Rangiah J
In this matter the Court considered an interlocutory application for orders dismissing 6 people, Ms Juanita Johnson, Ms Hunter, Ms Hulthen, Ms Lisa Johnson, Ms Evelyn Johnson (Johnson Parties) and Mr Robert Tonga, as parties to the proceedings in accordance with s 84(8) of the Native Title Act 1993 (Cth) (NTA)
Johnson Parties
Rangiah J noted that the Johnson Parties became a party pursuant to s 84, by filing a notice in accordance with Form 5 of the NTA. The Johnson Parties asserted in the notice that they are members of a group of indigenous persons known as the Wierdi People who hold native title rights and interests in the area claimed by the applicant in the proceeding.
The applicant relied upon the report of an anthropologist, Mr Daniel Leo, whose opinion was that Mary Johnson was connected to the Clermont area. As the area of the applicant’s claim was far to the north-east of Clermont this suggested the Johnson Parties' assertion that they hold native title interests in the claim area cannot be correct. Another anthropologist, Dr Alison Pembroke, directly expressed the opinion that the Johnson Parties do not hold native title interests in the applicant’s claim area.
The Court found that:
the Johnson Parties claim that they hold native title rights and interests in the claim area through an apical ancestor is unsupported by evidence and allowed for no more than mere speculation that they may have interests which may be affected by a determination of native title; and
there is evidence that they in fact have no native title interests in the claim area.
In the circumstances, the Court concluded that it was appropriate to exercise the Court’s discretion under s 84(8) to remove the Johnson parties.
Mr Tonga
Mr Tonga's Form 5 stated, at [14], "I am Googaburra clan and have strong cultural connections with coastal areas within the Yuwibara claim. I am a traditional elder. I have been excluded from any meeting and decision making. I have more right than these people."
Rangiah J noted that Mr Tonga had been served with the interlocutory application and supporting affidavits but did not appear at the hearing.
The Court relied upon Dr Pembroke’s anthropological report to conclude that Mr Tonga is a member of the claim group and noted that there was no evidence supporting or explaining Mr Tonga’s assertion that he has been excluded from meetings and decision-making.
Rangiah J observed that the circumstances in which a dissenting member of a native title claim group will be permitted to remain a respondent party are rare and it had not been shown that there are circumstances that make it appropriate for Mr Tonga to remain a party.
After the hearing Mr Tonga filed a notice to cease to be a party, which required leave of the court under s 84(7). As Mr Tonga's application was filed after the application for his removal the Court considered it appropriate to proceed under s 84(8) and dismiss Mr Tonga as a party.
Court Orders
The Court ordered that Ms Juanita Johnson, Ms Hunter, Ms Hulthen, Ms Lisa Johnson, Ms Evelyn Johnson and Mr Robert Tonga be dismissed as parties to the proceedings.