A Ngunnawal council is not allowed to join a court case in which Ngambri people are fighting for recognition as traditional owners in the eyes of the Territory’s government, but they will still have a voice in the proceedings.
The legal challenge, launched by Ngambri and Ngunnawal custodian Paul Girrawah House and his mother Dr Matilda House, is seeking to overturn a government policy that claims the Ngunnawal people are the only traditional owners of the land in what is now Canberra.
They argue their human rights have been breached as the Ngambri and other traditional custodians have been denied the right to maintain and develop their connection to Country, as well as having that connection recognised.
Roslyn Brown from the United Ngunnawal Elders Council asked to join the proceedings as a defendant on Friday (18 November).
But Chief Justice Lucy McCallum ultimately told the ACT Supreme Court she did not think that would be appropriate because “in a strict legal sense” the rights of the Ngunnawal would not be affected by the relief the Houses were seeking.
However, she also said it was clear the Ngunnawal had an interest in the case and it would be fair for them to have “some voice”, so she granted an alternative application which means Ms Brown and any other person she nominates can be called as a witness.
Including their voice would be the best way in ensuring the conclusion of the case was both legally robust and earned the respect of the community, she said.
Earlier, Ms Brown’s barrister Prue Bindon had argued if the case was successful then there was a concern about what the Government would do, as well as the effect on the “identity and culture of the Ngunnawal people”.
Also, she said becoming a party would allow her client to participate in any mediation process and make submissions on evidence.
But the Houses’ barrister Brodie Buckland said if this happened then Ms Brown would be afforded certain rights, such as opposing any settlement between his clients and the Government or possibly delaying proceedings.
“This protocol breaches the human rights of the Ngambri people,” he said.
“The entire point of this case is to open up the tent for everyone to have the equal right for participation.
“It is not to delegitimise anything that has been done in the past.”
When granting the alternate application, Chief Justice McCallum also said she would entertain a proposal for Ms Brown to make closing submissions at the end of the proceedings.
The matter was adjourned to 17 February 2023. A hearing has been listed for that May.