FEDERAL COURT OF AUSTRALIA

Clancy on behalf of the Wulli Wulli People #2 v State of Queensland [2017] FCA 869

ORDERS

THE COURT ORDERS THAT:

1.    Queensland South Native Title Services Limited (QSNTS) be joined as a respondent party to the proceedings.

2.    Within three weeks of the date of this order, the applicant deliver to QSNTS a copy of all of the connection material provided to the State of Queensland thus far in relation to this proceeding (including anthropological reports, witness statements, affidavits and supplementary material) (the connection material).

3.    The costs of copying and collating the connection material be borne by QSNTS.

4.    The parties attend confidential case management to be conducted by a Registrar of this Court in relation to the membership of the claim group of descendants of Maggie Hart and Mi Mi.

5.    There be liberty to apply.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an interlocutory application filed on 4 May 2017 pursuant to s 84(5) of the Native Title Act 1993 (Cth) (Native Title Act) by Queensland South Native Title Service (QSNTS). QSNTS seeks an order that it be joined as a party to the substantive proceedings. Robert Clancy & Ors on behalf of the Wulli Wulli People #2, the applicant in the substantive proceedings, opposes this application.

2    Before turning to the issues arising in the interlocutory application, it is helpful to set out in some detail the background facts relevant to the current stage of proceedings.

Background

3    The substantive proceedings commenced on 23 September 2011 when a native title application under the Native Title Act was lodged. The claim was then known as Wulli Wulli #2, distinguishing it from other native title claims filed by the Wulli Wulli People. On 12 December 2011, an application was filed in QUD 621 of 2011 (Wakka Wakka #3). The applicant in Wulli Wulli #2 has, at all times, been represented by Just Us Lawyers. QSNTS provided the Wakka Wakka #3 claim group with assistance in relation to the filing of that claim. The two claims were wholly overlapped geographically and, as a result, identifed common apical ancestors. It is important to note that until recently, Maggie Hart and Mi Mi have been identified as apical ancestors common to both claims.

4    On 26 July 2012, I ordered that the proceedings in Wulli Wulli #2 and Wakka Wakka #3 be heard together. I also ordered the Registrar to conduct such conferences of experts retained by the applicants in each proceeding as the Registrar directed, with a view to the parties identifying mechanisms for resolving issues between them. QSNTS funded the engagement of an expert to attend the expert conference, as well as the attendance of Wakka Wakka #3 representatives at later case management conferences. Subsequently, QSNTS funded the conduct of a mediation between members of the applicants in both Wulli Wulli #2 and Wakka Wakka #3 on 16-17 June 2014.

5    Following the mediation, the Form 1 applications in both claims were amended in accordance with an agreement of 17 June 2014 signed on behalf of both claim groups. Materially for present purposes, the Form 1 filed in the current proceedings was amended to include descendants of Maggie Hart and Mi Mi as members of the Wulli Wulli #2 claim group. The name of the applicant changed to Robert Clancy & Ors on behalf of the Wulli Wulli and Wakka Wakka Peoples.

6    On 1 April 2016, following a request by Just Us Lawyers on behalf of the applicant, QSNTS agreed to collect evidence from members of the Maggie Hart and Mi Mi descent groups. QSNTS briefed Counsel to settle witness statements, and legal officers employed by QSNTS dedicated time and resources to the preparation of the witness statements.

7    In a letter from Just Us Lawyers to QSNTS under cover of an email dated 12 April 2017, Mr Besley said that the applicant had received the State’s response in relation to connection in the Wulli Wulli #2 and Wakka Wakka #3 matters, and proposed a number of meetings in the context of urgent case management. On or about 13 April 2017, a notice was published in the South Burnett Times newspaper inviting Wulli Wulli and Wakka Wakka People to attend an information meeting on 5 May 2017 and an authorisation meeting on 7 May 2017. Materially, the notice stated:

The Authorisation Meeting will involve two separate meetings: Meeting 1 will decide whether the current claim group description is amended to 1. Remove Mi Mi and Maggie Hart 2. Add Alec Barney and Bessie Rawbelle and 3. Change the way certain existing ancestors are described as set out in the table below….

8    After QSNTS became aware of the notice, the current application for joinder was prepared and filed.

9    Following the authorisation meeting of the Wulli Wulli #2 claim group, the applicant filed an interlocutory application for leave to amend the Form 1 native title determination (the amendment application). The proposed amendments were as follows:

    remove Maggie Hart and Mi Mi from the list of apical ancestors;

    add Bessie Rawbelle to the current list of apical ancestors;

    amend the description of existing ancestors consistent with the Wulli Wulli determination; and

    revert to the former name of the proceeding, that being Wulli Wulli People #2.

10    At a case management hearing on 25 May 2017, I granted QSNTS leave to be joined as a party for the purposes of the amendment application. I further ordered that if a respondent party or QSNTS wished to take an active part in the hearing of the amendment application or otherwise did not consent to the amendment application, that party was to file a notice of its position by 4 pm on 1 June 2017. QSNTS did not file a notice.

11    The amendment application was heard on 16 June 2017. There was no appearance by QSNTS. I made orders granting leave to amend the Form 1 native title application as above. The amended From 1 was filed on 19 June 2017 and the name of this matter reverted to the earlier name of Wulli Wulli #2.

Submissions of the parties

12    Section 84(5) of the Native Title Act 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.

13    It is well established that, in order to warrant joinder as a party to proceedings, the applicant for joinder must demonstrate the follow elements:

(1)    The person has an interest in the proceedings;

(2)    The interest may be affected by a determination in the proceedings; and

(3)    In the interests of justice, the Court should exercise of its discretion to join the person as a party.

(See, for example, Mansfield J in Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [26].)

14    In summary, QSNTS submitted that it has an interest in the proceedings which could be affected because of its status as a recognised native title representative body under s 203AD of the Native Title Act, with a statutory responsibility for representing the interests of native title holders in the southern region of Queensland. QSNTS further submitted that it is in the interests of justice that it be joined to the current proceedings because, in summary:

(1)    The interests held by QSNTS in this case are materially indistinguishable from those held by QSNTS in Edwards on behalf of the Wongkumara People v State of Queensland [2014] FCA 282;

(2)    QSNTS promptly sought to be joined once it became aware of the notice of the planned authorisation meeting seeking to remove the descendants of Maggie Hart and Mi Mi from the QUD311/2011 claim group description, in breach of the processes set out in the mediation agreement;

(3)    There is a public interest in QSNTS properly performing its statutory functions, particularly in light of the fact that it has already committed substantial financial resources to ascertaining the person who holds or may hold native title in relation to the claim area; and

(4)    Joining QSNTS to the proceeding may obviate the need for the Court to entertain at this stage a multitude of joinder applications from the descendants of Maggie Hart and Mi Mi.

15    QSNTS further submitted there was no evidence that QSNTS was endeavouring to take control of the proceedings, or frustrate them or delay their prosecution, whether by aligning itself with any faction of the claim group, seeking to take control of the proceedings on behalf of another faction or by any other method.

16    The applicant submitted that it opposed joinder by QSNTS because, in summary:

(1)    QSNTS had demonstrated no interest of any kind necessary to support joinder. The status of QSNTS as a recipient of funding under s 203FE and such obligations as it may hold as a consequence of receipt of that funding do not constitute interest of a kind sufficient to permit joinder;

(2)    At best, the interests of QSNTS are indirect, undefined and lacking in substance;

(3)    QSNTS had not shown that it was in the interests of justice that the Court exercise its discretion to allow joinder. In particular:

(a)    The delay of QSNTS in seeking joinder was substantial;

(b)    Joinder of QSNTS could result in delay in the resolution of the substantive proceedings. QSNTS had not defined or disclosed the role it proposed to take in the proceedings if joined;

(c)    No benefit had been demonstrated by the joinder of QSNTS; and

(d)    The applicant held concerns that, if QSNTS were permitted to join the proceedings, it would seek to re-agitate, review and re-open issues which had been the subject of prolonged and costly management, negotiation, mediation, investigation and consideration. This would result in delays and possible frustration of the prompt and efficient resolution of the proceedings. These concerns arose from matters including:

(i)    QSNTS had provided assistance to descendants of Maggie Hart and Mi Mi, and Wakka Wakka People;

(ii)    The commitment of staff and substantial funds has been directed towards advancing the claims of descendants of Maggie Hart and Mi Mi and Wakka Wakka people in their assertions of native title;

(iii)    The applicant has allowed the descendants of Maggie Hart and Mi Mi the fullest opportunity to make out a case for inclusion in the applicant group;

(iv)    QSNTS knew from 13 December 2016 when it was provided with the report of Dr Fiona Powell that the available evidence could not support the inclusion of descendants of Maggie Hart and Mi Mi as members of the applicant group;

(v)    QSNTS has been kept well informed of events;

(vi)    Descendants of Maggie Hart and Mi Mi have not put forward credible evidence to support a determination in favour of their inclusion in the claim group;

(vii)    QSNTS has not received any request to take action referable to s 203BB(2) of the Native Title Act;

(viii)    QSNTS has not explained how joinder will enable it to fulfil its facilitation and assistance functions under the Native Title Act;

(ix)    QSNTS has not identified any dispute that might require it to exercise its dispute resolution function; and

(x)    The submission of QSNTS that the notice of 13 April 2017 was a breach of the processes set out in the mediation agreement is without foundation.

17    In submissions and during the hearing of the joinder application, the parties referred in detail to the decision of Reeves J in Edwards [2014] FCA 282. This is not surprising. As I observed to the parties at the hearing, the issues arising in Edwards [2014] FCA 282 are almost identical to those arising in this case. To that extent, it is useful to examine Edwards [2014] FCA 282 briefly before further considering the application before me.

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

18    In Edwards [2014] FCA 282, two applications for joinder were before the Court. The first application was filed by QSNTS and the second application was filed by five individuals who were members of a particular family. The proceedings involved a claim for native title in respect of the Wongkumara People in southern Queensland and northern New South Wales. The native title applicant was represented by a law firm. Reeves J observed at [7] that the initial catalyst for the application for joinder by QSNTS was a series of complaints it received from a number of Wongkumara People about the manner in which the claim was being conducted.

19    His Honour decided that the individuals should be joined as respondents. In relation to the application for joinder by QSNTS, his Honour said as follows:

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.

(Original emphasis.)

20    At [21] his Honour noted there had been only two occasions in the past where a native title representative body had been refused joinder as a party, namely Kooma People v State of Queensland [2002] FCA 86 and Munn v State of Queensland [2002] FCA 78. His Honour observed:

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)

21    His Honour then observed that the proceedings in Kooma [2002] FCA 86 involved quite unusual circumstances. There, the representative body sought joinder to enforce a resolution of the claim group that the representative body should replace the existing legal representatives acting for the claim group and take control of the conduct of the proceedings. Reeves J noted at [22] that the primary Judge in Kooma [2002] FCA 86 formed the view that the representative body had sought joinder to, in effect, align itself with a particular faction of the claim group, with the result that it would be difficult for the representative body to properly perform its statutory functions under s 203BC of the Native Title Act.

22    In Edwards [2014] FCA 282, his Honour found that there was no evidence that QSNTS had sought to influence the views of persons present at a meeting it had convened, or otherwise align itself with that group. His Honour was satisfied that the circumstances of Kooma [2002] FCA 86 were completely different from those in Edwards [2014] FCA 282.

23    His Honour noted that the joinder application in Edwards [2014] FCA 282 had been made six years after the proceedings were commenced. However, his Honour did not consider that the timing of filing the joinder application weighed against joinder. His Honour continued:

25    … 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.

24    In the circumstances his Honour found that it was in the interests of justice that QSNTS be joined as a respondent party to those proceedings.

Consideration

Whether QSNTS has interest, and whether interest affected by determination of native title

25    The applicant does not dispute the status of QSNTS as a recognised native title representative body under the Native Title Act. Unlike in Edwards [2014] FCA 282, however, the applicant in these proceedings does not concede that QSNTS has an interest which could be affected by a determination of native title, such that an order for joinder of QSNTS as a party is justified. In particular, the applicant submits that any interest QSNTS may have is not “direct” within the meaning of the authorities.

26    The applicant relied on a number of authorities supporting the proposition that it would not ordinarily be appropriate for the Court to exercise its power to join a person to native title proceedings pursuant to s 84(5) of the Native Title Act where he or she asserts rights or interests in relation to a claim for native title that, in essence, are remote, indirect, fanciful, lack substance or lack clear definition. I have examined a number of relevant authorities (all of which were cited by the applicant), namely TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2016] FCA 553 at [162]; Hunter v State of South Australia [2016] FCA 779; Malthouse on behalf of the Bar Barrum People #6 v State of Queensland [2016] FCA 692; Sumner v State of South Australia [2014] FCA 534; Cheinmora v State of Western Australia [2013] FCA 727; Gomeroi People v Attorney General of New South Wales [2013] FCA 81 and Worimi Land Council v Minister for Lands (NSW) [2007] FCA 1357; (2007) 164 FCR 181 at 185 [10]. The general principle to which the applicant refers is substantiated by these cases, however in none did the Court find that a representative body recognised under s 203AD of the Native Title Act did not have an interest in relevant proceedings sufficient to support an order for joinder within the meaning of s 84(5) of the Native Title Act.

27    On the contrary, there is extensive authority that representative bodies have both an interest in native title proceedings in respect of claims in their statutorily mandated regions of Australia, and that that interest could be affected by a determination of native title in the proceedings (see Edwards [2014] FCA 282 at [16]; Simms v Minister Land and Water Conservation (NSW) (2002) 193 ALR 257; [2002] FCA 15 at [24]; Bisset v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365 at [22]-[25]; Gale v New South Wales Minister for Land and Water Conservation for the State of New South Wales [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]).

28    Further, Edwards [2014] FCA 282 and Connelly are both cases where QSNTS specifically was found to have an interest supporting joinder to native title proceedings.

29    In my view QSNTS, as the representative body recognised under s 203AD of the Native Title Act, with statutory functions set out Part 11 Division 3 of the Native Title Act referable to the determination area in these proceedings, has an interest in the current proceedings, which interest would be affected by a determination of native title.

Interests of justice

30    More contentious is whether the Court should exercise its discretion to order QSNTS to be joined as a party in the interests of justice. The key issues raised by the applicant are:

    the delay in the lodgment of the application for joinder by QSNTS;

    the failure of QSNTS to advance a clear proposal explaining its purpose and planned role in the proceedings;

    the applicant’s perception that QSNTS will re-agitate the status of the descendants of Maggie Hart and Mi Mi because QSNTS is partisan in its support of those descendants as members of the claim group; and

    the likely delay in resolution of the claim should QSNTS be joined to the proceedings.

31    In my view, the concerns raised by the applicant have little substance for the following reasons.

32    First, while the native title application in Wulli Wulli #2 was filed in 2011, it is clear that notwithstanding case management and mediation, the composition of the native title claim group remains an issue of contention. It is not unusual in native title claims that a considerable amount of time is required to adduce necessary expert and other evidence which is acceptable to all parties. In this case, and notwithstanding orders of this Court amending the claim group description in the Form 1, there appears to be an ongoing live issue regarding the status of descendants of Maggie Hart and Mi Mi, whom until recently were part of the claim group.

33    On the material before me, there is no indication, for example, that the litigation had progressed to the stage that agreement had been reached on the terms of a consent determination. To that extent, the application for joinder cannot be considered a late application in the context of these proceedings.

34    In this respect I also note the approach taken by Reeves J in Edwards [2014] FCA 282 at [25] in relation to the timing of the application for joinder in those proceedings, namely six years after commencement of the proceedings (as is the case here).

35    Further, on the material before the Court, QSNTS became aware of the proposal to remove the descendants of Maggie Hart and Mi Mi from the claim group in April 2017. The application for joinder by QSNTS was filed without delay after QSNTS became so aware.

36    Second, I am not satisfied that QSNTS was or is required to articulate a detailed plan explaining its likely participation in the proceedings. Section 84(5) of the Native Title Act certainly does not include any such requirement, over or above the existence of an interest in the proceedings. In his affidavit sworn 4 May 2017, Mr Kevin Smith of QSNTS deposed that it was not possible at this stage of the proceedings for QSNTS to identify each respect in which the performance of its statutory functions could be enhanced or adversely affected if QSNTS were joined as a party to the proceedings. However, he claimed that if joined, QSNTS would be better equipped to determine, if requested, how to allocate resources to provide assistance. In my view this is a practical and sensible approach to the likely involvement of QSNTS in the proceedings.

37    In any event, the material before the Court indicates that, notwithstanding an earlier signed agreement following mediation which resulted in the amendment to the native title application and the inclusion of descendants of Maggie Hart and Mi Mi in the claim group description, the applicant has reversed its position in this respect. Although QSNTS did not actively oppose the amendment to the Form 1, at this stage, it has instead sought a confidential case management hearing to address this issue. In my view this is a reasonable request, and clearly puts the applicant on notice of both the concerns of QSNTS as the responsible representative body and the imminent events in which QSNTS will be involved in the proceedings.

38    Third, I do not accept the suggestion that QSNTS has taken a partisan position concerning the inclusion of the descendants of Maggie Hart and Mi Mi in the claim group description in these proceedings. No evidence has been advanced demonstrating that the conduct of QSNTS can be equated with that of the representative body in Kooma [2002] FCA 86.

39    QSNTS, as the relevant statutory representative body, has a role in facilitating and assisting participants in the native title process, to ensure proper composition of the claim group seeking native title. This role is perfectly compatible with QSNTS taking a neutral stance so far as concerns the outcome of these proceedings. The fact that QSNTS seeks joinder to the proceedings is not indicative of partisanship. Rather, the material before the Court points to QSNTS fulfilling its statutory role.

40    Although the applicant claims that the report of expert anthropologist Dr Fiona Powell provided to QSNTS in December 2016 indicated that the descendants of Maggie Hart and Mi Mi were not part of the claim group, the evidence before the Court equally demonstrates that Dr Powell recently experienced an unexplained change of opinion concerning this group of descendants. It appears on the material before me, including correspondence between QSNTS and the applicant’s lawyers, that QSNTS was and remains concerned about the probity of the most recent views of Dr Powell. Again, in my view this concern is a manifestation of the performance of its statutory role by QSNTS rather than a display of partisanship.

41    Fourth, while the applicant claims that joinder of QSNTS to the proceedings will result in a delay of the resolution of the claim, in circumstances where this is dispute concerning the proper description of the claim group this is scarcely a reason weighing against the exercise of the Court’s discretion to permit joinder.

Conclusion

42    In my view it is appropriate to order that QSNTS be joined as a party to the proceedings. I am not satisfied in the circumstances that a limitation be placed on that order for joinder. As Mr Preston for QSNTS properly submitted, any such limitation would prevent QSNTS from making submissions in discharge of its statutory role including those supportive of the composition of the native title claim group and its connection to the country.

43    I also consider it appropriate to order that the applicant deliver to QSNTS a copy of all of the connection material provided to the State of Queensland thus far in relation to this proceeding including anthropological reports, witness statements, affidavits and supplementary material. While it may be that QSNTS already has some of this material, it is in my view more efficient to simply order that the connection material be provided at the cost of QSNTS. I note from Mr Preston’s submissions at the hearing of the joinder application that QSNTS is prepared to assume the costs of copying and collating that material.

44    Finally, the issue of inclusion – or not – of the descendants of Maggie Hart and Mi Mi in the claim group description is clearly contentious. The parties at the hearing expressed preparedness to engage in further confidential case management to seek to resolve this issue one way or the other. An order to that effect is appropriate.

Associate:

Dated:    1 August 2017