Collier J
In this decision, Collier J dismissed applications from Ms Juanita Johnson and Ms Vassa Hunter seeking to be joined as respondents to native title proceedings on the basis that they are descendants of Mary Johnson, also known as Mary of Clermont.
Background
In Butterworth on behalf of the Wiri Core Country Claim v State of Queensland (No 2) [2014] FCA 590 (see summary of decision in June 2014 What’s New), Collier J identified that certain decisions made at an authorisation meeting were valid. One change to the claim group authorised at that meeting was the removal of Mary Johnson as an apical ancestor. Mary Johnson had linked the two applicants to the native title claim group and, by her removal, the two could only remain as parties if the Court allowed them to be joined as respondents, pursuant to s 84(5) of the Native Title Act 1993 (Cth) (NTA).
Considerations
Section 84(5) of the NTA empowers the Court to join a party to proceedings if satisfied that the person's interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.
Collier J considered various authorities and legal propositions. Her Honour considered the notion of “interests” for the purposes of s 84(5) NTA, which has a broader meaning than “interests” for the purposes of s 253 NTA in relation to land or waters.
Decision
Collier J determined that the joinder applicants do not have interests which rise above an interest that an ordinary member of the public might hold and which may be affected by a determination in the proceedings for the following reasons:
the evidence of Ms Johnson and Ms Hunter demonstrates that while they identify as “Widi”, this does not necessarily equate to an interest beyond a mere emotional, conscientious or intellectual interest in the specific lands the subject of the native title claim;
none of the place names – other than Nebo – mentioned by Ms Johnson and Ms Hunter in their evidence are within the borders of the area described in the Widi #1 native title claim and the areas described by both witnesses are extremely extensive, and appear to overlap into lands already the subject of claims by groups including the Wangan and Jangalingou People, the Western Kangoulu People, the Barada Kabalbara Yetimarala People, and the Bidjara People.
the anthropological evidence showed family connections to the Clermont district rather than the lands within the borders of the native title claim;
the Apical Ancestor known as Mary Johnson is not a Widi Apical Ancestor.
Finally, Collier J placed weight on the legitimacy of the decision making process under which Mary Johnson was removed as an apical ancestor in the native title claim.
Collier J concluded, at [41], that allowing the applicants to be joined would re-open matters determined by the claim group and resolved by orders of the Court and would jeopardise conduct of the proceedings at this point.