FEDERAL COURT OF AUSTRALIA

Pegler on behalf of the Widi People of the Nebo Estate #1 v State of Queensland [2014] FCA 932

THE COURT ORDERS THAT:

1.    The interlocutory application filed by Ms Juanita Johnson on 15 November 2013 be dismissed.

2.    The interlocutory application filed by Ms Vassa Hunter on 22 November 2013 be dismissed.

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

REASONS FOR JUDGMENT

1    Before the Court are two interlocutory applications pursuant to s 84(5) of the Native Title Act 1993 (Cth) (“Native Title Act”) seeking orders for joinder as respondents in these native title proceedings. Section 84(5) 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.

2    The applicants for joinder are Ms Juanita Johnson (in respect of her interlocutory application filed 15 November 2013) and Ms Vassa Hunter (in respect of her interlocutory application filed 22 November 2013). Both interlocutory applications are supported by affidavits sworn by Ms Johnson and Ms Hunter (“the joinder applicants”).

3    In summary, Ms Johnson and Ms Hunter have applied for joinder on the basis that they are descendants of Mary Johnson, also known as Mary of Clermont. These interlocutory applications for joinder are opposed by the native title applicant in the substantive proceedings.

4    In Butterworth on behalf of the Wiri Core Country Claim v State of Queensland (No 2) [2014] FCA 590 I found, inter alia, that decisions of the native title claim group at an authorisation meeting held on 16 July 2013, including a decision to amend the claim group description by removing the name of Mary Johnson, were valid. It is not in dispute that the removal of Mary Johnson as an apical ancestor followed anthropological research presented to the claim group by anthropologist Mr Daniel Leo, finding that Mary Johnson was not an apical ancestor for the purposes of this claim.

5    On 23 June 2014 I made the following orders in this matter:

1.    Pursuant to section 66B of the Native Title Act 1993 (Cth), the following group of persons:

(a)    Eileen Beryl Pegler;

(b)    Paul Royce Butterworth;

(c)    Loraine Joyce McLennan;

(d)    Ronald Jock Watson;

(e)    Marilyn Joyce Duncan;

(f)    Kenneth Stewuart Peters Dodd;

(g)    Graham Ian Sauney;

(h)    Oswald Alfred Skeen;

(i)    Athol Noel Goltz; and

(j)    Linda Joyce Wailu.

(the replacement Applicant)

do jointly replace the current Applicant.

2.    The name of the Applicant be amended to remove reference to, “James Henry Butterworth and Others on behalf of the Wiri Core Country Claim” so as to read, “Eileen Beryl Pegler and Others on behalf of the Widi People of the Nebo Estate #1.”

3.    The replacement Applicant be granted leave to further amend the Native Title Determination Application, in accordance with the proposed Further Amended Application marked “DGS7” annexed to the affidavit of David Glen Saylor sworn on 24 September 2013.

4.    The Applicant file and serve a re-engrossed copy of the Further Amended Application on the State of Queensland and each respondent part who appeared at the 1 October 2013 directions hearing within 10 working days of the date of this Order.

5.    There be no orders as to costs of this interlocutory application.

6.    The interlocutory applications for joinder of Juanita Johnson and Vassa Hunter, be set down for hearing at 2.15pm on 16 July 2014 for half a day.

6    An important consequence of order 3 above is that Mary Johnson was removed as a named apical ancestor in the native title determination application. It follows that Ms Johnson and Ms Hunter are no longer members of the native title claim group in this proceeding, and can only remain as parties if they are joined pursuant to s 84(5).

THE CLAIM OF THE JOINDER APPLICANTS

7    Ms Johnson and Ms Hunter have each filed affidavits in support of their respective interlocutory applications.

8    Ms Johnson filed a detailed affidavit on 15 November 2013 in which she asserts that her family holds native title rights and interests through Mary of Clermont in Wierdi/Widi lands. These lands are described in her affidavit as an area including Clermont, Emerald, Belyando, Capella, Parish of Dysart, Jericho, Twin Hill and Ravenswood. Ms Johnson gives evidence of her ancestors and her family, including her relationship with Mary of Clermont. She also deposes as to the relationship of her family with and participation in indigenous culture in those lands.

9    Ms Hunter filed a detailed affidavit on 22 November 2013 in which she also gave evidence of her ancestors, family and culture, including her relationship with Mary of Clermont. Ms Hunter further challenges the views of Mr Daniel Leo in relation to Mary of Clermont.

10    The joinder applicants were represented pro bono by Mr Creamer of Counsel. In summary, Mr Creamer submitted:

    The joinder applicants assert they have a personal interest, not a representative interest, which may be affected by a determination in the proceedings.

    Notwithstanding the most recent anthropological report, anthropological research material compiled over a 10 year period supported the joinder applicants’ claim to be included in the native title claim group.

    The most recent anthropological report has been prepared by Mr Daniel Leo, who simply has a Bachelor of Arts with Honours, and who is not eminent in the area.

    The joinder applicants brought their applications at the earliest occasion.

    The joinder applicants are not people who have never been part of the claim group – they are individuals who were part of the claim group for an extended period of time until only recently.

    The joinder applicants would suffer real prejudice if they were not joined because they would then be shut out from the determination.

    The joinder applicants only have to show a prima facie case as to the existence of an interest: Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 and Edwards on behalf of the Wongkumara People v State of Queensland [2014] FCA 282. They do. The native title applicant seeks to agitate issues which are of a substantive nature, which is not appropriate in respect of this interlocutory application.

    The options proposed by the respondents in respect of making dissident members of a claim group making an application under s 66B of the Native Title Act are not available because the joinder applicants are not members of the claim group at the moment.

RELEVANT AUTHORITIES

11    The respondents have referred me to the discussion of “interests” for the purposes of s 84(5) by Greenwood J in Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310 at 14 where his Honour said:

[Section 84(5)] provides that 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. The notion of “interests” for the purposes of s 84(5) is a broad conception, not confined to the statutory understanding of the term “interest” in s 253 as that term applies in relation to land or waters. The interests asserted by an applicant for joinder need not be proprietary, legal or equitable in nature; must rise above an interest that an ordinary member of the public might hold; must be genuine; must reflect an effect upon the person’s interests beyond a mere emotional, conscientious or intellectual interest; and, must not lack substance: Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1; Woodridge on behalf of the Gomilaroi People v Minister for Land & Water Conservation (NSW) (2003) 108 FCR 527; Dann (on behalf of the Amangu People) v Western Australia [2006] FCA 1249.

(cf Sumner v State of South Australia [2014] FCA 534; AD (deceased) on behalf of the Mirning People v State of Western Australia (No 2) [2013] FCA 1000; Far West Coast Native Title Claim v South Australia (No 5) [2013] FCA 717; Chienmore v State of Western Australia [2013] FCA 727).

12    Further, in Wakka Wakka People #2 v State of Queensland [2005] FCA 1578 Kiefel J observed that an applicant for joinder must demonstrate a prima facie case that he or she has an interest within the meaning of s 84(5).

13    These statements set out key aspects of the law in respect of s 84(5) of the Native Title Act.

14    As a general proposition the Court will rarely permit joinder of dissentient members of a native title claim group to the claim. This is because, inter alia:

    decisions of the claim group such as authorisation pursuant to s 251B require a decision either in accordance with traditional laws and customs, or in accordance with a decision-making process agreed to by the claim group, and unanimity of the claim group is not a pre-condition;

    such an outcome results in more respondents with whom negotiations must be conducted; and

    finally as a general proposition, dissentient members would be able to assert their own status or role intramurally: Starkey v South Australia (2011) 193 FCR 450 at [55].

15    In this case, of course, Ms Johnson and Ms Hunter cannot be described as “dissentient members of the claim group” although they have previously been members of that group.

16    The native title applicant submits that a former member of the claim group, seeking to challenge the anthropological evidence otherwise relied on by the claimant group, should not, on that basis alone, be joined. It is useful to turn to the authorities which have considered issues similar to those currently before the Court.

17    In Combined Dulabed and Malanbarra/Yidinji People v Queensland [2002] FCA 1370 there was no dispute that party seeking the interlocutory orders, Mr Morgan, was a member of the relevant native title claim group. The orders he sought included that he be joined in those proceedings as a party on behalf of a separate traditional owner group. The primary reasons for dismissal of the interlocutory application related to the breadth of the orders sought by Mr Morgan, including that all activity by the native title applicant cease, and that certain persons identified as members of the claim group be declared as not being so. At [7] Drummond J observed:

The concern that has provoked Mr Morgan to bring this application is his non-acceptance of the anthropological evidence that supports the contention raised long ago in the original claim, and reflected in the combined claim, that the people referred to in par 4 of his notice of motion are entitled to be members of the claim group: Mr Morgan does not accept that they have any sufficient connection to the relevant portion of the claim area. There is no evidence before me to support Mr Morgan’s assertion that this particular subgroup of people have in truth no connection with the relevant part of the claim area. As I have said, the anthropological material is to the contrary effect.

18    In Combined Dulabed and Malanbarra/Yidinji People v Queensland (2004) 139 FCR 96 Spender J considered a further application by Mr Morgan seeking thirty-one orders in respect of the native title claim in that proceeding. At [44]-[45] his Honour discussed circumstances where a member of the native title claim group becomes dissatisfied with the way the interests of that person or that group of persons are being represented by the applicant on the claim, and continued:

[45]    I prefer the view of Ryan J that there is, in such a circumstance, power under s 84(5) of the Act to make the dissentient group a party to the proceedings as a respondent. Whether the discretion that is conferred by s 84(5) of the Act is to be exercised in the circumstances of a particular case must depend on the circumstances of that case, including the history of it.

19    Later his Honour said:

[49]    In my opinion the discretion to join parties given by s 84(5) of the Act should not be exercised to join either Mr Michael Morgan or Mr Denny Morgan. The position is now no better than it was when Drummond J declined to join Mr Morgan as part of the joint applicant in November 2002. A considerable time ago the matter looked to be approaching a consent determination. Mr Morgan has effectively halted that process, because he disagrees with the anthropological evidence.

20    In AD (deceased) on behalf of the Mirning People v State of Western Australia (No 2) the joinder applicant, Mr Laing, gave evidence that he was the grandson of Mr Gordon Nacey, who in turn was the son of a full-blooded Mirning woman, and relied on various historical and anthropological reports to substantiate his claim that “the Naley family share Mirning cultural rights and interests”. Mr Laing gave detailed evidence supporting the proposition that his family was, and was recognised by Mirning elders as, Mirning. Materially, however, Mr Laing’s ancestor Mr Gordon Naley was not recognised as an apical ancestor in the Mirning Claim, and it followed that the claim group description did not include Mr Laing. Mr Laing claimed that he had interests which could be affected by the determination and that he was entitled to be joined.

21    McKerracher J examined the evidence and a similar earlier analysis conducted by Dowsett J in Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625. In particular McKerracher J observed as follows:

66.    More importantly, perhaps, it should be stressed that being recognised as Mirning, as Mr Laing indicates he is, is a different thing from being a member of the native title claim group. The native title claim group must comprise the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprised in the claim. In Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 Dowsett J held (at [256]) that read together, ss 253, 61(1) and 251B NTA provide that it is the claim group which must determine its own composition and that any final decision in that regard must be taken pursuant to either of the alternative processes identified in s 251B NTA.

67.    However this is not to suggest that by some arbitrary or capricious whim, membership is validly excluded on grounds completely unrelated to traditional laws and customs. The process of consideration of acceptance and the basis of such consideration are not irrelevant considerations.

68.    In Aplin, Dowsett J spoke of the importance of recognition when assessing who is in and who is out of the claim group and who does the recognising. His Honour noted (at [256]) that:

[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.

69.    After citing Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 (at 61), Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 110 FCR 244 (at [108]) and Sampi on behalf of the Bardi and Jawi People v State of Western Australia (2010) 266 ALR 537 (at [45]), his Honour noted (at [260]):

[T]hese cases clearly demonstrate that membership must be based on group acceptance. That requirement is inherent in the nature of a society. However the society may accept the views of particular persons as sufficient to establish group acceptance.

70.    His Honour concluded on the question of whether a proposed apical ancestor (Minnie) and her descendants were part of the claim group (at 267]-[268]):

[267]    This question is more difficult to answer. 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.

[268]    In my view the present problem has arisen in a way which makes it difficult to resolve rationally. At a time when a Native Title determination is imminent, the members of the Minnie family have emerged as possible members of the claim group. There are many of them. For reasons of history, mixed descent and geographical dispersal, many Waanyi people do not recognize the family as Waanyi. There are conflicting views on the subject. It is no doubt difficult for the claim group to marshal the various views in order to assess their persuasiveness.

(emphasis added.)

71.    Importantly, in my view, Dowsett J added (at [270]) the following:

Although resolution of this matter is primarily for the claim group, any decision may not necessarily be beyond review, given its significance under the Native Title Act. There is, as far as I am aware, no precedent upon which to base a decision as to the availability of judicial relief in the event that persons who, according to traditional laws and customs, are entitled to Native Title rights and interests, are wrongfully excluded from membership of the claim group. Relief may be available, perhaps by analogy to that available for fraud on the power. See Ngurli Ltd v McCann (1953) 90 CLR 425 at 438, Cachia v Westpac Financial Services Ltd (2000) 170 ALR 65 at [74] and Gambotto v WCP Pty Ltd (1995) 182 CLR 432. In the latter case, McHugh J identified the fact that the doctrine had been used as the basis for granting relief against oppression of the minority of company shareholders. See also Alexander v Automatice Telephone Company [1900] 2 Ch 56 at 69 and Menier v Hooper’s Telegraph Work (1873-74) LR 9 Ch App 350 at 353-4. Statutory relief has long been available for oppression of minority shareholders, thus removing the need for further development of equitable doctrine in that area.

(emphasis added.)

72.    More recently in Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1455, Marshall J reiterated (at [13]) that:

The identity of the claimant group is a matter for it, and is based on the relationships within that group and the manner in which members recognise and associate with one another.

73.    It is true to say, as Mr Laing does, that the ‘native title claim group’ is not the group of people who are listed in the Form 1 as being members of the claim group but rather they are the persons who ‘according to their traditional laws and customs, hold the common or group rights and interests comprising a particular native title claimed’. This is the test for the purpose of s 61(1) NTA: see, for example, Rita Augustine v State of Western Australia [2013] FCA 338 per Gilmour J (at [214]-[215]):

214.    However, as the State submits, correctly in my view, in such cases it will often be tempting for members of the group to seek separate and conflicting determinations. However, the existence of a native title claim group does not depend upon the contemporary degree of cordiality, or lack thereof, demonstrated by members of a claim group. Rather, a native title claim group is defined by the traditional laws and customs which confer rights and interests in a group. Any definition of a native title claim group should properly be based on an analysis of those traditional laws and customs and not on the contemporary state of relations between members of the group.

215.    A claim group is not an entity which is created by a determination application: Turrbal People v State of Queensland [2008] FCA 316 at [15]; Akiba (on behalf of the Torres Strait Islanders of the Regional Seas Claim Group) v Queensland (No 2) (2010) 270 ALR 564 at [913]. By s 61 of the NTA, the native title claim group is the group of “persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed”. The native title claim group has an existence independent of any determination application, which existence depends upon the traditional laws and customs which give the claim group common or group rights and interests. Subject to s 84D of the NTA, a determination application can only be successful if the group identified in the application is in fact the group which holds native title: Hazelbane v Northern Territory of Australia [2008] FCA 291 at [36]; Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1 at [1206]-[1225]; Edward Landers v State of South Australia [2003] FCA 264.

22    Later in the judgment and in considering whether to exercise discretion in Mr Laing’s favour his Honour continued:

92.    In short, it is not sufficiently to the point that a person such as Mr Laing may describe himself as a Mirning man or be recognised as Mirning by persons outside each respective native title claim group or whether they know the country or practice traditional Mirning activities outside each respective claim area. That recognition and those activities do not amount to constituting status in any portion of traditional Mirning country other than the native title claim into whose native title claim group description they fit. The way in which the Mirning Claim and the Far West Coast Claim respectively have been constituted make it clear that no members of one have any native title rights or interests in the other unless specifically named in each of them.

…

…

95.    The actual nature of his interests is also not without difficulty. Mr Laing asserts that he has descended from a full-blooded Mirning woman from Mundrabilla in Western Australia and her son, Mr Naley, also born at Mundrabilla. This is the basis of his asserted unique rights and interests – descent from persons born at Mundrabilla. Mr Laing says that he therefore has an ‘ongoing physical, spiritual and cultural connection with the Native Title Claim Area’, meaning the Mirning claim area. However, the expert support for that is in respect of a much broader Mirning area. The Mirning lands described by Mr Laing’s expert evidence go well beyond the claim area. As previously observed, it was significant that Mr Laing’s only apparent visit to the Mirning claim area was in 2006, with other visits being to the Far West Coast claim area.

…

…

99.    Although Mr Laing points to ill-treatment by the Mirning Applicant in the sense that he is allowed to attend claim group meetings but he is not given any speaking or voting rights, such circumstances would accord with Indigenous recognition that he has elements of Mirning identity but not connection per se to the Mirning claim area.

23    His Honour accordingly did not accept that it was in the interests of justice that Mr Laing be joined as a respondent, and dismissed the claim.

CONSIDERATION

24    Section 84(5) of the Native Title Act has been the subject of extensive consideration in this Court. In Barunga v State of Western Australia (No 2) [2011] FCA 755 at [164] and Far West Coast Native Title Claim v State of South Australia (No 5) at [26]-[27] this Court found that questions the Court ought properly ask in determining an application under s 84(5) were:

(a)    whether the person has an interest;

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

(c)    whether it is in the interests of justice for the Court to join a person as a party.

25    I consider these are appropriate questions for considerations in this case. I also consider that questions (a) and (b) are linked, and can be considered together.

Do the joinder applicants have an interest which may be affected within the meaning of section 84(5)?

26    In my view Ms Johnson and Ms Hunter 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. I have formed this view for three reasons.

Evidence of the joinder applicants

27    First, 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 in this proceeding. Materially, in her affidavit Ms Johnson gives evidence that:

    Her father, Bowman Theodore Johnson, was born in Barambah Mission and her mother Edith Venice Johnson was born in Purga Mission.

    Her paternal grandfather Abraham Nitty Johnson was born on Logan Downs Station in Widi lands on 10 May 1882. Ms Johnson deposes that Logan Downs Station was approximately 60 kilometres north-east of Clermont and 100 kilometres south-west of Nebo.

    Her paternal great-grandmother, Mary, was a full blooded woman of the Widi people. Her son Billy was born at Logan Downs Station. He looked after her in the Nebo region until she died at the Clermont Hospital in 1900. After she died Billy remained in the Widi lands, “including Nebo”.

    Her paternal grandmother was Lizzy Johnson aka Thomas (nee Barber), a Kangalou woman born around 1880 on the banks of Teresa Creek, Capella

    She deposed that her grandfather Abraham Nitty Johnson described his Widi country as occupying an area which includes Clermont, Emerald, Belyando, Capella, Parish of Dysart, Jericho, Twin Hill and Ravenswood.

    Her father told her that the family was from the Nebo area and the Wierdi/Widi clan, and further that they were “from the Wierdi/Widi Clan from the Nebo to Clermont region”.

28    Ms Hunter’s evidence is not as detailed as that of Ms Johnson, but is consistent with Ms Johnson’s evidence.

29    Significantly however, 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. Both joinder applicants refer to places located in the Clermont region which are outside the claim area (other than Barambah Mission which is in the area now known as Cherbourg, Purga Mission which is in the Ipswich area, and Ravenswood which is inland from Bowen and south of Townsville). Although both Ms Johnson and Ms Hunter refer to Nebo their references are very brief. At its highest, the evidence of Ms Johnson and Ms Hunter refers to lands in the Nebo region. Such references are vague and unspecified. In any event I note that Nebo is on the southern edge of the lands identified in the Widi #1 native title claim, and the evidence of both Ms Johnson and Ms Hunter could as easily refer to land outside the Widi #1 native title claim area as within it. They certainly do not give evidence of any connection with any other places within the claim area.

30    Further, 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 evidence of the joinder applicants can – and in my view, should – be read as being referable to a broader Wierdi/Widi cultural and/or language group existing over a large area of central Queensland. Such a broad affinity does not, however, give the joinder applicants an interest specifically in the Widi #1 claim within the meaning of s 84(5), any more than the joinder applicants in comparable circumstances had in AD (deceased) on behalf of the Mirning People v State of Western Australia (No 2) (as noted by McKerracher J at [95]).

Anthropological evidence

31    Second, the position of the joinder applicants as emerges from their own evidence – that is, that their family connections are to the Clermont district rather than the lands within the borders of the Widi #1 native title claim – is completely consistent with conclusions of the anthropologist Mr Leo. I note in particular comments of Mr Leo in the document “Connection Research into apical Ancestor Mary Johnson (Johnson Family) (September 2013)”, being Annexure DL-6 to Mr Leo’s affidavit sworn 24 September 2013, where Mr Leo says as follows:

2.    … the Johnson Family clearly has a traditional, localised, land-owning connection to the Clermont district, whereas no such connection to the Nebo and Mackay districts is in evidence. Based on the evidence at hand, any connection the Family may have to the Nebo and Mackay districts has arisen over the last two decades. It is arguable that such a tenuous connection cannot even be described as ‘historical’, for that requires a span of time comprising many more decades. In the absence of any other substantiation, I am left with the conclusion that the Family’s connection to the nebo and Mackay districts is a political act.

32    Later in that document Mr Leo concludes:

26.    The affiliation of the Johnson Family with the Nebo and Mackay districts by those members of the family that interviewed sits most oddly with the archival information set out above. I suspect this affiliation mostly arises from how Wiri, a language, is associated with a very wide area, including at least the Clermont, Nebo and Mackay districts. It is my view that they are leveraging off this language association to proclaim native title rights and interests in what a considerable weight of evidence shows is four separate estates.

27.    What is more, I cannot help but suspect that there is a deliberate stretching of the facts by some to suit assertions that they are part of the Widi localised, land-owning grouping for the Nebo Estate when archival information so clearly and consistently affiliates the Family with the Clermont, and only the Clermont, district …

33    While the joinder applicants in their submissions are critical of Mr Leo’s conclusions, it appears that in an experts’ conference held on 23 and 24 April 2014 involving Mr Leo and another anthropologist Dr Ray Woods, both Mr Leo and Dr Woods agreed that:

    Mary of Clermont/Mary Johnson was traditionally affiliated with the Clermont district;

    there was no evidence that Mary of Clermont/Mary Johnson was traditionally affiliated with the Nebo district; and

    Mary of Clermont/Mary Johnson was part of the wider Wiri language identity but not part of the particular land-owning group known as Widi of the Nebo estate.

34    The report of the experts conference is annexed to the affidavit of Mr David Saylor affirmed 14 July 2014.

35    Also annexed to Mr Saylor’s affidavit is an affidavit of anthropologist Dr Alison Pembroke affirmed 10 July 2014 in which Dr Pembroke attaches a report concerning the composition of another native title claim – the Yuwibara native title claim – and comments on the research of Mr Leo and his conclusions concerning Mary of Clermont. It appears that Dr Pembroke’s comments are relevant because Mary of Clermont/Mary Johnson was also nominated by the joinder applicants as an apical ancestor in the Yuwibara native title claim. Dr Pembroke observes:

15.    Based on that brief research, and my previous experience working with the Wiri group since 2001, I prepared a preliminary claim group description which included Mary Johnson. It was my opinion at that time that Mary Johnson was a Widi person with traditional connections to the inland areas of central Queensland such as Nebo, and possibly Clermont on the basis of some written records, in particular Tindale’s records which referred to “Mary fb. Widi of Clermont”. On the 21st and 22nd of May 2005, I attended the authorisation meeting for the Wiri People claim at which my draft claim group description was presented …

16.    Those present at the meeting on the 21st and 22nd of May 2004 authorised the Wiri People native title claimant application. This decision was reached by consensus of all those present at the meeting, in accordance with an agreed decision making process. Specifically, a resolution was unanimously passed regarding the proposed claim group description that included Mary Johnson as an apical ancestor …

36    Subsequently however Dr Pembroke states:

18.    Subsequent to that initial draft Yuwibara claim group description I had the opportunity to discuss and review connection research carried out by consultant Anthropologist Daniel Leo who undertook connection research for the Wiri Core Country claim. Mr Leo’s research was very thorough and he concluded that Mary Johnson was indeed a Wiri Language Person, but with traditional connections to the Clermont Estate rather than Nebo Estate.

19.    I have now had regard to Mr Leo’s Johnson report and the information and relevant data exchanged during the Experts Conference. I have also reviewed and had regard to the affidavits of Juanita Johnson and Vassa Hunter. Mr Leo’s research indicated that part of his terms of reference was to focus on the composition of the Widi claim group. The research and date gathered by Mr Leo are in my opinion soundly based and I confirm that I have considered Mr Leo’s research data and findings and as a result of my own research and experience I concur with Mr Leo that the Apical Ancestor known as Mary Johnson is also not a Widi Apical Ancestor.

20.    Leo’s more detailed and comprehensive Widi research has now affirmed my opinion that Mary Johnson was not traditionally connected to the Mackay coastal area or the Nebo Estate …

37    To that extent, it is clear that Mr Leo’s research is not lacking credibility as the joinder applicants suggest. Rather, there is evidence before the Court that at least two other anthropologists agree with his conclusions concerning the country affiliations of Mary of Clermont.

Decision of the claim group

38    Third, while the joinder applicants take strong issue with removal of their ancestor Mary of Clermont as an apical ancestor in this native title claim, their disagreement with the decision of the claim group in a properly convened and conducted native title claim group meeting does not give them an interest entitling them to joinder. It is clear that, over time, there has been some reconsideration and refinement by the claim group of the claim and its composition. The joinder applicants are clearly aggrieved by the outcome of the claim group meeting removing their ancestor and her descendants from the claim group description, however as Dowsett J properly observed in Aplin on behalf of the Waanyi Peoples v State of Queensland it is for the claim group to determine whether Mary of Clermont/Mary Johnson was a person affiliated with the lands comprised in the Widi #1 claim, and whether descent from her is a basis for establishing Widi identity. The claim group here has determined that Mary of Clermont/Mary Johnson was not affiliated with the claimed lands. In Butterworth on behalf of the Wiri Core Country Claim v State of Queensland (No 2) I found that the decision making process adopted by the claim group in this case was legitimate. I am not satisfied that the decision of the claim group to remove Mary of Clermont/Mary Johnson as an apical ancestor was in any way capricious or questionable.

Conclusion

39    I am not satisfied that the joinder applicants have demonstrated a prima facie case that they have an interest warranting joinder to the current proceeding.

Interests of justice

40    Finally, I am not persuaded that it is in the interests of justice that Ms Johnson and Ms Hunter be joined as respondents to this proceeding. I accept that the joinder applicants have not delayed in bringing their application for joinder. I also note that, as a result of this decision, they will be excluded from formal participation in the proceedings. However in the circumstances:

    the claim group has made a decision in accordance with proper process that the joinder applicants are not members of the claim group;

    this decision is supported by anthropological evidence; and

    as I have observed earlier in this judgment, this decision is also consistent with evidence put on by the joinder applicants themselves.

41    In conclusion, the native title applicant submits that the joinder of Ms Johnson and Ms Hunter as respondents would re-open matters determined by the claim group and resolved by orders of the Court, and further would jeopardise conduct of the proceedings at this point. I agree.

42    The appropriate order is to dismiss the interlocutory applications filed by Ms Johnson and Ms Hunter.

Associate:

Dated:    28 August 2014