Background
This case concerned a native title determination application which related to an area of land and waters near Cairns in northern Queensland. It is brought on behalf of the Yirrganudji (Irukandji) People. The respondents to this claim were four Aboriginal persons, Ms Sarah Addo, Mr Charles Kornell Addo, Mr Sam Addo and Ms Bernice Carole Dwyer (the respondents). The respondents became parties to this proceeding on the basis that they claimed to be “affected persons” within the meaning of s84(3) of the Native Title Act 1993 (Cth) (NTA).
In an interlocutory application, submitted on 19 July 2021, the applicant sought an order, pursuant to s84(8) of the NTA, removing the respondents as parties to the proceeding.
This claim is one of two claims brought on behalf of the Yirrganydji People in the same region. The other commenced in 2015 (Singleton on behalf of the Yirrganydji (Irukandji) People #2 v State of Queensland). There were three other overlapping claims brought in relation to land and waters in and around Cairns. One of these claims was brought on behalf of the Kunggandji Gurrabuna People (KGP claim), which was dismissed in its entirety by the Court in Martens on behalf of the Kunggandji Gurrabuna People of Kamoi (Kimoi or Kimuy) [2021] FCA 1577 (Martens). In Martens, the Court ordered mediation, which resulted in the adoption of a referees’ report and the parties executing an agreement. The relevant part of this agreement is detailed below:
3.1 The Parties agree to be bound by the findings of the referees’ report such that:
(a) each of them will discontinue their claims to native title (or withdraw any assertions of native title) that are inconsistent with those findings;
(b) each of the Applicants will amend the claim boundary of their native title determination applications to remove any territorial claim that is inconsistent with those findings;
(c) no party will oppose any application by any other party to amend their respective determination application/s consistently with those findings; and
(d) no party will object to a determination of native title in terms.
In accordance with the terms of the agreement reached in Martens, the respondents were legally represented and participated in the enquiry led by referees, pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) and r 28.61 of the Federal Court Rules 2011 (Cth). This report determined factual questions, bearing on the outcome of the claim. In the referee’s report, delivered on 6 March 2020, the referees found that the KPG claim wrongly stated that apical ancestors possessed native title rights and interests in the relevant area. On 1 April 2021, the Courts adopted this report and consequently, the KGP claim was dismissed.
Following the acceptance of the referee’s report, the respondents submitted affidavits in the present case, identifying their relations in the land and waters. This submission had no mention of the court’s adoption of the referee’s report or an acknowledgement of their obligations under 3(a) and (d) of the referee’s report.
Decision
The Court relied heavily on the reasons expressed in Martens in deciding that the respondents should be removed from these proceedings. Her Honour ruled that the native title rights and interests asserted by the respondents could no longer be factually maintained, and that if they were not removed as parties, the respondents would persist with contentions inconsistent with the Court’s adoption of the expert’s report in Martens, which would affect the orderly resolution of the remaining issues in the current proceeding.
Her Honour also concluded that the continued status of the respondents as parties to this proceeding would constitute unjustifiable oppression to the applicant, and the orderly resolution of the remaining issues should not be hindered by the maintenance of a defence that is inconsistent with the Court’s adoption of the referees’ report.
For these reasons, Charlesworth J made orders under s 84(8) of the NTA removing the respondents as parties to the proceeding.