FEDERAL COURT OF AUSTRALIA

Edwards on behalf of the Wongkumara People v State of Queensland [2014] FCA 282

THE COURT ORDERS THAT:

1.    Queensland South Native Title Services Limited is joined as a respondent party to the proceedings.

2.    Maureen Mavis Hill is joined as a respondent party to the proceedings.

3.    Kathleen Edith Rodgers is joined as a respondent party to the proceedings.

4.    Lynette Joyce Mieni is joined as a respondent party to the proceedings.

5.    James Charles Taylor is joined as a respondent party to the proceedings.

6.    Christine Margaret Murphy is joined as a respondent party to the proceedings.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This decision concerns two applications to be joined as respondents to these proceedings. The first application in time (filed 9 August 2013) was that filed by Queensland South Native Title Services (Queensland South), the native title representative body for the southern half of Queensland. The second application (filed 27 August 2013) was that filed by five individuals: Ms Maureen Mavis Hill; Ms Kathleen Edith Rodgers; Ms Lynette Joyce Mieni; Mr James Charles Taylor; and Ms Christine Margaret Murphy. They all claim to be Wongkumara People. For convenience, except where the context dictates otherwise, I will refer to these five individuals collectively as the Hill applicants and their application as the Hill application.

2    For the reasons that follow, I consider both applications should be granted.

Overview of the Wongkumara claim

3    Although similar applications had been filed and discontinued in the past, the present proceedings were commenced on 11 March 2008 when a native title determination application was filed on behalf of the Wongkumara People (the Wongkumara application). That application was later amended on 22 September 2009. According to the amended Wongkumara application, the applicant is comprised of eight individuals. For convenience, I will refer to those individuals collectively throughout these reasons as the Wongkumara applicant. The Wongkumara applicant has been represented throughout these proceedings by Eddy Neumann Lawyers.

4    The claim made by the Wongkumara applicant relates to an area of land and waters that extends from Milparinka in New South Wales, approximately 33.75 km south of the border with Queensland, to an area near Lake Yamma Yamma in Queensland, approximately 131.25 km north of the border, along the Queensland-South Australia border in the west and an area near the Grey Range, approximately 37.5 km from Eromanga in Queensland in the east.

5    In the amended application, the Wongkumara claim group is described in Schedule A as: “all those persons named in Attachment ‘A’ and their biological descendants”. Attachment A does not, as is commonly the case, describe the claim group as comprising the descendants of certain named apical ancestors. Instead, it names over 200 individuals, arranged in subgroups under the name of a deceased parent.

6    During the hearing of this matter, Mr Tokley SC, counsel for the Wongkumara applicant, foreshadowed an application to amend Schedule A to the Wongkumara application to, among other things, state that all those persons named in Attachment A were descendants of certain named Wongkumara apical ancestors. From the bar table, he read out the names of seven such apical ancestors. Furthermore, he advised that the Wongkumara applicant may hold a meeting of the entire Wongkumara claim group in the coming months to consider the composition of the Wongkumara claim group. Mr Tokley said that the Wongkumara applicant had not previously sought to arrange a meeting of the whole claim group to avoid the significant costs associated with holding such a large meeting. In the meantime, Mr Tokley said the Wongkumara claim group had been making decisions based upon the votes of the authorised representatives of each family within the claim group (see [8] below).

7    The initial catalyst for Queensland South’s application was a series of complaints it received from a number of Wongkumara People about the manner in which the Wongkumara claim was being conducted. As a result, it arranged a meeting at Dubbo, New South Wales on 15 June 2013. That meeting was attended by 91 people, 79 of whom the Wongkumara applicant accepts are members of the Wongkumara claim group. During that meeting a decision-making process was adopted whereby resolutions were to be voted on by a show of hands of all the persons present. Thereafter, using that decision-making process, the meeting purported to pass a resolution terminating the retainer of Eddy Neumann Lawyers as the lawyers for the Wongkumara applicant and replacing them with Queensland South.

8    In response to this development, the Wongkumara applicant itself convened a meeting at Dubbo on 10 and 11 July 2013. That meeting was attended by 543 members of the Wongkumara claim group. The resolutions passed at that meeting included the following:

[(a)]    That this meeting accepts that the Wongkumara People have a traditional decision making process which is as follows:

(a)    The Elders of each Family Group after consulting with such members of the Family Group as they choose make a decision in relation to:

(i)    the question being asked or the motion being put;

(ii)    the appointment of a Family Group representative to pass that decision on and to engage in discussions with the representatives of the other Family Groups in relation to the matter in question.

(b)    A decision for the Claim Group as a whole is then made by those representatives by consensus or overwhelming majority;

[(b)]    That the so called “resolutions” purportedly made [at Dubbo] on 15 June 2013 are not recognised as valid resolutions made by the Wongkumara People as they were not made in accordance with its traditional decision making process;

[(c)]    That, if it is necessary to do so and, to the extent permitted by law, each and every one of the so called “resolutions” made [at Dubbo] on 15 June 2013 is hereby revoked;

[(d)]    That the legal representative of the Native Title Claim Group in the Federal Court proceedings, Eddy Neumann Lawyers, are confirmed to be, and continue to be, instructed by the Wongkumara People in accordance with its traditional decision making process; and

[(e)]    That, for the avoidance of doubt, we, the Wongkumara People, do not want [Queensland South] to represent the Native Title Claim Group or the Applicant in the Federal Court Proceedings.

9    Mr Eduard Neumann, the principal of Eddy Neumann Lawyers, has deposed in an affidavit that, following a mediation that was conducted with the Hill applicants in September and October 2013, the following events occurred:

10.    On 12 and 13 November 2013, there was a meeting of the family group representatives and elders of the claim group represented by the Applicants. I attended that meeting. The following were also present:

…

[18 persons are named]

11.    On 13 November 2013, that meeting resolved unanimously that each of the [Hill] applicants, and the family groups of which they were part, would not be accepted into the Wongkumara claim group.

10    The present applications were set down for hearing soon after the abovementioned mediation failed to achieve any resolution of the issues in dispute between the Wongkumara applicant and the Hill applicants. While the substantive proceedings remain in case management with a view to progressing them to a consent determination, none of the respondent parties has indicated it will agree to the terms of any consent determination.

Section 84(5) of the Native Title Act 1993 (Cth)

11    Section 84(5) of the Native Title Act 1993 (Cth) (the NTA) provides:

The Federal Court may at any time join any person as a party to the proceedings, if the Court is 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.

(Emphasis added)

12    In the recent decision of Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 (Far West Coast), Mansfield J helpfully outlined the three elements that need to be considered in determining an application under s 84(5), as follows:

26    It is established that the following elements must be considered when making a decision under s 84(5) (as it stood prior to the 2007 amendment):

(a)    whether the person has an interest;

(b)    whether the interest may be affected by a determination in the proceedings; and

(c)    whether, in any event, in the exercise of its discretion the Court should join the person as a party.

See generally Barunga v State of Western Australia (No 2) [2011] FCA 755 at [164] (Barunga) per Barker J [sic Gilmour J]; Akiba v Queensland (No 2) (2006) 154 FCR 513 at [32] per Finn J; Worimi Land Council v Minister for Lands (NSW) (2007) 164 FCR 181, 183–184 [4] per Bennett J.

27    Element (c) is really the same as asking whether it is in the interests of justice for the Court to join a person as a party. For that reason, Barker J [sic Gilmour J] did not regard the 2007 amendment as altering the substantive effect of s 84(5): Barunga at [163].

13    The 2007 amendment referred to by his Honour was the insertion of the concluding words of s 84(5): “and it is in the interests of justice to do so” by the Native Title Amendment Act 2007 (Cth). I agree with Mansfield J and Gilmour J that the addition of those words does not alter the substantive effect of s 84(5).

14    I will deal with each application for joinder separately, in the order in which they were filed.

The Queensland South application

15    Queensland South is a recognised native title representative body under s 203AD of the NTA. As such, it has been given responsibility for representing the interests of native title holders in an area which broadly encompasses southern Queensland. As is already noted above, that area includes the claim area of the Wongkumara claim which falls within the State of Queensland. That accounts for more than two-thirds (approximately) of the claim area. Mr Tim Wishart, the principal legal officer of Queensland South, has filed several affidavits in support of Queensland South’s application. In those affidavits, he claims that, if it were joined as a party to these proceedings, Queensland South would better be able to “fulfil its statutory function to assist those who may hold native title to progress their claim” and to assist in resolving any disputes that may arise during the conduct of the Wongkumara claim consistent with its functions under s 203BB of the NTA.

16    There can be little doubt that Queensland South, as the relevant representative body for at least a significant part of the Wongkumara claim area, has a sufficient interest that may be affected by a determination in the proceedings to meet the first two elements identified above. There are numerous judgments of this Court to that effect: see Simms v Minister for Land and Water Conservation (NSW) (2002) 193 ALR 257; [2002] FCA 15 at [24]; Bissett v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365 (Bissett) at [22]–[25]; Gale v New South Wales Minister for Land & Water Conservation [2002] FCA 972 at [5]; Woodridge v Minister for Land and Water Conservation (NSW) (2002) 122 FCR 190; [2002] FCA 1109 at [15]; Connelly on behalf of the Mitakoodi and Mayi People #1 v State of Queensland [2009] FCA 1181 at [3]; and MT (deceased) v State of Western Australia [2013] FCA 1302 at [56] (MT). Indeed, so much is apparently accepted by the Wongkumara applicant, because it opposed the Queensland South application solely on discretionary grounds, that is, the third element identified in Far West Coast above.

17    As to that element, Mr Tokley, for the Wongkumara applicant, submitted that, apart from making general statements about its statutory duties, Queensland South had not demonstrated any specific reason why it should be joined as a party to these proceedings. Moreover, he submitted that Queensland South had aligned itself with a small dissentient group within the Wongkumara claim group, and joining it as a party would impede, rather than assist, it in discharging its statutory functions. In making this submission, Mr Tokley placed heavy reliance on the decision of Drummond J in Kooma People v State of Queensland [2002] FCA 86 (Kooma), particularly his Honour’s remarks at [18] to [19] as follows:

18    There is a total absence of evidence before me to suggest that joinder is necessary to enable the Corporation to properly perform any of its statutory functions. In other words, there is a total absence of any evidence to suggest that, though this claim has been on foot since 1996, there is now some situation that has emerged which would impede the Corporation from performing its statutory functions if it is not able to be joined as a respondent party.

19    Mr Maurice says that if joinder were permitted, it would be in a situation of being able to monitor and oversee the conduct of the proceedings, to obtain information, to be served with documents and the like. All that may be true, but there is no suggestion that the Corporation has sought and been refused information necessary to enable it to perform its functions from anyone associated with the litigation, including Mr Wharton.

(Emphasis added)

18    Furthermore, Mr Tokley submitted that Queensland South had not established why, given that these proceedings have been on foot for six years, it is now necessary that it be joined as a party. In this regard, he added that the Wongkumara applicant would, if requested, provide Queensland South with access to all materials filed in the Court in these proceedings.

19    In response, Mr O’Gorman SC, for Queensland South, stated that it was difficult for Queensland South to be more specific in outlining its possible future role in the proceedings, as it could not predict how the proceedings might develop. However, Mr O’Gorman emphasised that Queensland South was conscious of its statutory role as defined in the NTA and if it were joined as a party, consistent with that role, it would act to ensure it did not support any particular faction or interest group within or outside (in the case of the Hill applicants) the Wongkumara claim group. Mr O’Gorman submitted that the present circumstances were markedly different to those in Kooma.

20    As a native title representative body, Queensland South has been given a range of statutory functions under the NTA. In MT, Barker J (at [57]) emphasised that those statutory functions were: “important and broad functions”. His Honour observed that (at [35] and [42]):

35    Representative bodies under the NTA have significant and important functions to facilitate the achievement of the objectives of the NTA. The general functions of a representative body are set out in s 203B, within Div 3 of Pt 11 NTA. It has facilitation and assistance functions, certification functions, dispute resolution functions, notification functions, agreement making functions and internal review functions, as those particular expressions are further described in the NTA.

…

42    It may be seen from these briefly stated relevant functions that a body such as the K[imberley] L[and] C[ouncil], as a designated native title representative body, has the significant responsibility to inquire into and ascertain who relevant native title holders might be in order to facilitate the efficient administration of the NTA.

21    Given these important functions, it may not be surprising that, according to counsel for the parties, there have been only two occasions in the past where a native title representative body has been refused joinder as a party: Kooma (above), which is relied upon by the Wongkumara applicant, and Munn v State of Queensland [2002] FCA 78 (Munn). In Munn, Emmett J expressed some doubt whether a native title representative body had a sufficient interest for the purposes of s 84(5) to be joined as a party, eg see Munn at [16] and [17]. However, about seven months later, in Brierley on behalf of the Walbunja People v Minister for Land & Water Conservation (NSW) [2002] FCA 1209 (Brierley), his Honour accepted that there had been several intervening decisions (listed at [2] of Brierley) where, despite expressing concerns about certain ambiguities in the NTA, single judges of the Court had held that a native title representative body did have a sufficient interest for the purposes of s 84(5) of the NTA. Furthermore, his Honour decided (at [4]) that he could not be satisfied that a conclusion to that effect could be said to be “clearly erroneous”. This decision does not assist the Wongkumara applicant because it essentially relates to the first two elements identified in Far West Coast, which are not in issue in this application (see at [16] above).

22    As to Kooma, that judgment involved some quite unusual circumstances. There, the representative body sought joinder to enforce a resolution that had been passed at a meeting of the claim group to the effect that the representative body concerned should replace the existing legal representatives acting for the claim group and take control of the conduct of the proceedings: see Kooma at [9]. Significantly, joinder was not sought on the basis that it was necessary for Queensland South to properly perform its statutory functions: see Kooma at [17]. Against that background, Drummond J considered that if the representative body were joined to, in effect, align itself with a particular faction of the claim group, it would be “difficult for [it] properly to perform its functions”. His Honour continued: “Its functions under s 203BC could, in my opinion, hardly be advanced by joining it in the circumstances revealed by the evidence, where there is this factional rupture within the claimant group”: see Kooma at [21]. Finally, it is important to highlight his Honour’s concluding remarks where he reiterated his earlier remarks (see Kooma at [18] set out at [17] above) about the absence of any evidence that joinder was necessary for Queensland South to perform its statutory functions: “I emphasise that I am deciding this case on the evidence put before me”: see Kooma at [22].

23    While Queensland South did convene the June Dubbo meeting, there is no evidence that it tried to influence the views of the persons present at that meeting, or otherwise align itself with that group. On this aspect, Mr Wishart stated in one of his affidavits that Queensland South was prompted to call that meeting in furtherance of its statutory dispute resolution functions because of the “frequency and consistency of complaints and the seriousness of the concerns raised over a 12 month period”. He added that he “did not necessarily accept the accuracy of the allegations”. I accept these statements on affidavit from the Principal Legal Officer of Queensland South. They are consistent with what the senior counsel for Queensland South told me during the hearing of this application (see [19] above). I obviously accept those assurances from senior counsel too.

24    It can therefore be seen that the circumstances of this application are entirely different to the quite unusual ones that arose in Kooma. Accordingly, I do not consider the judgment in Kooma provides any basis for refusing Queensland South’s application.

25    As to the other matter relied upon by the Wongkumara applicant, I do not consider that the timing of this application, viz six years after these proceedings were commenced, weighs against joinder. In his various affidavits, Mr Wishart identified several matters that have caused Queensland South to recently form the view that it will be better able to fulfil its statutory functions if it were to be joined as a party to these proceedings. They included the dissent within the Wongkumara claim group mentioned above and the claims that have recently emerged from the Hill applicants that they are Wongkumara People and should be included in the Wongkumara claim group. As a party, Mr Wishart said that Queensland South will be better able to discharge its dispute resolution functions under s 203BF in relation to these kinds of disputes. In this regard, I do not consider the Wongkumara applicant’s offer to give Queensland South access to all the materials filed in these proceedings will provide a satisfactory alternative to it becoming a party. Apart from anything else, only a party will be able to participate in any mediations that are conducted to attempt to resolve these kinds of disputes. Furthermore, Mr Wishart also said that Queensland South would be able to assist the Wongkumara claim group as a whole in advancing its claim, particularly by providing assistance with ongoing genealogical research. I also accept Mr Wishart’s evidence on these matters.

26    For these reasons, I consider it is in the interests of justice that Queensland South be joined as a respondent party in these proceedings.

27    Before concluding these reasons on Queensland South’s application, I should make one thing quite clear. My decision to join Queensland South as a party in these proceedings is based squarely on its status as a native title representative body under the NTA and Mr Wishart’s affidavit evidence referred to above. This decision should therefore not be taken as expressing any views about the way in which the Wongkumara applicant has been conducting the Wongkumara claim, nor any views about the conduct of the Wongkumara claim group more broadly. Conversely, it should also not be taken as expressing any views about the validity of the complaints made by the dissentient group of Wongkumara People who were present at the June Dubbo meeting, nor the validity of the claims being pursued by the Hill applicants.

The Hill application

28    It is helpful to begin my consideration of the Hill application by setting out some further principles that emerge from the authorities on the operation of s 84(5) of the NTA.

29    In Far West Coast (see at [12] above), Mansfield J provided (at [28]–[31]) the following useful summary on the application of the first and second elements his Honour had earlier identified (set out at [12] above):

28    Turning first to elements (a) and (b), the authorities state that the relevant interest need not be proprietary, or even legal or equitable. But the interest must be “genuine; “… not indirect, remote, or lacking substance …”; it must be capable of clear definition; and in relation to element (b) it must “be affected in a demonstrable way” by the determination in the proceedings”: Barunga, [165]; Chippendale on behalf of the Wuthathi People #2 v Queensland [2012] FCA 310, [14]–[16] per Greenwood J.

…

30    It is clear that native title rights and interests are interests capable of satisfying the requirements of s 84(5). …

31    It is also clear that claimed native title rights and interests can satisfy the requirements of s 84(5) even if those native title rights and interests have not yet been authoritatively determined by the courts to exist. For instance, in rare circumstances, a dissentient member of a native title claim group can become a respondent party to that claim group’s native title application: see Combined Dulabed and Malenbarra/Yidinji Peoples v Queensland (2004) 139 FCR 96 at 106 [45] per Spender J; Far West Coast Native Title Claim v South Australia (2011) 191 FCR 381, [27] per Mansfield J; Bidjara People #2 v Queensland [2003] FCA 324 per Ryan J; Butterworth v Queensland (2010) 184 FCR 397, [39] per Logan J; Starkey v South Australia (2011) 193 FCR 450 at 461 [55] per Mansfield J.

30    Nonetheless, his Honour added the qualification (at [34]) that: “not just any person claiming to hold native title rights and interests thereby has an interest capable of satisfying s 84(5), no matter how tenuous his or her claim might be”.

31    As to the kind of evidence necessary to establish a sufficient native title right and interest for joinder under s 84(5), in Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 (Isaacs), I observed as follows:

8    … On this aspect, I respectfully agree with the approach taken by Kiefel J in Wakka Wakka People #2 v Queensland [2005] FCA 1578 when dealing with an application for joinder under s 84(5), as follows (at [6]):

It is true, as Ms O’Brien appearing pro bono for Mr Bellear points out, that it is not for the Court on the hearing of this application to determine whether Mr Bellear’s assertion is correct. Nevertheless, he has to show a prima facie case in relation to an interest, in the sense referred to in the Arakwal People’s case.

9    In this context, I take the expression “prima facie” to mean at first sight without further investigation: see North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 615–6.

32    Finally, it is worth noting that a party seeking joinder as an individual to protect his or her individual native title rights and interests cannot act in a representative capacity for others and cannot seek a determination of native title in his or her own right: see AD (deceased) on behalf of the Mirning People v State of Western Australia (No 2) [2013] FCA 1000 at [57] and Isaacs at [19].

Sufficient interests

33    To establish the factual basis for their interests, the Hill applicants relied on their own affidavit evidence and a report produced by the Wongkumara applicant’s anthropologist, Ms Inge Riebe, to demonstrate that they are the descendants of an apical ancestor who was a Wongkumara person. Further, they relied upon the affidavit of a consultant anthropologist, Mr Peter Blackwood, specifically his conclusion that:

The traditional laws and customs of the Wongkumara People provide for the membership of the native title holding group to be determined by cognatic descent from recognised ancestors whose Wongkumara identity is derived by filliation (sic) from a parent or grandparent who was a Wongkumara person.

34    Based on this material, Ms Kidson, counsel for the Hill applicants, submitted that the Hill applicants had individual native title interests that were clearly sufficient for the purposes of s 84(5), relying upon authorities such as Far West Coast (above).

35    Mr Tokley was content for me to approach this application on the basis that each of the Hill applicants is a descendant of a Wongkumara apical ancestor, although he did draw a distinction between this acknowledged descent from a Wongkumara apical ancestor and their present day identification and acceptance as Wongkumara People. He also foreshadowed that, depending upon the results of further anthropological research, the Wongkumara applicant may seek to challenge the status of one of the apical ancestors relied upon by some of the Hill applicants. It was also common ground in this application that none of the Hill applicants is named in Attachment A to the Wongkumara application, or is a descendant of a person named in that attachment. That is, none of the Hill applicants is presently identified in the Wongkumara application as a member of the Wongkumara claim group.

36    Based on the evidence of the Hill applicants mentioned above and the concessions made by counsel for the Wongkumara applicant, I consider the Hill applicants have established, at least on a prima facie basis, that they have individual native title interests in the claim area sufficient to satisfy the first element for joinder under s 84(5) of the NTA: see Far West Coast at [12] above.

Interests that may be affected by a determination

37    Turning to the second element identified in Far West Coast, the Hill applicants submitted that their individual native title interests were interests that “may be affected by a determination” because any final determination of native title for the Wongkumara claim area would deny their recognition as Wongkumara People and as holders of native title in common with all other Wongkumara People. In response, the Wongkumara applicant submitted that this was not so because if the Hill applicants were Wongkumara People, as they claimed, a final determination of native title in favour of the Wongkumara People would be to their benefit.

38    It is implicit in the Wongkumara applicant’s submission that the word “affected” in s 84(5) of the NTA does not include a situation where a determination has a beneficial effect. However, it is unnecessary to decide that question in determining this application because the submission must be rejected for another reason, as follows. In its present form, the Wongkumara application does not assert that the native title rights and interests in the claim area are held by the Wongkumara People as a whole (cf State of Western Australia v Graham on behalf of the Ngadju People (2013) 309 ALR 452; [2013] FCAFC 143 (Graham)). Instead, it asserts that those rights and interests are held by a group of 200 named individuals and their descendants. Moreover, it does not describe that group as being linked by descent from an identified group of apical ancestors nor specify the criteria for membership of the Wongkumara claim group. This deficiency in the description of the Wongkumara claim group appears to be acknowledged by the Wongkumara applicant, at least inferentially, because its counsel, Mr Tokley, has foreshadowed an application to amend the Wongkumara application to address it (see at [6] above). It follows that, if a final determination of native title is made in the form currently sought by the Wongkumara applicant and if the Hill applicants are Wongkumara People, as they claim, they will not benefit from such a determination. Since the benefit the Wongkumara applicant relies upon will not eventuate, at least while the Wongkumara application is in its present form, it must also follow that the identified interests of the Hill applicants may be affected if a final determination of native title is made in that form. Indeed, in oral submissions, Mr Tokley quite properly conceded as much. For these reasons, I consider that the Hill applicants’ asserted native title interests are interests that may be affected by a determination for the purposes of s 84(5) of the NTA. The only question that therefore remains is that raised by the third element identified in Far West Coast: whether I should exercise my discretion to join the Hill applicants as parties to these proceedings.

Discretionary factors

39    Ms Kidson submitted that joinder was in the interests of justice, as it would protect the Hill applicants from serious consequences, viz the possible loss of their asserted native title rights and interests. At the same time, she submitted their joinder would not prejudice the Wongkumara applicant as the substantive proceedings were not presently progressing towards a consent determination. Ms Kidson emphasised that each of the Hill applicants sought only to be joined in their individual capacity and their interests could not be protected by any mechanism other than joinder. She submitted that while some time had elapsed between the commencement of these proceedings and the date that her clients’ application was filed, in their affidavits they had provided sufficient explanations for that delay. She submitted that, if the Hill applicants were joined as parties to these proceedings, it would allow them to negotiate directly with the other parties, particularly the Wongkumara applicant. She also suggested that the question of the Hill applicants’ status as Wongkumara People could, with the Wongkumara applicant’s consent, be referred to the National Native Title Tribunal for determination. Alternatively, she suggested that the question could be determined as a separate question in these proceedings before any consent determination is made.

40    On this latter aspect, Ms Kidson submitted that the status of the Hill applicants as Wongkumara People was a matter that is capable of determination by this Court. She submitted this particular dispute was not an intramural dispute, such as that discussed by Mansfield J in Starkey v State of South Australia (2011) 193 FCR 450; [2011] FCA 456 (Starkey). That was so, she submitted, because the Hill applicants were not presently accepted as being members of the claim group, whereas in Starkey, Mr Starkey definitely was. Ms Kidson also relied upon the recent Full Court decision of Graham as authority for the proposition that the Court is required to determine who the persons are who hold native title, if that matter is put in issue in native title determination proceedings. Further, she submitted that, in the present circumstances, “a grant of leave [to be joined] is readily made”, relying upon Starkey at [68] and Butterworth v Queensland (2010) 184 FCR 397; [2010] FCA 325 at [29].

41    Mr Tokley submitted that the Hill applicants should not be joined as parties to these proceedings because the dispute between them and the Wongkumara claim group is not one that the Court can resolve in these proceedings. He submitted there was therefore no utility in joining them as parties. In making this submission, Mr Tokley particularly relied upon what Dowsett J said in Aplin on behalf of the Waanyi Peoples v Queensland [2010] FCA 625 (Aplin) at [256] and [267] as follows:

256    Inevitably, these requirements lead to the conclusion that for the purposes of the Native Title Act, it is the claim group which must determine its own composition. Any final decision in that regard must be taken pursuant to either of the alternative processes identified in s 251B. The claim group must assert that, pursuant to relevant traditional laws and customs, it holds Native Title over the relevant area. It is not necessary that all of the members of the claim group be identified in the application. It is, however, necessary that such identification be possible at any future point in time. A claim group cannot arrogate to itself the right arbitrarily to determine who is, and who is not a member. As to substantive matters concerning membership, the claim group must act in accordance with traditional laws and customs. As to matters of process the claim group must act in accordance with traditional laws and customs or, in the absence of relevant laws and customs, pursuant to such process as it may adopt.

…

267    … As a matter of fact I have held that Minnie identified as a Waanyi person (believing that she was descended from at least one Waanyi parent) and was accepted by Waanyi people at Burketown and at Lawn Hill as being Waanyi. However the case really addresses the entitlement of Minnie’s descendants to Waanyi identity. That question depends upon group acceptance of each of them as being of Waanyi descent which question, in turn, depends primarily upon whether the present Waanyi people accept that Minnie was a Waanyi person. As the applicant asserts, the claim group must determine that question. To date they have refused so to recognize her. I cannot take that decision for them. Nor can I find that during her lifetime, the Waanyi people, as a whole, accepted her as being Waanyi. My findings as to such acceptance are limited to the position as it was at Lawn Hill and at Burketown. It is for the claim group to determine whether that is a sufficient basis for accepting that she was a Waanyi woman, descent from whom is a basis for Waanyi identity. However I should make a few comments about how the matter might be addressed.

42    The import of these observations, so Mr Tokley submitted, was that the Court could determine factual issues relating to ancestry, descent and associated historical matters, but it could not determine whether the descendants of a particular Aboriginal person were accepted by a present day society of Aboriginal people to be members of that society. He submitted that, in this case, the Wongkumara applicant does not dispute the former factual issues, viz that the Hill applicants are each descended from a Wongkumara apical ancestor, however the Wongkumara applicant does dispute the latter issue, viz whether the Hill applicants are accepted as Wongkumara persons by the present day Wongkumara People. He submitted the Wongkumara claim group is the only body that is able to determine this latter question. Indeed, he submitted, the Wongkumara claim group had already made that decision by the unanimous representative vote taken in late 2013 to the effect that the Hill applicants were not Wongkumara People (see at [9] above).

43    Mr Tokley submitted that Graham was not authority for the proposition that the Court is required to determine disputes regarding the composition of a native title claim group, once that matter is put in issue in native title determination proceedings. He submitted that in Graham, the error identified by the Full Court was not a failure by the trial judge to determine whether certain descendants of an apical ancestor should have been accepted as members by the claim group, but rather a failure to determine the factual question: whether a particular apical ancestor should have been excluded from the claim group? He submitted that, in Graham, the Full Court concluded that the anthropological evidence clearly stated that the particular apical ancestor concerned was not of Ngadju descent and/or had not been adopted into the Ngadju community. Accordingly, he submitted, the Full Court had concluded that, since these were the undisputed criteria for inclusion as a member of the Ngadju People based on Ngadju traditional laws and customs, the descendants of the particular apical ancestor concerned should not have been included as Ngadju persons.

44    Mr Tokley submitted there were other reasons why the Court should not exercise its discretion to join the Hill applicants as parties to these proceedings. One was that, despite the age of the proceedings, no satisfactory explanation had been given by the Hill applicants for their delay in bringing their applications for joinder. Another was that joining the Hill applicants was likely to delay the resolution of the proceedings, because they were unlikely to agree to any consent determination.

45    In reply, Ms Kidson submitted that it was implicit in the Full Court’s decision in Graham that the trial judge had made findings as to the content of the traditional laws and customs governing the rights and interests of the Ngadju People in their land. She submitted that, given the decision in Graham, the remarks of Dowsett J in Aplin cannot be viewed as a correct statement of the law. Alternatively, she submitted, his Honour’s remarks in Aplin had to be confined to the specific factual context of that case. In that respect, she relied upon a subsequent decision of Dowsett J in Brooks (on behalf of the Mamu People) v Queensland (No 3) [2013] FCA 741 (Mamu), which also predates Graham, where his Honour stated (at [123]):

In [Aplin], the description of the claim group differed from the description in the present case. In particular, the amended description required descent from apical ancestors, together with self-identification and group recognition. Adoption was also recognized as conferring group membership. In the present case membership of the claim group depends solely on descent from identified ancestors. Nonetheless, there can be no doubt that it is for the claim group to determine its own membership.

46    Further, Ms Kidson relied upon the decision of Jagot J in Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 (Bidjara). In Bidjara, her Honour was required to determine, among many other issues, whether members of two competing groups were all members of the Karingbal People. Members of one of the groups were all descended from one ancestor, Jemima of Albinia. Jagot J identified the content of traditional laws and customs relating to membership at sovereignty (see [531]) and held that Jemima was not a Karingbal person, and therefore her descendants were not Karingbal persons (at [533]). Her Honour also considered whether there had been continuity in the traditional laws and customs relating to membership of the groups in the context of considering (at [534]) “whether there has been continued acknowledgement and observance of pre-sovereignty laws and customs of that continued society”. Ms Kidson therefore submitted that Bidjara was authority for the proposition that the Court is able to determine the content of traditional laws and customs relating to the membership and composition of a native title claim group when that arises as an issue in native title determination proceedings.

47    I have recorded the submissions of the parties on this question in some detail, in order to attempt to highlight the point of departure between the Wongkumara applicant and the Hill applicants on the Court’s power to determine the composition of the Wongkumara native title claim group. Both parties agree that the Court can determine factual questions related to the Hill applicants’ ancestry, descent and associated historical matters. This is what Dowsett J did in Aplin. However, the Wongkumara applicant relies upon what Dowsett J said at [267] of Aplin to argue that the Court cannot determine the question whether a Wongkumara descendant is accepted by the present day Wongkumara People to be a Wongkumara person. It argues that that question can only be determined by the Wongkumara People themselves, according to their traditional laws and customs. On the other hand, the Hill applicants claim the Court necessarily has to decide this question and many others in order to determine the range of issues that have to be considered under the NTA when making a determination of native title. These include the content of the claim group’s traditional laws and customs to determine who holds the native title rights and interests over the area of land and waters under claim. The Hill applicants argue that this necessarily requires a consideration of those matters when an issue arises about the composition of the group that holds the native title rights and interests.

48    This is a vexed question, but I do not consider I have to decide it to determine this application. That is so because the amended Wongkumara application does not presently identify what the criteria for membership of the Wongkumara native title claim group are. It does not, for example, identify whether membership is based solely on descent from identified apical ancestors, as was the case in Mamu, or whether it is based on descent from apical ancestors together with self-identification and group recognition, as in Aplin, or some combination of these criteria, or, indeed, a different set of criteria entirely. Until such time as the criteria for membership of the Wongkumara native title claim group are properly spelled out in the Wongkumara application, it is not possible to determine whether any disputes about the membership of that group fall into the factual category identified above, or into, what I will refer to as, the intra-jural category about which there exists the vexed question I have mentioned above. In fact, it is possible that there may be no dispute at all if the sole criterion for membership of the Wongkumara claim group turns out to be Wongkumara descent, as the Hill applicants claim it is. Accordingly, while the criteria for membership of the Wongkumara claim group remains an open question, I do not consider there is any justification, at this stage, and on that ground, to refuse to exercise my discretion to order that the Hill applicants be joined as parties to these proceedings.

49    As to the question of delay, the affidavit material filed by the Hill applicants demonstrates that two of the five applicants, viz Ms Maureen Mavis Hill and Ms Kathleen Edith Rodgers (see [1] above) only discovered at the June and/or July 2013 Dubbo meetings that they were not members of the Wongkumara claim group. In relation to the remaining three, the affidavit material is unclear as to when Ms Lynette Joyce Mieni discovered she was not a member of the Wongkumara claim group, however she deposes to leaving telephone messages for Mr Neumann, applying for membership of associated Aboriginal Corporations and attending the June and July 2013 Dubbo meetings. Ms Christine Margaret Murphy states that while she found out that she was not part of the Wongkumara claim group about four years ago, she subsequently made inquiries and was informed she would be included if she provided a signed authority. She did so recently, but was not subsequently included in the Wongkumara claim group. Mr James Charles Taylor discovered that his identity as a Wongkumara person was in question when he made enquiries about being included in the Wongkumara claim group in “recent years”.

50    While this brief review of the evidence demonstrates that some of the Hill applicants have not explained their delay in bringing this application in any great detail, or with much clarity, given the potential significance of refusing joinder, I do not consider their application should be dismissed because of their delay in filing it. In any event, I do not consider any delay that may have occurred in filing the application has prejudiced the Wongkumara applicant. Despite Mr Tokley’s submissions regarding the effect joinder will have on any consent determination, these proceedings have not been listed for a consent determination, nor have any of the respondents confirmed they will agree to a consent determination. Furthermore, it seems quite unlikely that these proceedings can proceed to that stage until such time as the Wongkumara applicant has resolved the question about the description of the Wongkumara claim group discussed above. For these reasons, I consider it is in the interests of justice that the Hill applicants be joined as parties to these proceedings.

Conclusion

51    I will therefore order that Queensland South and the Hill applicants all be joined as respondent parties to these proceedings.

Associate:

Dated:    26 March 2014