Introduction
In this case Coral Ann King applied to be joined as a respondent to the proceeding under s 84(5) of the Native Title Act 1993 (Cth) (NTA). The proceeding is a native title application made by Clancy John McKellar on behalf of the Wongkumara People over a parcel of land in south-west Queensland. In the joinder application, Mrs King claimed she had acquired native title rights and interests over the northern half of the Wongkumara claim area through her grandmother Toney Booth. Toney Booth was not included as one of 15 apical ancestors relied upon to make up the native title claim group. The Court decided it was not in the interests of justice to join Mrs King as a respondent.
Previous Judgments
The Court came to this conclusion on the basis that different members of the Booth family had been parties to three separate proceedings in relation to the Wongkumara claim area. The first involved Mrs King’s cousins Geoffrey Booth and Dennis Fisher. They were respondents in Wallace on behalf of the Boonthamurra People v State of Queensland [2014] FCA 901 (‘Wallace’). In this case, they claimed they had acquired native title rights and interests through their relation to Toney Booth and another Aboriginal woman named Clara. The Court decided that they had not acquired the claimed rights and interests because the country they were referring to was remote to the Boonthamurra claim.
In the second proceeding Geoffrey Booth and Dennis Fisher were respondents to the 2008 Wongkumara application. In 2016 they withdrew when the Wongkumara applicants brought an interlocutory application seeking their removal. In the third proceeding Mrs King, Geoffrey Booth and two others were applicants in Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638 (‘Booth’). The Court dismissed this application on the grounds that it was an abuse of process having regard to the findings in Wallace, and because it had no reasonable prospects of success.
Decision
His Honour concluded that to allow this joinder application would be to permit Mrs King to ignore the judgment in Booth, and to avoid the findings in Wallace and Booth. It would have allowed her to claim, in effect for the fourth time, that descent from Toney Booth founds native title rights and interests in relation to the Wongkumara claim area. As a party in Booth she was entitled to appeal the decision if she considered it incorrect and she did not do so. Instead through this joinder application she sought to make the same claim in relation to a subset of the same area based on the same apical ancestor. His Honour held that bringing similar claims in successive proceedings in this way amounted to an abuse of process, and the application was dismissed on these grounds.