FEDERAL COURT OF AUSTRALIA Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland [2014] FCA 140 Citation: Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland [2014] FCA 140 Parties: ELIZABETH DEMPSEY, MARLENE SPEECHLEY, CHARLES PAGE, DAVID RILEY, MAVIS SAMARDIN and THELMA PARKER ON BEHALF OF THE BULARNU, WALUWARRA AND WANGKAYUJURU PEOPLE v STATE OF QUEENSLAND, MOUNT ISA CITY COUNCIL, BOULIA SHIRE COUNCIL, CLONCURRY SHIRE COUNCIL, SOUTHERN CROSS FERTILISERS FORMERLY WMC FERTILISERS PTY LTD, AUSTRALIAN AGRICULTURAL COMPANY PTY LTD, AA COMPANY PTY LTD, FRANK STIRLING BLACKET, RAHDA BLACKET, GAMBAMORA INDUSTRIES PTY LTD ACN 009 941 173, GEORGE BURTON HACON, CATHERINE LOUISE MCLOUGHLIN, JOHN KENNEDY MCLOUGHLIN, MDH PTY LTD ACN 010 114 468, VENLOCK PTY LTD, LORNA ELIZABETH BOGDANEK, HACON HOLDINGS PTY LTD, ROBERT JOHN MCCONACHY T/AS ASHOVER PASTORAL COMPANY and MOUNT ISA MINES LTD File number: QUD 6115 of 1998 Judge: MORTIMER J Date of judgment: 24 February 2014 Legislation: Native Title Act 1993 (Cth) Date of hearing: 24 February 2014 Date of last submissions: 24 February 2014 Place: Brisbane Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 12 Counsel for the Applicants: Mr R Blowes SC and Ms S Phillips Solicitor for the Applicants: Queensland South Native Title Services Counsel for the State of Queensland: Ms H Bowskill QC Solicitor for the State of Queensland: Crown Law Counsel for Mrs Bogdanek: Mrs Bogdanek appeared in person Counsel for Mr Harbour: Mr Harbour appeared in person Counsel for Mr Hill: Mr Hill appeared in person Counsel for Cloncurry Shire Council, Boulia Shire Council and Mount Isa City Council: No Appearance Solicitor for Cloncurry Shire Council, Boulia Shire Council and Mount Isa City Council: Gilkerson Legal Counsel for the Pastoral Respondents: No Appearance Solicitor for the Pastoral Respondents: Thynne & Macartney Counsel for Southern Cross Fertilisers: No Appearance Solicitors for Southern Cross Fertilisers: King & Wood Mallesons Counsel for Mount Isa Mines Ltd: No Appearance Solicitor for Mount Isa Mines Ltd: Allens IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 6115 of 1998 BETWEEN: ELIZABETH DEMPSEY First Applicant MARLENE SPEECHLEY Second Applicant CHARLES PAGE Third Applicant DAVID RILEY Fourth Applicant MAVIS SAMARDIN Fifth Applicant THELMA PARKER Sixth Applicant AND: STATE OF QUEENSLAND First Respondent MOUNT ISA CITY COUNCIL Second Respondent BOULIA SHIRE COUNCIL Third Respondent CLONCURRY SHIRE COUNCIL Fourth Respondent SOUTHERN CROSS FERTILISERS FORMERLY WMC FERTILISERS PTY LTD Fifth Respondent AUSTRALIAN AGRICULTURAL COMPANY PTY LTD Sixth Respondent AA COMPANY PTY LTD Seventh Respondent FRANK STIRLING BLACKET Eighth Respondent RAHDA BLACKET Ninth Respondent GAMBAMORA INDUSTRIES PTY LTD ACN 009 941 173 Tenth Respondent GEORGE BURTON HACON Eleventh Respondent CATHERINE LOUISE MCLOUGHLIN Twelfth Respondent JOHN KENNEDY MCLOUGHLIN Thirteenth Respondent MDH PTY LTD ACN 010 114 468 Fourteenth Respondent VENLOCK PTY LTD Fifteenth Respondent LORNA ELIZABETH BOGDANEK Sixteenth Respondent HACON HOLDINGS PTY LTD Seventeenth Respondent ROBERT JOHN MCCONACHY T/AS ASHOVER PASTORAL COMPANY Eighteenth Respondent MOUNT ISA MINES LTD Nineteenth Respondent JUDGE: MORTIMER J DATE OF ORDER: 24 FEBRUARY 2014 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The interlocutory applications of Mr Travis Harbour and Mr James Hill, dated 7 February 2014, be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 6115 of 1998 BETWEEN: ELIZABETH DEMPSEY First Applicant MARLENE SPEECHLEY Second Applicant CHARLES PAGE Third Applicant DAVID RILEY Fourth Applicant MAVIS SAMARDIN Fifth Applicant THELMA PARKER Sixth Applicant AND: STATE OF QUEENSLAND First Respondent MOUNT ISA CITY COUNCIL Second Respondent BOULIA SHIRE COUNCIL Third Respondent CLONCURRY SHIRE COUNCIL Fourth Respondent SOUTHERN CROSS FERTILISERS FORMERLY WMC FERTILISERS PTY LTD Fifth Respondent AUSTRALIAN AGRICULTURAL COMPANY PTY LTD Sixth Respondent AA COMPANY PTY LTD Seventh Respondent FRANK STIRLING BLACKET Eighth Respondent RAHDA BLACKET Ninth Respondent GAMBAMORA INDUSTRIES PTY LTD ACN 009 941 173 Tenth Respondent GEORGE BURTON HACON Eleventh Respondent CATHERINE LOUISE MCLOUGHLIN Twelfth Respondent JOHN KENNEDY MCLOUGHLIN Thirteenth Respondent MDH PTY LTD ACN 010 114 468 Fourteenth Respondent VENLOCK PTY LTD Fifteenth Respondent LORNA ELIZABETH BOGDANEK Sixteenth Respondent HACON HOLDINGS PTY LTD Seventeenth Respondent ROBERT JOHN MCCONACHY T/AS ASHOVER PASTORAL COMPANY Eighteenth Respondent MOUNT ISA MINES LTD Nineteenth Respondent JUDGE: MORTIMER J DATE: 24 FEBRUARY 2014 PLACE: BRISBANE REASONS FOR JUDGMENT (Delivered Ex Tempore and Revised) 1 By way of interlocutory applications filed on 7 February 2014, Mr Travis Harbour and Mr James Hill seek orders pursuant to s 84(5) of the Native Title Act 1993 (Cth) joining them as respondents to this proceeding. Mr Hill is a member of the claim group but seeks to be joined as a respondent. In that sense he would then be on both sides of this proceeding. He has made no application to be removed from the Bularnu, Waluwarra and Wangkayujuru (BWW) claim group. Mr Harbour is married to Tracey Harbour who is a member of the BWW claim group. 2 Mr Hill has an interest in the determination in this proceeding as a member of the claimant group. Whether Mr Harbour has an interest which may be affected by a determination of native title in this proceeding is not a straightforward issue. It is true he does not claim to be the holder of native title rights in the claim area, but the concept of an interest under s 84(5) of the NTA is wider than that. Mr Harbour has interests. There is no doubt of that. He claims he has interests on the basis of his own immediate family, and he has interests because of his involvement in Waluwarra culture by having gone through the law, by having been taught Waluwarra language, and having learned many customs and traditions from the people he describes as his two mothers-in-law, Enid Hill and Eileen Belia. 3 I have not formed a concluded view whether that is a sufficient interest for the purposes of s 84(5). Mr Harbour says, and Mr Hill says, that to leave Ringa or Jimmy Major and his wife, Jinny, out as apical ancestors is wrong. They say these people should be acknowledged as apical ancestors in this claim. 4 It may be that there is, at a factual level, something in what they both say, or it may not. Neither has adduced enough evidence before the Court on their applications by which such claims can be properly assessed. But, even if I was to give Mr Harbour the benefit of the doubt on whether he has a sufficient interest under s 84(5), both his application and the application by Mr Hill are simply too late. 5 These proceedings have had a long history. Since 1998, on one version of the history of these proceedings, and then since 2002 on another version, there have been native title claims in this Court over this area. Dr Kingsley Palmer's first report was produced more than four years ago, in 2009. It is what Dr Palmer says in that report about Ringa Major in particular, and Dr Palmer's uncertainty and ultimate conclusion that he should not be identified as an apical ancestor, that both Mr Harbour and Mr Hill complain about. 6 Given Mr Harbour's wife's position as a claimant and his claim to be closely involved and connected with matters to do with Waluwarra culture, there is no explanation for the delay in making this application which outweighs the substantial disruption, delay, expense and prejudice which would be caused were Mr Harbour and Mr Hill to be joined, and were this Court to embark on a further journey to determine whether Ringa Major and Jinny should be identified as apical ancestors. The answer to that question is not a simple one. 7 I have reached these conclusions in particular when the evidence before me, through Mr Hegedus's affidavit, demonstrates that the terms of the proposed native title determination, including the identification of apical ancestors, have been available to members of the claimant group, including Mr Harbour's wife and Mr Hill himself, for some time. 8 There is insufficient evidence to back up the claims that Mr Hill and Mr Harbour make about the position of Ringa Major, and it is unclear who, if anyone, is being shut out of a determination made in her or his favour by reason of Ringa Major and Jinny not being identified as apical ancestors. 9 I am further satisfied that both Mr Hill and Mr Harbour's wife, Tracey, had an opportunity to give Dr Palmer whatever information they wished about Ringa Major and Jinny when he interviewed them in January 2007. There is no reason to believe Dr Palmer would have refused to consider any information Mr Harbour had wished to provide him at that stage. I do not understand that the information that Mr Harbour and Mr Hill seek to provide is anything that could not reasonably have been discovered then, should they have wished to do so. 10 Finally, I am satisfied that both Mr Harbour and his wife and Mr Hill knew about the hearings in Mount Isa in October 2013 and could have sought to raise these matters then, whether they could do so in person or by written application. 11 I do not question the sincerity of either Mr Harbour or Mr Hill in making these applications, and I wish to make that clear. The fact is, however, that in these kinds of proceedings there may always be more material and more information that could be found and more arguments that could be made. That is the nature of the subject matter with which native title deals. But the Court's ultimate duty is to hear and determine a proceeding and to bring claims to a conclusion. In doing so, it must adopt fair processes, but fairness cuts in many directions, and the Court must balance a lot of different interests in deciding how the matter should proceed. 12 This proceeding is in its very final stages, and I'm not persuaded that the matters which Mr Hill and Mr Harbour seek to raise should be permitted to interrupt the finalisation of the applicant's claims and Mrs Bogdanek's arguments about some of those claims. So, for those reasons, the applications are dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer . Associate: Dated: 14 May 2014