In this case Reeves J considered an application for joinder under s 84(5) of the Native Title Act 1993 (Cth) (NTA) made by Ann-Marie Keating (a Muluridji person) under the Cairns regional claim and the Djabugay-Bulway-Yirrgay-Nyakali-Guluy People’s (DBYNG) claim. Ms Keating claimed to have an interest in both claims – on the grounds that her interest may be affected by a determination of native title in both areas. She sought to be joined as a respondent party in both proceedings under s 84(5) of the NTA. The application was opposed by the authorised applicants for the claim group in two claims, and neither opposed nor consented to by the State of Queensland (main respondent).
The Cairns Regional Claim covers an area of land and waters to the west and south west of Cairns extending to Mareeba and north to the southern area of Four Mile Beach. The DBYNG claim covered an area from the south-western tip of the Cairns Regional Claim to a point south of Mareeba. Ms Keating proposed she had an interest that extended through the western side of the Cairns Regional Claim that overlapped the entirety of the DBYNG claim area. Ms Keating filed interlocutory applications to become a respondent party to both native title claims outside of the notification period.
Ms Keating claimed that she is not a Djabugay person, but a Muluridji person. She claimed that her great grandfather and grandfather (William Shepherd) went to the area months before any Djabugay people were moved to there. Ms Keating was successful in having her mother’s great grandmother (Winmai) removed as an apical ancestor in the Cairns Regional Claim and continued to reject that she was a member of the DBYNG claim group.
Under section 84(3)(a)(ii) of the NTA, a person can elect to become a respondent party to a native title proceeding if he or she “claims to hold native title in relation to land or waters in the area covered by the application.” In that event, the person becomes a party by filing a notice in Form 5 under the Native Title (Federal Court) Regulations 1998 (Cth). Alternatively, a party may still apply under s 84(5). The disadvantage of applying under the latter provision is the party bears the onus of proving they have a sufficient interest and that it is in the interests of justice that he or she be joined as a party in the proceeding. The principles for sufficient interest have been laid out in Foster on behalf of the Gunggari People #4 v State of Queensland [2019] FCA 1300.
In regard to sufficient interest, the native title applicants disputed whether Ms Keating’s claims were supported by evidence in an affidavit by Kara Dunn, the North Queensland Land Council anthropologist. They also claimed, based upon the evidence from Ms Dunn that Ms Keating as a descendent of a Djabugay apical ancestor, is therefore correctly included in the DBYNG claim group. Reeves J at [19] rejected the applicants’ contentions on the basis that Ms Keating only had to establish her sufficient interest on a prima facie basis based on the principles of Foster. In regard to the interests of justice, Reeves J at [20] immediately rejected the claim that Ms Keating was a dissentient member of the applicant claim group on the basis that she was ‘steadfastly opposed to being treated as a member of both claim groups and is fundamentally opposed to the claims they are presently pursuing. Reeves J suggested she was in a position similar to the Chongs in Alvoen on behalf of the Wakaman People #3 v State of Queensland [2019] FCA 1469. He also dismissed that Ms Keating had not provided ‘satisfactory explanation for her delay in making these applications’ on the basis that the authorised applicants had not ‘suffered any prejudice as a consequence of her delay.’
However, his Honour did find that Ms Keating was seeking to act in a representative capacity on behalf of her family, clan or estate group. He noted at [21], ‘it is well established that a person cannot use his or her status as a respondent party to pursue a positive determination of native title, nor to act in a representative capacity on behalf of others’ (see also: Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321; Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599). His Honour also concluded that Ms Keating’s application did not disclose a “clear and legitimate objective” (see Far West Coast Sea Claim at [109]) and agreed that there would be ‘likely delays and expense' if Ms Keating were joined as a respondent party.
Reeves J concluded that Ms Keating had discharged her onus to establish on a prima facie basis that she had a sufficient interest in the areas of the two claims. He did not however, consider it in the interests of justice that she be joined as a respondent party in the proceedings. For these reasons, the application was dismissed.