Sandy on behalf of the Yugara People v State of Queensland

[2014] FCA 243

FEDERAL COURT OF AUSTRALIA

Sandy on behalf of the Yugara People v State of Queensland [2014] FCA 243

Citation:	Sandy on behalf of the Yugara People v State of Queensland [2014] FCA 243
Parties:	DESMOND SANDY ON BEHALF OF THE YUGARA/YUGARAPUL PEOPLE, RUTH JAMES, PEARL SANDY, CONNIE ISAACS ON BEHALF OF THE TURRBAL PEOPLE and MAROOCHY BARAMBAH v STATE OF QUEENSLAND, BRISBANE CITY COUNCIL, MORETON BAY REGIONAL COUNCIL, REDLAND CITY COUNCIL, TELSTRA CORPORATION, GARRY MURPHY, BRISBANE PORT HOLDINGS PTY LTD, EDDIE RUSKA, LOGAN CITY COUNCIL, APT PETROLEUM PIPELINES PTY LTD, COMMONWEALTH OF AUSTRALIA, THE SHELL COMPANY OF AUSTRALIA LTD (ACN 004 610 459), INCITEC FERTILIZERS LTD, MOONIE PIPELINE COMPANY PTY LTD and CENTOR AUSTRALIA PTY LTD
File numbers:	QUD 586 of 2011 QUD 6196 of 1998
Judge:	JESSUP J
Date of judgment:	19 March 2014
Catchwords:	NATIVE TITLE – interlocutory application under s 84(5) of the Native Title Act 1993 (Cth) for joinder as respondent party to a native title determination application – whether interlocutory applicant’s interests could be affected by the substantive proceedings – interlocutory applicant alleges misrepresentations by second applicant in the substantive proceeding in relation to the interlocutory applicant’s ancestry – alleged misrepresentations not a sufficient basis for joinder
Legislation:	Native Title Act 1993 (Cth) s 84(5)
Cases cited:	Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942
Date of hearing:	17 March 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	7
Counsel for the First Applicants:	Ms R James and Ms P Sandy appeared in person for the first applicants
Counsel for the Second Applicant:	Ms M Barambah appeared in person for the second applicant
Counsel for the Applicant in Interlocutory Application filed 10 March 2014:	Ms Hannam appeared in person
Counsel for the First Respondent:	Ms H Bowskill QC
Solicitor for the First Respondent:	Crown Law
Counsel for the Second to Fifteenth Respondents:	The Second to Fifteenth Respondents did not appear.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 586 of 2011 QUD 6196 of 1998

BETWEEN:

DESMOND SANDY ON BEHALF OF THE YUGARA/YUGARAPUL PEOPLE
First Applicant

RUTH JAMES
First Applicant

PEARL SANDY
First Applicant

CONNIE ISAACS ON BEHALF OF THE TURRBAL PEOPLE
Second Applicant

MAROOCHY BARAMBAH
Second Applicant

AND:

STATE OF QUEENSLAND
First Respondent

BRISBANE CITY COUNCIL
Second Respondent

MORETON BAY REGIONAL COUNCIL
Third Respondent

REDLAND CITY COUNCIL
Fourth Respondent

TELSTRA CORPORATION
Fifth Respondent

GARRY MURPHY
Sixth Respondent

BRISBANE PORT HOLDINGS PTY LTD
Seventh Respondent

EDDIE RUSKA
Eighth Respondent

LOGAN CITY COUNCIL
Ninth Respondent

APT PETROLEUM PIPELINES PTY LTD
Tenth Respondent

COMMONWEALTH OF AUSTRALIA
Eleventh Respondent

THE SHELL COMPANY OF AUSTRALIA LTD
(ACN 004 610 459)
Twelfth Respondent

INCITEC FERTILIZERS LTD
Thirteenth Respondent

MOONIE PIPELINE COMPANY PTY LTD
Fourteenth Respondent

CENTOR AUSTRALIA PTY LTD
Fifteenth Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	19 MARCH 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.Pauline Hannam’s application to be joined as a party in this proceeding be refused.

2.Costs be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 586 of 2011 QUD 6196 of 1998

BETWEEN:

DESMOND SANDY ON BEHALF OF THE YUGARA/YUGARAPUL PEOPLE
First Applicant

RUTH JAMES
First Applicant

PEARL SANDY
First Applicant

CONNIE ISAACS ON BEHALF OF THE TURRBAL PEOPLE
Second Applicant

MAROOCHY BARAMBAH
Second Applicant

AND:

STATE OF QUEENSLAND
First Respondent

BRISBANE CITY COUNCIL
Second Respondent

MORETON BAY REGIONAL COUNCIL
Third Respondent

REDLAND CITY COUNCIL
Fourth Respondent

TELSTRA CORPORATION
Fifth Respondent

GARRY MURPHY
Sixth Respondent

BRISBANE PORT HOLDINGS PTY LTD
Seventh Respondent

EDDIE RUSKA
Eighth Respondent

LOGAN CITY COUNCIL
Ninth Respondent

APT PETROLEUM PIPELINES PTY LTD
Tenth Respondent

COMMONWEALTH OF AUSTRALIA
Eleventh Respondent

THE SHELL COMPANY OF AUSTRALIA LTD (ACN 004 610 459)
Twelfth Respondent

INCITEC FERTILIZERS LTD
Thirteenth Respondent

MOONIE PIPELINE COMPANY PTY LTD
Fourteenth Respondent

CENTOR AUSTRALIA PTY LTD
Fifteenth Respondent

JUDGE:	JESSUP J
DATE:	19 MARCH 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an Interlocutory Application by Pauline Hannam to be joined as a party in this consolidated proceeding, pursuant to s 84(5) of the Native Title Act 1993 (Cth). The court may join a party under that provision if it 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”.

2. Ms Hannam is a person of indigenous blood, but she does not seek to be joined as an applicant. Indeed, she could not be joined as an applicant under s 84(5): Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [18]-[19]. She seeks to be joined as a respondent to resist the claims of the second applicant, Ms Barambah on behalf of the Turrbal people. For that purpose, she needs to show both that her interests may be affected by the determination which the Turrbal people seek and that it is in the interests of justice for her to be joined.

3. The Turrbal people seek a determination that native title exists in relation to the claim area, namely, an area which extends, generally, from the North Pine River to somewhat north of the Logan River and to about Moggill in the west, and which includes the city of Brisbane and its metropolis.  They seek also a determination that the persons presently holding the common or group rights comprising that native title are the biological descendants of Connie Isaacs, being the only known descendants of the Turrbal man known as the “Duke of York”, and the only known descendants of those people who comprised the Turrbal people as at 7 February 1788.

4. Ms Hannam is not a descendant of Connie Isaacs. She has the same father as, but a different mother from, Ms Barambah. If she would otherwise be a member of the group in whose favour a determination should be made in relation to the claim area, the determination sought by the Turrbal people would cut her out from the enjoyment of the native title to which she was presumptively entitled. She submitted, rather tentatively I thought, that she was part of the Yugara claim group, but the present is not the occasion to enter upon that question. By the submission which she made and the terms of her affidavit in support, exclusion, or threatened exclusion, from either of the groups in whose interests the present proceeding is being conducted is not the basis of her case for joinder under s 84(5).

5. Rather, Ms Hannam says that the genealogical case being presented by the Turrbal people contains factual inaccuracies – indeed, misrepresentations – about her own ancestors.  Those inaccuracies were reflected in private correspondence and conversations between her, or her daughter, and Ms Barambah.  The point of contention seems to be whether a woman who spent part of her life in the Mary Valley in the early years of the twentieth century, Bella Crowe, was her (Ms Hannam’s) great great grandmother.  Ms Hannam appears to be concerned to put the record straight, and to ensure that Ms Barambah is not permitted to secure a finding from the court which is inconsistent with what she knows to be the case.

6. Whether Bella Crowe was the great great grandmother of Ms Hannam is not an issue in this proceeding.  Ms Barambah, whose final written submissions have been filed, has not sought a finding on that subject.  The identity of this Bella, and of her husbands or partners, are relevant in the case, and it may be that, if findings are made in a certain way, implications will be open with respect to subsequent generations which Ms Hannam would wish to contest.  But this is a very different area of concern, in my view, from one in which Ms Hannam’s interests would be affected by any determination which the court would, or might, make as a result of its findings.  If there is such a determination, it will relate to native title, not to Ms Hannam’s own ancestry.

7. Since Ms Hannam’s application is based on her concerns about genealogical findings to which I have referred, I am not persuaded that her interests may be affected by the native title determination which Turrbal people seek.  It follows that her application for joinder must be refused.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:       19 March 2014