In this matter, Rangiah J ordered that Trevor Maxwell Lamb be joined as a respondent to the Gaangalu claim pursuant to s 84(5) of the Native Title Act 1993 (Cth) (NTA).
Mr Lamb was previously a respondent to the Gaangalu claim, but withdrew. Mr Lamb is a member of the applicant which brought an application for a determination of native title on behalf of the Warrabal People (QUD580/2017). That claim wholly overlapped the Gaangalu claim. In September 2018, the Warrabal applicant was granted leave to discontinue the claim: see Anderson on behalf of the Warrabal People v State of Queensland [2018] FCA 1365. His Honour’s reasons in that matter should be read together with these reasons. Mr Lamb’s application to rejoin the Gaangalu claim has been made in anticipation of the Warrabal claim being discontinued.
The applicant in the Gaangalu claim opposed Mr Lamb’s application for joinder. The applicant submitted that Mr Lamb had not demonstrated a prima facie case that he has an interest that may be affected by a determination of that claim. It also submitted that Mr Lamb having been a party, made a deliberate decision to withdraw, and should be held to that decision. Further, the Gaangalu applicant claimed that it will be prejudiced if the joinder is allowed.
Mr Lamb’s grandmother, Mary Ann Lamb, was born in about 1870 and lived most of her life in the area surrounding Mount Morgan until her death in 1948. Mr Lamb deposed that he was told by his father that Mount Morgan and the catchments of the Dee and Don Rivers were part of the traditional country of Mary Ann Lamb. Those areas are within the Gaangalu claim area. Mary Ann Lamb has not been named as an apical ancestor of the Gaangalu claim group and is not otherwise recognised in the application as having had native title interests in those areas. Mr Lamb therefore opposes the Gaangalu application.
The Gaangalu claim group made a decision in 2016 not to include Mary Ann Lamb as a Gaangalu ancestor. Mr Lamb then gave his solicitors instructions to file a notice that he no longer wished to be a respondent. That notice was filed on 1 March 2017. The explanation he provided for that step is that: 'Almost three years after joining, it seemed to me that I would never have my interests recognised through being a respondent to GNP.'
At a meeting in 2017 Mr Lamb and eight other people were authorised to make the Warrabal claim. The Warrabal application was filed in October 2017. Registration of the claim was rejected under s 190A(6B) of the NTA on the basis that it was not properly authorised. The Warrabal applicant, including Mr Lamb, accepts that the Warrabal claim was not properly authorised and is therefore fundamentally and fatally flawed. They sought leave to discontinue the Warrabal claim for this reason.
Mr Lamb sought to rejoin the Gaangalu application in order to oppose it, in light of the failed Warrabal application. At [20] Rangiah J accepted that Mr Lamb has demonstrated a prima facie case that he, as Mary Ann Lamb’s descendant, is a person who now holds rights and interests that may be affected by a determination in the Gaangalu application.
Rangiah J did not consider that Mr Lamb had provided a satisfactory explanation for his conduct in seeking to rejoin the proceeding as a respondent after having withdrawn. Despite this, his Honour permitted the application for the following reasons:
there is limited relevant prejudice to the Gaangalu applicant;
the proceeding has not yet been set down for trial and is still progressing through a series of programming orders;
Mr Lamb has demonstrated a prima facie case, that he is a holder of native title rights and interests in part of the Gaangalu claim area which may be defeated by a determination;
It is very unlikely that any future Warrabal claim could successfully be authorised, and as such, Mr Lamb’s only real prospect of opposing the Gaangalu claim lies in his being a respondent.
Rangiah J concluded at [33] that 'In circumstances where he has demonstrated an arguable case that he holds rights and interests in the area, it would be harsh to deprive him of that opportunity. While I have been critical of his conduct, I do not think that his conduct is such as to disqualify him from being afforded the opportunity of opposing the Gaangalu claim.’
His Honour ordered that Mr Lamb be joined as a respondent and that any orders that the applicant may propose as to the consequences of any failure by Mr Lamb to comply with the programming orders will be considered by the Court, which may include an order that the applicant be at liberty to apply under s 84(8) of the NTA for an order that Mr Lamb cease to be a party to the proceedings. Any application for costs will also be heard.