Background
Through an interlocutory application filed on 11 November 2021, Melita Dawn Dolan sought orders to be joined as a respondent to the claim pursuant to s 84(5) of the Native Title Act 1993 (Cth) (NTA). Ms Dolan claimed to be a Mitakoodi person who held native title rights and interests within the claim area, through descent of an ancestor, Billy Chisholm. At the time of the case, the native title claim group did not include Billy Chisholm as an apical ancestor.
The native title claimant application on behalf of the Mitakoodi People was filed on 9 July 2015 and registered between 25 September 2016 on 8 November 2019 and again from 21 February 2020 to the day of trial. The applicants were Tanya Kum Sing, Pearl Connelly, Kay Douglas, Norman Douglas, Ronald Major, and Edward Ah Sam. This claim covered lands and waters in north-west Queensland taking in Cloncurry just west of that town and eastward toward, but not including Julia Creek.
Evidence
Ms Dolan relied on the affidavit of Melita Dawn Dolan filed on 11 November 2021 and the affidavit of Andrew Robert Rayner, an anthropologist, filed on 10 November 2021. The native title applicant relied on the affidavits of Colin Stanley Hardie filed on 16 December 2021, Edward Ah Sam filed on 16 December 2021 and Tanya Kum Sing filed on 16 December 2021.
Mr Rayner, an anthropologist who was employed by Queensland South Native Title Services, provided evidence of his genealogical investigation into a person named ‘Billy’. Mr Rayner also produced a map which depicted the location referred to in Ms Dolan’s affidavit.
Considerations
Whether Ms Dolan satisfied the criteria set out in 84(5) of the NTA
Whether Ms Dolan had a relevant interest
Whether Ms Dolan’s interests may be affected by a determination in the proceedings
The interests of justice
Decision
Her Honour noted that it was only necessary for Ms Dolan to establish a prima facie native title right or interest in the claim area, therefore, it was not necessary for the Court to determine whether Ms Dolan was of Mitakoodi descent. Her Honour inquired into whether Ms Dolan satisfied the criteria in s 84(5) of the NTA, where it was held Ms Dolan’s ‘interests may be affected’, since the Courts have historically broadly construed that term.
The Court then considered whether Ms Dolan had a relevant interest in the claim area. Ms Dolan provided evidence that she was born in 1957 in Cloncurry, Queensland and had lived there all her life. Ms Dolan also deposed other information regarding an interest to the claim area, such as teaching her children the importance of showing respect to the country. The Court also considered Mr Rayner’s investigation, which further supported Ms Dolan’s claim.
Her Honour rejected Ms Kum Sing’s submissions that the claim group was limited to those who principally identified as Mitakoodi. However, it was held this evidence did not foreclose the question of Ms Dolan’s claim through her ancestor. Ms Kum Sing’s additional evidence was not accepted since it was not an answer to Ms Dolan’s prima facie interest in the claim area.
Perry J also considered the meeting of the Mitakoodi claim group on 6 July 2019, which Ms Dolan attended. The applicants contented that, having applied their traditional laws and customs, Ms Dolan was not a Mitakoodi person. While accounts of this meeting were contradictory, both accounts suggested that there was an acceptance of the Tim family, and therefore Ms Dolan, by some members of the native title claim group who attended the meeting. Thus, Perry J concluded there was no evidence put forward by the applicant to suggest that Ms Dolan failed to establish a prima facie interest in the claim area.
The Court then inquired into whether Ms Dolan’s interests may be affected by a determination in the proceedings. In finding that Ms Dolan did not wish to assert native title rights to defeat the Mitakoodi People’s claim, her Honour concluded that Ms Dolan’s interest would be adversely affected if her application for joinder was dismissed.
Her Honour considered the following in determining that it was in the interest of justice to allow the application for joinder:
Ms Dolan explained the reasons for the delay in bringing her application for joinder and the application was not unreasonably late.
Ms Dolan may be able to seek review by analogy to relief of fraud on the power exercised when she was wrongly excluded from the native title claim group.
Ms Dolan could not seek a native title claim on her own under s 61(1) of the NTA.
For the reasons set out above, Perry J held Ms Dolan’s application for joinder should be allowed.