Registrar for case management in conjunction with the case management of the principal proceedings;
3.the costs of the application be reserved; and
4.the application be adjourned to a date to be fixed.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 31 July 2016
SCHEDULE OF PARTIES
QUD 308 of 2014 Respondents
CASSOWARY COAST REGIONAL COUNCIL
COMMONWEALTH OF AUSTRALIA
ERGON ENERGY CORPORATION LIMITED ACN 087 646 062
STEPHEN ESSERY
DESMOND GARY FINLAY
TED LOVEDAY
THOMAS JAMES NEIL
DANIEL ALEXANDER POPE
MICHAEL WAYNE WOOD
STEPHEN PETER VALERIANO
SUSAN JANE VALERIANO
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