FEDERAL COURT OF AUSTRALIA

Alvoen on behalf of the Wakaman People #3 v State of Queensland [2019] FCA 1469

ORDERS

THE COURT ORDERS THAT:

1.    The application filed on 9 April 2019 is dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application filed on 9 April 2019 is dismissed.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    During the public notification period for a native title determination application under s 66 of the Native Title Act 1993 (Cth) (the NTA), a person who claims to hold native title in relation to land or waters in the area covered by the application, or a person whose interest in relation to that land or waters may be affected by a determination in the proceeding, can elect to become a respondent party to the proceeding under s 84(3) by notifying the Court within the period specified in the notice given under s 66. That status is achieved by filing what is described as a Form 5.

2    Mr Rodney Chong and Ms Carol Chong adopted that course in each of two native title determination applications known as the Wakaman #3 and Wakaman #4 claims. Having filed those notices, the Chongs will remain respondent parties throughout the life of those two proceedings unless they obtain leave to withdraw as parties under s 84(7) of the NTA or they are removed as parties under s 84(8). These applications concern the latter provision. It has been made by the authorised Applicant in each of the two Wakaman proceedings (the Wakaman Applicants).

3    Also tangentially affected is a third native title determination application known as the Wakaman #5 claim. In that proceeding, Mr Chong (but not Ms Chong) has sought to replicate the position he currently holds in the Wakaman #3 and Wakaman #4 claims. That is, he has applied to become a respondent party in that proceeding under s 84(5). These reasons do not concern that application. It will be considered separately once the parties have had an opportunity to consider the outcome of the present applications.

4    For the reasons that follow, the Wakaman Applicants’ applications will be dismissed.

FACTUAL CONTEXT

5    Mr Chong and Ms Chong are father and daughter. They are both Wakaman People. Indeed, Mr Chong claims that he is “the most senior elder of the Wakaman”. Mr Chong claims that he and his family are connected by Aboriginal tradition with the land and waters within the Lynd and Tate River systems.

6    Importantly for the purposes of the present applications, both Mr Chong and Ms Chong are recorded in all of the Wakaman claims as being descendants of Mick McTavish and, therefore, as members of the Wakaman native title claim group in those claims. However, it is equally important to note that they both claim that they did not request, nor consent to, their inclusion as members of that group. Hence, Mr Chong said in one of his affidavits filed in these applications that he did not “consent to the [North Queensland Land Council] representing [him] whether by including [him] as part of the Claimant Group or not”.

7    In the Form 5 filed in respect of the Wakaman #3 and Wakaman #4 applications, Mr Chong described the nature of his interests and the manner in which they may be affected by a native title determination in those claims in the following terms:

[Wakaman #3]

The applicants having Native Title rights and interest according to customary lore \ law in respect to the lands subject of the determination applications which may be affected by a native title determination.

[Wakaman #4]

Rodney Chong and his family holds traditional and customary lore / law of Wakaman Country. Rodney Chong and his family will be affected by a Native Title Determination as he does not accept the Wakaman Applicants and the description group that have authorized the application on behalf of the Wakaman people.

8    The Wakaman #3 application was filed on 24 August 2015 in response to a non-claimant application filed by a company called GAG Crystalbrook Pty Ltd. It covers an area of land and waters south west of Chillagoe and north of the Tate River, known as Crystalbrook Station (see the map attached to these reasons as Attachment A).

9    The Wakaman #4 and Wakaman #5 applications were filed on 19 December 2017 and 26 March 2018 respectively. Wakaman #4 covers areas of land and waters south of Chillagoe and north of the Rocky Tate River in North Queensland (see Attachment A).

10    Wakaman #5 covers areas of land and waters south of Mount Mulgrave, north of the Lynd River and north west of Mount Alexander in North Queensland (see Attachment A).

11    A trial of the following separate questions in all three Wakaman claims has been tentatively listed to commence on 15 June 2020:

(a)    but for any question of extinguishment of native title, does native title exist in relation to any, and if so what, land and waters of the claim areas for the Wakaman proceedings?

(b)    in relation to that part of the claim area where the answer to (a) above is in the affirmative:

i.    who are the persons, or each group of persons, holding the common or group rights comprising native title?

ii.    what is the nature and extent of the native title rights and interests?

12    As the number sequence to these three Wakaman claims suggests, there were two earlier Wakaman claims: Wakamin #1 (the then spelling) and Wakaman #2. The first of those claims was lodged with the National Native Title Tribunal in 1997 and the second was lodged in 2004. Notably, Mr Chong was a member of the Authorised Applicant in the first of these claims. Those two claims were dismissed in 2007 for want of prosecution. That dismissal followed a deep division within the Wakaman native title claim group. A main source of that division was Mr Chong’s belief, which is reflected in his Form 5 set out above, that those applications “included people whom [he] did not identify as Wakaman and the area of land being claimed was not Wakaman country”.

13    That division has re-emerged in similar terms in the present Wakaman claims. An example of it is the disagreement which arose at the authorisation meeting held on 30 July 2015 for the Wakaman #3 claim. Mr Chong’s version of that meeting is recorded in one of his affidavits in these applications as follows:

30.    The meeting was initially conducted by Chris Harriss, legal officer from NQLC, Di O’Rourke, anthropologist and Ashley Greenwood, the in-house anthropologist and Christopher Richardson a field officer.

31.    The discussion centred around the non-claimant application lodged by Port Bajool Pty Ltd in relation to the new Crystalbrook Station and what could be done to prevent the freehold application from proceeding.

32.    I suggested to the meeting that the resources to lodge this claim would be better used seeking native title over areas such as Chillagoe, the Tate River and where there are mining interests as the Wakaman did not have an interest in the new Crystalbrook Station.

33.    Frank Deemal requested the NQLC legal officers and anthropologist leave the room and he took over the meeting to allow the group to discuss the issues. The meeting was then convened by Francis Deemal an applicant and notes were taken by Shenda Evans.

34.    I raised the old issue of who were the claimants and the fact the proposed applicants were not entitled to claim to be Wakaman people and their lack of respect for me.

35.    I could see the numbers were against me as usual and all the rest of the group wanted to do was defeat the non- claimant application so my family and I left the meeting before the vote was taken.

36.    I subsequently learned that the Wakaman People #3 claim was lodged.

(Errors in original)

14    A similar disagreement arose at the authorisation meeting for the Wakaman #4 claim which was held on 24 November 2017. Mr John Alvoen, a member of the authorised Applicant for those claims, described that disagreement in an affidavit filed in the present applications in the following terms:

On 24 November 2017 and before my authorisation occurred, senior Wakaman elder Mr Rodney Chong stood up and started to speak. At first we couldn’t hear him. Then NQLC staff provided Mr Chong a microphone connected to a public address system being used at the meeting. When Mr Chong had the microphone he said something like:

“I object to these meetings and I want that objection on the record. I am going to leave now, but I just wanted to say that.”

NQLC thanked Mr Chong for his objection and said it would be placed on the record and Mr Chong then left the meeting of his own accord.

(Italics in original)

15    The dispute concerning Crystalbrook Station and whether it is located within Wakaman country is of more recent origins. Mr Chong provided the following details about Wakaman tribal boundaries more broadly and the particular background to that dispute in one of his affidavits filed in these applications. As to the former he said:

19.    As a proper Wakaman senior male elder I do not accept the tribal boundaries in Wakaman # 3, 4, 5 authorised by the native title holders. The young people talk wrong business they got it all wrong, it is a breach of the Wakaman Tribal boundary and the customary and spiritual stories that looks after my country.

20.    My knowledge of the proper Wakaman boundary goes from Muldiva Creek cod spring over to packsaddle creek on the Tate River over to bulwarra then to 100 mile swamp and to Undarra Mt Surprise over to Brooklyn and Bulleringa National Park, head of the Red River then the junction of the Tate and the Lyn [sic – Lynd] River then onto Black down, Cardross takes in Rookwood and Mungana that’s the real boundary my knowledge was handed down by my mother Jessie Chong and my grandfather Mick McTavish other non Wakaman elders knew my Wakaman boundary too like old fella Crongie, Que, old Sid Stewart and Joe Cod from Georgetown way.

16    As to the latter, he said:

6.    For many years I continued to visit the original Crystalbrook Station whilst it was owned by Keith Black from time to time on my way to the Tate River.

7.    Crystalbrook Station was subdivided, approximately in half, and the portion including the Tate River was included in Bullockhead Station and the balance became Crystalbrook Station as it is now known (the new Crystalbrook Station).

8.    The Tate River, as I call it, is a place on the Tate River (now on Bullockhead Station). My family, who are the Wakaman people, often visited the Tate River. We used to camp and fish and live there at the old Fisherton Township. There are some special story places there, my brother Bobby Chong (deceased) and my sister Mary Wason (deceased) were born there. We still go to the Tate River area from time to time to celebrate Chong’s reunion, but I do not visit new Crystalbrook as often as we like to any more.

…

14.    I do not recognise the applicant’s knowledge and affidavits that of the Wakaman # 3, 4 & 5 lodged in the Federal Court. Their knowledge of the customary law and traditional practices and knowledge of the Wakaman boundary is different to my knowledge.

…

28.    I have joined as a party to the Wakaman People #3 claim and will not consent to or be part of a determination of native title in favour of the above applicants in the Waksman People#3 claim over the area known as Crystalbrook Station. I will not consent while I and my children’s Wakaman native title rights are affected by the native title claim process over Crystalbrook station. I also do not accept the Anthropological connection material provided by NQLC.

(Errors in original)

THE CONTENTIONS

17    In summary, the Wakaman Applicants have advanced two contentions in support of their applications: a construction issue and a joinder issue. On the first, they contended that, properly construed, s 84(3)(a)(ii) of the NTA refers to persons who claim to hold native title in relation to the land or waters of a claim area “in competition” with the native title claim group concerned, rather than as dissentient members of that claim group. Further, they contended that the word “interest” in s 84(3)(a)(iii) of the NTA refers to an interest other than a native title right and interest. Accordingly, they contended that, since Mr Chong and Ms Chong were Wakaman People and their only interests in the claim areas of the Wakaman claims existed under the traditional laws and customs of the Wakaman People, and not under the traditional laws and customs of some competing group, they did not fall within the terms of either s 84(3)(a)(ii) or 84(3)(a)(iii). Consequently, neither of them was properly joined as a respondent party in the Wakaman #3 and Wakaman #4 proceedings. Secondly, and alternatively, on the joinder issue, they contended that it was clear from the statements made by Mr Chong in affidavits made by him and filed in the present applications that both he and his daughter were “dissentient members” of the Wakaman claim group. As such, relying on the judgment of Mansfield J in Starkey v South Australia (2011) 193 FCR 450; [2011] FCA 456 (Starkey), they contended that the Chongs should be removed as respondent parties under s 84(8) of the NTA.

18    In response, Mr Chong contended that he should remain as a respondent party in both proceedings because, as a senior Wakaman person, he had a genuine and clearly defined interest in the two separate questions that were to be determined at the trial which is tentatively fixed to commence in June 2020. The particular questions that he stated he wished to pursue were “what … land and waters [within] the claim areas is Wakaman Country” and “who are the persons, or each group of persons, holding the common or group rights comprising native title for that Wakaman Country”. Mr Chong claimed that he had an interest, responsibility and duty to “protect and preserve the native title interests of the Wakaman People” and that included “establishing and maintaining the status of ‘the right people on the right country’”. In that respect, he contended he should remain a respondent party to the Wakaman #3 and Wakaman #4 proceedings so that he can protect those interests from “erosion, dilution, or discount”.

19    Ms Chong’s submissions were essentially supportive of her father’s contentions above.

RELEVANT STATUTORY PROVISIONS

20    Section 84 of the NTA relevantly provides:

…

Affected persons

(3)    Another person is a party to the proceedings if:

   (a)    any of the following applies:

(i)    the person is covered by any of subparagraphs 66(3)(a)(i) to (vi);

(ii)    the person claims to hold native title in relation to land or waters in the area covered by the application;

(iii)    the person’s interest, in relation to land or waters, may be affected by a determination in the proceedings; and

(b)    the person notifies the Federal Court, in writing, that the person wants to be a party to the proceeding:

(i)    within the period specified in the notice under section 66; or

(ii)    if notice of an amended application is given under paragraph 66A(1A)(e)—within the period specified in the notice under that paragraph.

…

Joining parties

(5)    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.

…

Dismissing parties

(8)    The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.

Court to consider dismissing parties

(9)    The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:

   (a)    the following apply:

(i)    the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and

(ii)    the person’s interests are properly represented in the proceedings by another party; or

(b)    the person never had, or no longer has, interests that may be affected by a determination in the proceedings.

RELEVANT PRINCIPLES

21    In respect of the construction issue raised by the Wakaman Applicants, the competing views have been variously, but not conclusively, expressed in the following four judgments of this Court: Butterworth v Queensland (2010) 184 FCR 397; [2010] FCA 325 (Butterworth) per Logan J; Starkey; Drury v Western Australia (2016) 244 FCR 294; [2016] FCA 52 (Drury) per Barker J; and Lander v State of South Australia [2016] FCA 307 (Lander) per White J.

22    First, in Butterworth, Logan J expressed the view that, upon a person filing a Form 5 within time under s 66 of the NTA, he or she was duly joined as a party in the proceeding under s 84(3) of the NTA, subject only to the proviso that that party may be removed as a party at any time under s 84(8) (see at [33] and [38]).

23    On the other hand, in Starkey, Mansfield J observed (without deciding) that there was “much to be said” for the view that s 84(3)(a)(ii) referred to a person who claimed to hold native title in relation to the land or waters concerned in competition with the claim group, rather than as a member of it. Furthermore, his Honour observed, the word “interest” in s 84(3)(a)(iii) referred to an interest other than a native title right and interest (see at [66]). I interpose to record that the similarity between these observations and the Wakaman Applicants’ submissions above (at [17]) is not coincidental.

24    To similar effect, in Drury, Barker J said (without expressing a final view) that it was “difficult to imagine [s 84(3)(a)(ii)] intended to provide a vehicle for any dissentient member of a relevant claim group to assert [that] they are already a respondent party to a proceeding” (see at [22]).

25    Finally, in Lander, White J (again without expressing a concluded view) said that, in his view, there was “considerable force” in the submission that s 84(3) did not allow a member of a claim group to become a respondent party in that group’s native title claim (see at [19] and [21]). In particular, his Honour said (at [19]):

… there is a seeming incongruity if members of a claim group who have authorised a particular person or persons to bring proceedings may, by the simple expedient of filing a notice under s 84(3), become independent parties to the same proceedings and thereby be in a position to oppose, or act inconsistently with, the very application which they have authorised.

26    However, the tentative views Mansfield J expressed in Starkey above must be read in the context of his Honour’s earlier conclusions on the same issue, formed after an exhaustive review of the relevant authorities. Those conclusions were as follows (at [61]):

…

(1)    there is no necessary legal impediment to a member of a native title claim group being joined, or remaining, as a respondent party to the claim, but

(2)    the circumstances in which a dissentient member of a native title claim group will be permitted to become a respondent party under s 84(5) or, having become a respondent party under s 84(3), will be permitted to remain a respondent party, will be rare.

…

27    Since the judgment in Starkey, putting aside applications for joinder by an Indigenous person under s 84(5) which have commonly eventuated shortly before a planned consent determination hearing in a native title claim and have usually been rejected for their lateness (see, for example, most recently, Foster on behalf of the Gungarri People #4 v State of Queensland [2019] FCA 1300 per Reeves J), there has been a limited number of decisions where the joinder of an Indigenous person has been examined in the context of s 84(3). They have included Drury, Lander, TR (Deceased) on behalf of the Kariyarra – Pipingarra People v State of Western Australia [2016] FCA 1158 per North ACJ and Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 (Miller) per White J.

28    In the most recent of these judgments, Miller, White J conducted an extensive and detailed review of the authorities on that point and identified a number of principles developed therein, the more pertinent of which, for present purposes, may be summarised as follows:

(a)    the discretion vested under s 84(8) is mirrored in that vested under s 84(5) (see at [104]);

(b)    the “‘interests’ to which s 84(5) refers are not confined by the definition of the word ‘interest’ in s 253 of the [NTA]” (see at [105]);

(c)    the particular circumstances specified in s 84(9) are not exhaustive of the circumstances in which a person may be removed as a party under s 84(8) (see at [106]);

(d)    a person joined as a respondent party under s 84(3), or s 84(5), cannot seek a determination of native title in favour of a group of persons without making an application under ss 13 and 61 of the NTA (see at [107]);

(e)    however, a person can be joined and remain a respondent party “for the quite separate and different purposes of seeking to protect the native title rights and interests they claim to hold from erosion, dilution or discount” (see at [108]);

(f)    a prospective or existing respondent who can point to a “clear and legitimate objective which he or she hopes to achieve” as a respondent party will usually be successful in a joinder application unless there are other factors weighing against the exercise of that discretion (see at [109]);

(g)    dissatisfaction of a claim group member with the institution of proceedings or the manner of their conduct does not, of itself, warrant that person being joined, or remaining, a respondent party (see at [120]);

(h)    however, if such a person contends that their native title rights and interests exist by reason of their membership of a different and competing claim group, they may be permitted to remain a respondent party (see at [121]–[123]);

(i)    further, such a person may also be permitted to remain as a respondent party where they are disputing the composition of the claim group, rather than pursing an intra-mural dispute (see at [124]–[129]); and

(j)    a person who is a member of a sub-group of the native title claim group will not usually be joined as a respondent party (see at [130]).

CONSIDERATION

29    In applying the principles outlined above to the present applications, first, I do not consider I need to determine the construction issue raised by the Wakaman Applicants. That is so primarily because I do not consider the Chongs can be properly characterised as dissentient members of the Wakaman claim group. It follows that, even on the construction advanced by the Wakaman Applicants, they would not have been prevented from relying on s 84(3)(a)(ii) of the NTA to become respondent parties to the Wakaman #3 and Wakaman #4 proceedings. Nonetheless, I would make the following observations with respect to this construction issue.

30    First, I respectfully agree with the observations made in the authorities referred to above that the legislative scheme of the NTA supports the conclusion that the joinder provisions of s 84(3)(a)(ii) were not intended to apply to dissentient members of a native title claim group to allow them to pursue, what have been described as, “intra-mural disputes”, including those relating to the commencement of, or conduct by, an authorised applicant of a native title claim group’s native title determination application.

31    Secondly, however, I do not consider there is any indication in the text of s 84(3) which expresses that limitation. Thirdly, there is, therefore, in my respectful view, considerable force in the view expressed by Logan J that the statutory mechanism which is intended to regulate any improper use of the joinder provisions of s 84(3)(b)(ii) lies within the broad discretion contained in s 84(8) to order that a person already joined as a party cease to be so joined. This appropriately provides for any such joinder issue to be determined according to the particular factual circumstances of each case (see, for example, the observations of White J in Lander at [25]). For this reason, and contrary to the contentions of the Wakaman Applicants, I do not consider any assistance can be gained by comparing the factual circumstances of the Chongs in these applications with those of Mr Reid in Starkey.

32    I turn from that construction issue to the joinder issue raised by the Wakaman Applicants. My reasons for concluding that, in the particular factual circumstances of these applications, the Chongs should not cease to be respondent parties in these two proceedings are as follows. First, as is already mentioned above, I do not consider the Chongs can truly be characterised as “dissentient members” of the Wakaman native title claim group. That is so because, while it is common ground that they have been included as members of that claim group, that was apparently done in recognition of their accepted status as Wakaman People, not because they sought to have that status recognised in the three claims presently being pursued by that claim group. I have used the word “apparently” because the evidence shows that, not only did the Chongs not consent to their inclusion in that claim group for that purpose, they have been opposed to those claims from the outset. For instance, the evidence shows that the Chongs did not participate in the authorisation process for these claims beyond attending at the commencement of the authorisation meetings, stating their grounds of opposition to the claims in their present forms and then leaving.

33    It follows that the Chongs cannot be properly regarded as seeking to use their position as respondent parties to the Wakaman #3 and Wakaman #4 claims to pursue an “intra-mural dispute”. That is so because they have not sought to raise a dispute on an issue that could be peculiarly determined by the Wakaman claim group. For example, a dispute concerning their acceptance as one of its members. Nor have they sought to challenge the actions of the Wakaman Applicants in their pursuit of the present claims. Rather, they are fundamentally opposed to those claims, both as to the composition of the Wakaman claim group, and as to the boundaries of the claim areas concerned.

34    The former opposition is longstanding; it has been at the heart of the disputes between the Chongs and the various Wakaman claim groups on whose behalf claims have been made and pursued since soon after the first Wakaman claim was lodged in 1997 (see at [12] above). The latter is more recent. With respect to the Wakaman #3 claim, it concerns Crystalbrook Station and whether both the Tate River area, which is located in what was formerly Bullockhead Station, and the balance of Crystalbrook Station, now known as New Crystalbrook Station, should be included within Wakaman Country (see at [15] above).

35    With respect to both of these issues, the Chongs clearly have their own views about the traditional laws and customs of the Wakaman People, about who it is that comprise the Wakaman People and about the lands and waters in respect of which the Wakaman People legitimately hold native title. They have expressed those views in various affidavits and submissions filed in respect of these applications and they have outlined the objectives they seek to achieve in pursuing them (see, for example, at [18] above). In this latter respect, they have therefore, in my view, engaged the principle set out at [28(f)] above. It is also worth adding that, while the Wakaman Applicants, and the Wakaman claim group they represent, disagree with those views and claim that they are not supported by the available anthropological research, it has not been suggested that those views are not genuinely held.

36    Furthermore, since these differences between the Chongs and the Wakaman claim group relate to the composition of that group of Wakaman persons who hold native title in the areas covered by the three Wakaman claims and also to the boundaries of those areas, if they remain unresolved, they will ultimately have to be determined by the Court. So much is dictated by various provisions of the NTA, including ss 94A and 225. Hence, those issues are central to the separate questions which are to be considered at the trial tentatively set for June 2020. This factor, it should be added, reinforces the reasoning above that the Chongs are not pursuing “intra-mural disputes” which can only be determined by the Wakaman claim group.

37    Having regard to all these circumstances, I consider the Chongs should be permitted to remain respondent parties to the Wakaman #3 and Wakaman #4 claims. It is only if they retain that status that they will be able to properly agitate their views about the matters mentioned above in the appropriate forum, namely the Court, and thereby act to protect their native title interests as they perceive them to exist from “erosion, dilution or discount” by a determination of native title in those claims. That is a well-established basis for becoming, or remaining, a respondent party in native title proceedings (see at [28(e)] above).

CONCLUSION

38    For these reasons, I do not consider that Mr Chong and Ms Chong should cease to be parties to the Wakaman #3 and Wakaman #4 claims. Accordingly, the Wakaman Applicants’ applications filed on 9 April 2019 must be dismissed.

Associate:    

Dated:    6 September 2019

ATTACHMENT A

SCHEDULE OF PARTIES

SCHEDULE OF PARTIES