Mamu People v State of Queensland

[2006] FCA 1563

FEDERAL COURT OF AUSTRALIA

Mamu People v State of Queensland [2006] FCA 1563

STEPHEN APPO AND GERALD RAYMOND APPO v MAMU PEOPLE, STATE OF QUEENSLAND, CAIRNS CITY COUNCIL, EACHAM SHIRE COUNCIL, JOHNSTONE SHIRE COUNCIL, QUEENSLAND LAPIDARY AND ALLIED CRAFTS CLUB ASSOCIATION, MARCUS BULSHADE, ERGON ENERGY CORPORATION LIMITED, PORTS CORPORATION OF QUEENSLAND, TELSTRA CORPORATION OF QUEENSLAND, CA & RA GIUENI, CG, MJ, DG & SE MORGAN, LJ, B, JM MCLELLAND, MR & MRS MCAVOY, MR CHRISTAVIDO, VARIOUS FISHERMEN, PJ & KM DRYDEN

QUD 6014 OF 2001

DOWSETT J
29 AUGUST 2006
CAIRNS

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 6014 OF 2001

BETWEEN:

STEPHEN APPO AND GERALD RAYMOND APPO
Applicant

AND:

MAMU PEOPLE
First Respondent

STATE OF QUEENSLAND
Second Respondent

CAIRNS CITY COUNCIL
Third Respondent

EACHAM SHIRE COUNCIL
Fourth Respondent

JOHNSTONE SHIRE COUNCIL
Fifth Respondent

QUEENSLAND LAPIDARY AND ALLIED CRAFTS CLUB ASSOCIATION
Sixth Respondent

MARCUS BULSHADE
Seventh Respondent

ERGON ENERGY CORPORATION LIMITED
Eighth Respondent

PORTS CORPORATION OF QUEENSLAND
Ninth Respondent

TELSTRA CORPORATION LIMITED
Tenth Respondent

CA & RA GIUENI
Eleventh Respondent

CG, MJ, DG & SE MORGAN
Twelfth Respondent

LJ, B, JM MCLELLAND
Thirteenth Respondent

MR & MRS MCAVOY
Fourteenth Respondent

MR CHRISTAVIDO
Fifteenth Respondent

VARIOUS FISHERMEN
Sixteenth Respondent

PJ & KM DRYDEN
Seventeenth Respondent

JUDGE:	DOWSETT J
DATE:	29 AUGUST 2006
PLACE:	CAIRNS

REASONS FOR JUDGMENT

1. This is a motion for the joinder of parties in an application for a native title determination. The motion is made pursuant to s 84(5) of the Native Title Act 1993 (Cth). The persons seeking to be joined are Stephen Appo and Gerald Appo. The nature of the interest claimed by those persons, for present purposes, appears from the affidavit of Gerald Appo, filed on 17 September 2004 as follows:

   ‘I am responding to the Mamu claim Q6014/01 of which I received a copy from the N.T.T. on August 30 2004, Neither myself, my father, my mother, or my grandmother are included in the claim.

   My father Steve Appo and myself request to be joined as a party to the Mamu claim, so as our interests will be adequately taken into account.

   Daradgee is our families heart land and spiritual place.  We feel responsible for its protection.  The area of main interest to us is an area of USL at Daradgee (2RP703998) and nearby rainforest and river front areas.  These area’s of rainforest are peaceful places that we believe are the spiritual resting place of our mother, grandmother, and others.  Our family lived at Daradgee for approximately 50 years, where we hunted and gathered food, planted trees, and provided guardianship for that country.’

2. In the course of argument, a further affidavit by Mr Gerald Appo was read.  That affidavit was filed on 30 January 2006.  There is some detail in that document concerning Mr Gerald Appo’s genealogy.  He alleges that his family, for many years, hunted and fished in the relevant area, and regularly had access to the river using the USL to which reference has previously been made.  He also refers to the presence of spirits in the area, and of his experience with them.  Significantly, the deponent also asserts that although he left the area, he encountered the spirits again, following the death of his mother.

3. For present purposes, the most critical paragraphs are 17, 18, and 19, where the deponent asserts:

   ‘I told my father of my dreams and we started returning to Daradgee to our old home, the river and the scrub where the spirits of our families remain. 

   We then learnt of the Ma-Mu people Native Title claim over our spiritual country, a place where we believe we have a great responsibility to take care of and speak for.  Not speak for ownership, not speak for greed, not speak for exclusive rights, but to speak for caring and sharing, to speak for respect, to speak for protecting a sacred site, speak for the spirits and their resting place.  This is our interest in this area.  Our interest is to protect the interests of our mother, grandmother, aunties and uncle, who have passed before us, to continue to access the area for hunting and gathering, and spending time in the bush and in the river where their spirits remain.

   It is our responsibility to teach our children about things so that they will continue to believe in who they are and where they belong, so as they may take their place as future leaders and custodians of country and tradition, learning the values of respect and responsibility (Aboriginal law) and never to forget the old people who have passed before them.’

4. There are also affidavits from Mr White, an anthropologist.  As I understand those affidavits, they are designed to support the claims made by Messrs Appo, based upon information provided to Mr White by them, particularly by Gerald Appo.  I do not understand those affidavits to offer any independent basis for the claims, other than by explaining them.

5. Much of the hearing today has involved a heated debate as to whether or not Messrs Appo are, in fact, of indigenous Australian descent.  The Native Title applicant in this case, through its counsel, strongly asserts that they are not.  The Appos submit that they are.  This matter is obviously of great significance to both groups, producing strong emotions and antagonism.  However, in the end, I do not consider that it is necessary for me to determine it today. 

6. It is true, as Mr Preston for the Native Title applicant has said, that much of the material filed in support of Messrs Appos’ application is suggestive of a claim for a native title determination. However Mr Appo has made it clear that he does not seek such a determination. He says that he is interested only in establishing an interest so that he can be joined with a view to protecting that interest. Such interest seems to be based upon the fact that the Appos claim to have grown up in close contact with Aboriginal people. There is no doubt a risk that his interest, although claimed for the purposes of s 84, might turn out to be within the definition of Native Title. That is, perhaps, the cause of concern to the Native Title applicants. However I consider that it is at least theoretically possible for a person, whether he or she be of indigenous Australian descent or otherwise, to claim an interest for the purposes of subs 84(5), which interest may be based upon Aboriginal life experiences, without its necessarily amounting to a claim for Native Title. For that reason, I consider that the only question for determination today is whether or not Messrs Appo have demonstrated an interest, for the purposes of subs 84(5) or possibly, as was suggested on behalf of the State of Queensland, s 84(5)(a).

7. This court has taken a somewhat generous view of what may constitute an interest for the purposes of s 84(5). See in particular, Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1, especially per Black CJ at 8 et seq.

8. It seems that an interest sufficient to satisfy the requirements of the section may be something other than a proprietary interest.  However the interest must be sufficiently particularised so that it can be protected.  At 8 and 9, the Chief Justice said:

   ‘Secondly, the limitations on the content of a “special interest” in the context of standing are at least influenced by the circumstance that if beliefs or concerns were, without more, sufficient to give their possessor the standing, the rule requiring a “special interest” would be meaningless …

   Where Parliament, by giving rights of an important character to those whose “interests are affected”, rather than to “any person”, has revealed an intention to require an interest greater than that of any member of the general public, it is unlikely that it intended to extend the notion of “interests” to something that any member of the public could assert, so as to deny significant practical effect to the requirement that a person have an interest greater than that of any ordinary member of the public.  So too with affectation.

   Moreover, when due consideration is given to the nature and content of the right to become a party to a native title application, there is good reason to conclude that the intended outer limits of the notions of “interests” and “affected”...  .fall short of giving a right to be parties to those whose “interests” are defined only by their emotional, intellectual, ideological or conscientious concerns.  If the Parliament had intended to give to any person who felt strongly about the matter a right to be a party with the consequences that entails, it would not have used the language of “interests affected”, …  Rather it would have used language such as appears in s 141(3) of the Act which allows “any other person” to become a party, with leave.  Of course, an interest sufficient for the purposes of (the Act) may well be accompanied by an emotional or intellectual concern, and none of this is to say that such concerns are in any way disqualifying, but they are not in themselves sufficient … .’

9. At 7, his Honour said:

   ‘The nature and content of the right to become a party to proceedings for the determination of native title with the power as a party in effect to veto the process of mediation and conciliation which the Act favours, suggests that the interests with which (the Act) and the related sections dealing with parties are concerned are interests that are not indirect, remote or lacking substance.  The nature and content of the right also suggests that the interests must be capable of clear definition and, equally importantly, that they are of such a character that they may be affected in a demonstrable way by a determination in relation to the application.’

10. This Court has, since that decision, proceeded upon the basis that a broad, but not unlimited, approach should be taken to the application of s 84(5). In the present case, Messrs Appos’ claim includes the spiritual significance to them of a particular block, but their actual physical connection to the land seems to be limited to a desire to visit it from time to time, either for spiritual purposes, which are unparticularized, or for hunting and other related activities. To the extent that the interest is purely spiritual, it would seem to me to fall within that category of interest which was excluded by the Court in Byron Environment Centre by virtue of its being an emotional, conscientious, ideological or intellectual interest. To the extent that the Appos are concerned with access, it is, as the State has submitted, more appropriate that an order be made pursuant to subs 84(5)(a).

11. There is no evidence as to historical use by the Appos of the land.  By that, I mean that there is no detailed evidence of the frequency with which they have visited the land, the actions which they have carried out there, or the identities of the people who went there.  Similarly, there is no evidence of the frequency with which they have visited the land for spiritual purposes, their activities there, and why it is said to be important to them.  In those circumstances, I consider that the evidence fails to identify with sufficient particularity the interest which is claimed.

12. Joinder of a party for the purpose of prosecuting a claim which is imprecise may seriously disrupt the conduct of proceedings.  This is particularly so in proceedings of the present kind.  Notwithstanding the fact that Messrs Appo say they do not intend to make a Native Title claim, the potential similarity of their claimed interest to a Native Title claim is likely seriously to confuse the issues.  Although those matters may go to the exercise of the discretion, my decision to refuse the application is based upon the Appos’ failure to identify the claimed interest with sufficient particularity.  The motion will be dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:        5 December 2006

Counsel for the Applicant:	The Applicants on the motion appeared in person.
Counsel for the First Respondent:	Mr A Preston
Solicitor for the First Respondent:	North Queensland Land Council
Counsel for the Second Respondent:	Ms C Klease
Solicitor for the Second Respondent:	Crown Law
Solicitor for the Third-Eighth Respondents:	MacDonnells
Solicitor for the Fourth Respondent:	Gore and Associates
Solicitor for the Ninth-Thirteenth Respondents:	C J Cooper and Associates
Date of Hearing:	29 August 2006
Date of Judgment:	29 August 2006