Rangiah J
In this matter the Court considered an application by Mr Dale Ruska and Ms Tracie Kaden to be joined as respondents to a native title determination application of the Quandamooka People over Moreton Island in South-East Queensland.
The respondents to the principal proceedings were the State of Queensland, Brisbane City Council, Commonwealth of Australia and others named in the Schedule.
Background
The hearing of an application for a consent determination of native title in the principal proceeding had been set down for 27 November 2019. The application for joinder was filed on 31 October 2019 and was listed for hearing on an urgent basis, given that its success would inevitably require adjournment of the consent determination hearing.
The joinder applicants sought to join the proceeding in order to bring a proposed interlocutory application to:
Declare the invalidity of decisions made by the native title claim group on 30 September 2019 to defer research into the composition of the claim group and authorise the consent determination and two Indigenous Land Use Agreements (ILUAs).
Compel the native title applicant to instruct their legal representatives to take steps to obtain expert evidence about the composition of the claim group and assist the claim group to determine its composition; and
Declare that decisions of the kind made on 30 September 2019 must be made in accordance with a mandatory traditional decision-making process.
The joinder applicants are members of the claim group and claimed that:
the current claim omits two apical ancestors;
should include the descendants of a person omitted as an ancestor;
approximately 50 descendants of William Morten who now live in New Zealand and other locations in Queensland were omitted from the claim group and were not invited to participate in the authorisation meeting;
an apical ancestor who is not a Quandamook ancestor has been included;
the composition of the claim group has not yet been the subject of expert anthropological review for the claim group;
the notices advertising the authorisation meeting were defective because they did not address traditional decision-making processes;
the only written information provided to the claim group about a contested apical ancestor dealt only in a summary way; and
the applicant must demonstrate that all of the meeting attendees were entitled to vote at the meeting.
The joinder application was opposed by the native title applicant.
Consideration
The Court considered the following factors relevant to the interests of justice:
The prospects of success of the proposed interlocutory application;
The utility of any joinder;
The potential for prejudice to the claim group as a whole and to the respondents, who have agreed to resolve the proceedings by consent
The stage of the proceedings at which the application for joinder has been made; and
Any alternative means by which the joinder applicant can pursue their concerns.
Conclusion
Rangiah J noted that the occasions when a member of claim group will be permitted to become a respondent to proceeding for a determination of native title will be rare because the Native Title Act 1993 (Cth) provides a detailed process for authorisation of a determination application, provides authority for the applications to deal with the application and the process for replacement of the applicant. Dissenting members of the group will not ordinarily be permitted to join a proceeding in order to dispute the decisions of the claim group and its authorised representatives.
Having regard to the limited strength of the case put forward by the joinder applicants, the lack of utility in allowing them to join in order to pursue their arguments about the composition of the claim group, the very late stage at which they sought to join the proceedings, the failure to demonstrate any prima facie case of failing to comply with a mandatory traditional decision-making process, prejudice to the parties, the lack of evidence that any non-member voted at the authorisation meeting and the availability of other mechanisms for addressing their concerns, Rangiah J refused the joinder application.
Orders
The application for joinder be dismissed.