FEDERAL COURT OF AUSTRALIA

Vea Vea on behalf of the Wadja People v State of Queensland [2020] FCA 405

ORDERS

THE COURT ORDERS THAT:

1.    Cynthia Kemp, Bevan Tull and John Waterton be joined as respondents to the proceeding.

2.    Cynthia Kemp, Bevan Tull and John Waterton pay the native title applicant’s costs of the hearing of the application for joinder and any costs thrown away as a result of the joinder.

3.    The proceeding be listed for a case management hearing on a date to be fixed.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The principal proceeding is an application for determination of native title brought on behalf of the Wadja People (the Wadja claim).

2    The interlocutory application presently before the Court is for the joinder of Cynthia Kemp, Bevan Tull and John Waterton (the joinder applicants) as respondents to the Wadja claim pursuant to s 84(5) of the Native Title Act 1993 (Cth) (the NTA).

3    The joinder applicants are members of the Iman People. The Iman People are native title holders over an area to the south of the Wadja claim (the Iman #2 native title determination): see Doyle on behalf of the Iman People #2 v State of Queensland [2016] FCA 743.

4    Mr Tull and Ms Kemp are directors of the Prescribed Body Corporate for the Iman #2 native title determination. Mr Waterton is a member of an applicant that has, on behalf of the Iman People, brought a further application for determination of native title over an area adjoining the Iman #2 native title determination (QUD413/2017) (the Iman #4 claim).

5    The basis of the application for joinder is the joinder applicants’ assertion that they hold native title rights and interests within part of the Wadja claim area, and that those rights and interests may be affected by a determination of native title in favour of the Wadja People.

6    It is necessary to describe something of the procedural history of the Wadja claim and its relationship to the Iman #4 claim before specifically addressing the interlocutory application.

7    The Wadja claim was filed on 22 August 2012. A number of amendments were made to the claim area because of overlaps with a claim filed on behalf of the Gaangalu Nation People. Those overlaps have been resolved.

8    The Iman #4 claim was filed on 21 August 2017. When the Iman #4 claim was filed, its boundaries wholly encompassed the Wadja claim and also extended beyond the Wadja claim. On 6 November 2017, I ordered that the Iman #4 claim be divided into three areas, referred to as Part A, Part B and Part C. Part A was the part of the Iman #4 claim that wholly overlapped the Wadja claim. I further ordered that Part A be dealt with in the same proceeding as the Wadja claim and be dealt with separately from Part B and Part C. On 10 November 2017 in the Iman #4 claim, and 15 November 2017 in the Wadja claim, I made orders that Part A of the Iman #4 claim and the Wadja claim be referred for mediation concerning the overlapping claim areas.

9    On 2 March 2018, a delegate of the Native Title Registrar made a decision to not accept the Iman #4 claim for registration. The delegate found that s 190C(3) of the NTA was not satisfied as the Wadja claim had already been accepted for registration and the claim groups had common members. The Iman #4 applicant filed an application for reconsideration, but, on 30 April 2018, a Member of the National Native Title Tribunal rejected that application.

10    On 6 July 2018, an interlocutory application was filed in the Iman #4 claim seeking to amend the native title determination application to, inter alia, remove Part A from the claim. Following a hearing on 3 August 2018, I granted leave to amend. The effect of the amendment was that the northern boundary of the Iman #4 claim was withdrawn to the south so that there is no longer any overlap between the Iman #4 claim and the Wadja claim. It may be noted that there was no indication in the written or oral submissions made by the solicitors acting in the Iman #4 claim that any Iman People would or might apply for joinder to the Wadja claim as respondents.

11    The amended Iman #4 application was filed on 9 August 2018. Since then, both the Iman #4 claim and the Wadja claim have progressed significantly. They have progressed on the basis of there being no claim by Iman People over any part of the Wadja claim area.

12    In the Wadja claim, pursuant to programming orders made on 5 November 2018, the parties have exchanged connection material, attended a conference of experts before a registrar and exchanged pleadings. The orders provide for a case management hearing to be conducted on 26 March 2020, at which trial programming orders were anticipated to be made.

13    On 5 November 2019, the joinder applicants filed their application for joinder. The Wadja applicant opposes the application for joinder. The State of Queensland neither consents to nor opposes the application.

14    Section 84(5) of the NTA provides:

The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.

15    In an application for joinder under s 84(5) of the NTA it is necessary to consider:

(1)    whether the applicant for joinder has an interest;

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

(3)    whether it is in the interests of justice for the applicant for joinder to be joined as a party.

16    The first two elements of s 84(5) of the NTA require consideration of whether the applicant for joinder has established a prima facie case that they have an interest that may be affected by a determination of native title in the proceedings: Wakka Wakka People #2 v State of Queensland [2005] FCA 1578 at [6]; Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [8].

17    In Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369 at [21], I summarised some of the principles relevant to joinder of persons asserting competing native title rights and interests as follows:

(1)    The interests of persons who claim to hold native title rights and interests in relation to the land or waters the subject of a proceeding may be sufficient interests.

(2)     A member of another native title group cannot be joined as a respondent for the purpose of acting as a representative to assert native title rights on behalf of the other group. That is because the combined effect of ss 13, 61, 213 and 225 is that an application for a determination of native title can only be made by a duly authorised applicant using the procedures in Pt 3 of the NTA.

(3)     A member of another native title group may be joined as a respondent for the purpose of “defensively asserting” native title rights and interests. Such a person is only permitted to pursue a personal claim to such rights and interests: that is, to protect them from erosion, dilution or discount.

[See Munn v State of Queensland [2002] FCA 486 at [8]; Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 at [22], [24]–[25]; Worimi Local Aboriginal Land Council v Minister for Lands (NSW) (2007) 164 FCR 181 at [10]–[11], [26]; Commonwealth v Clifton (2007) 164 FCR 355 at [48], [57]–[58] and [61]; Moses v Western Australia (2007) 160 FCR 148 at [18]; Holborow v State of Western Australia [2009] FCA 1200 at [4]–[5]; Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [15]–[21]; Lander v State of South Australia [2016] FCA 307 at [73]; A.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 2) [2013] FCA 1000 at [56]–[57]; Turrbal People at [18]–[19].]

18    The joinder applicants have deposed that they, as members of the Iman People, hold rights and interests in the part of the Wadja claim area to the south of Conciliation Creek. They claim that Conciliation Creek is the northern boundary of Iman country.

19    In his affidavit, Mr Waterton deposes that he was told by his father that Iman country, “stretched north along Dawson River, towards Theodore, towards Banana and Moura and along Conciliation Creek west to the Expedition Range”.

20    Mr Tull deposes that he was told by his father that Iman country, “extended west of the Dawson River to the Expedition Range and over the Bigge Range to the plains and scrub country up to Conciliation Creek”. Mr Tull further deposes that he was told by his uncle that Conciliation Creek marked the northern boundary of Iman country.

21    Ms Kemp deposes that she was told by her mother that, “the country west of the Dawson up to the Expedition Range and north from the Bigge Range to Conciliation Creek was Iman country”.

22    The Wadja applicant submits that the joinder applicants have not established a prima facie case that they have interests within the Wadja claim area. The Wadja applicant asserts there are internal inconsistencies in the evidence of the joinder applicants and points to virtually identical wording used by Mr Waterton and his brother Fergus Waterton about what they were told by their father. Further, they submit that Mr Waterton and Mr Tull assert that Conciliation Creek marks the boundary between the Iman People and the Gaangalu Nation People, leaving “no room for the Wadja as an entity between the Iman and the Gangalu”. This is asserted by the Wadja Applicant to be at odds with agreement between the Gaangalu Nation People and the Wadja People that they are neighbours.

23    I consider that the joinder applicants have demonstrated a prima facie case that they hold native title rights and interests in the Wadja claim area south of Conciliation Creek. I do not consider that any agreement between the Gaangalu Nation People and the Wadja People that they are neighbours has been demonstrated to be relevant. Mr Waterton’s affidavit is confusing, and large parts of it are meaningless to an untutored reader in the absence of explanation of the locations of various places he refers to. The affidavits of Mr Tull and Ms Kemp contain little detail to support their assertions. Their evidence is not supported by any anthropological evidence, despite the lengthy time they have had to obtain such evidence since at least the filing of the Iman #4 claim. However, Mr Waterton, Mr Tull and Ms Kemp assert that they were told by their forebears that Iman country extended north to Conciliation Creek and, for present purposes, that must be taken at face value.

24    As there can only be one determination of native title for an area pursuant to s 68 of the NTA, I accept that a determination of native title in favour of the Wadja People would affect any native title rights and interests that the joinder applicants may hold.

25    It is necessary to consider the third element of s 84(5), namely whether it is in the interests of justice for the joinder applicants to be joined to the Wadja claim.

26    In Blucher at [23], I summarised a number of factors held in Gamogab v Akiba (2007) 159 FCR 578 to be relevant to the interests of justice as follows:

(1)    It is relevant that the applicant for joinder could have been joined as of right if he or she had applied in time. That indicates that the principal issue is to assess the prejudice occasioned to the other parties and the Court by the delay in applying to be joined (at [59]).

(2)    It would be odd in this day and age if delay in applying, in itself, were to radically prejudice a potential party (at [59]).

(3)    It is fundamental that an order which directly affects a third person’s rights or liabilities should not be made unless the person is joined as a party (at [60]).

(4)     Considerable weight should be given to the statutory intention of having all parties whose interests may be affected before the Court at the one time to be dealt with by the one determination (at [64]).

(5)     If necessary, conditions may be imposed upon a joinder (at [63]).

27    The joinder applicants submit that the parties to the Wadja claim will not be prejudiced if they are allowed to join. They submit that, rather, the Court will be assisted in determining the outstanding issues in the proceeding, particularly as they have engaged an anthropologist to provide a report identifying their interests in the Wadja claim area. The joinder applicants further submit that the proceeding has not yet reached a stage where the facts in dispute between the parties have been clearly identified (the joinder application having been made before the exchange of pleadings).

28    The Wadja applicant argues that if the joinder is allowed at this advanced stage of the proceeding, they will be caused substantial prejudice. They submit that the proceeding will be substantially delayed. They submit that the significant progression of the Wadja claim, which includes lay evidence having been obtained and expert conferences having been conducted, would be “thrown out of the window”, and that costs would be wasted.

29    Further, the Wadja applicant submits that joinder is sought to effectively prosecute a determination of native title in favour of the Iman People. In support of this submission, the Wadja applicant submits that Ms Kwok, the anthropologist engaged by the joinder applicants, has been engaged to provide an expert report in relation to the native title rights and interests of the Iman People, and not specifically the interests of the joinder applicants. In Schedule 2 of the “Agreement for Provision of Research Services” entered into between the solicitors for the joinder applicants and Ms Kwok on 21 January 2020, Ms Kwok is required to provide, by 31 August 2020:

a report detailing the claim groups (sic) connection and association to the areas south of the blue line (Conciliation Creek) to the straight line marking the northern boundary of the Iman 32 (sic) Determination Area in Map 2 (appended to this schedule).

30    The “claim group” seems to refer to the “Native Title Claim Group”, which is defined by reference to the “Native Title Claim”, which, in turn, is defined to mean the Iman #4 claim and, “any subsequent Native Title Claim made by the Iman people over any part of the area covered by Wadja Peoples’ Native Title Claim QUD 422 of 2012”.

31    Accordingly, Ms Kwok’s report appears to be sought for the purposes of making a native title determination application on behalf of the Iman People over that part of the Wadja claim area extending south from Conciliation Creek. That is curious given that the Iman People previously asserted native title rights and interests over the Wadja claim area, but chose to amend the Iman #4 application to remove that claim. In seeking to explain this conduct, the joinder applicants assert that the Iman People withdrew their claim over the Wadja claim area because the overlap meant that the claim was unable to be registered. This explanation seems implausible, since failure of the registration test does not prevent the prosecution of a native title determination application in the Court. However, that does not ultimately bear upon the present application.

32    The Wadja applicant submits that the joinder applicants should not be joined to the Wadja claim because they intend to make a native title determination application over the Wadja claim area on behalf of the Iman People, and are therefore not merely seeking to defensively protect their native title rights and interests in the area. The reasoning of Reeves J in Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 is cited as supporting such a conclusion. However, his Honour concluded at [21] that the fact that an applicant for joinder intends to bring their own native title determination application does not mean they cannot become respondents, “for the limited purposes of defensively asserting their native title rights and interests in parts of the land covered by the…claim and seeking to prevent any dilution of those rights and interests that may occur in the process of determining the…claim”. While it seems likely that the Iman People intend to enlarge the Iman #4 claim to encompass part of the Wadja claim area, the joinder applicants assert that they are seeking joinder merely to defensively assert their interests. That assertion must be accepted at face value.

33    In an application for joinder, particularly at an advanced stage of a native title proceeding, the adequacy and reasonableness of the joinder applicants’ explanation for their delay in applying to be joined is relevant to the interests of justice.

34    In this case, the joinder applicants have provided no explanation for their delay from the time the boundary of the Iman #4 claim was amended to remove the overlap on 9 August 2018 until their application for joinder was filed on 5 November 2019. It may be noted that the same solicitors represented the applicant in the Iman #2 claim and the Iman #4 claim and represent the joinder applicants. Mr Tull and Ms Kemp are directors of the Prescribed Body Corporate for the Iman #2 native title determination, while Mr Waterton is a member of the applicant in the Iman #4 claim. They have not asserted any ignorance of the amendment of the Iman #4 claim. In the absence of any explanation from the joinder applicants, I infer that they are unable to provide a reasonable explanation for their delay. In the absence of a reasonable explanation, I find that their delay is unreasonable.

35    The Wadja applicant will be prejudiced if the joinder applicants are permitted to join as respondents. The proceeding is at an advanced stage. The joinder will delay the proceeding and is likely to cause wastage of costs.

36    However, I have concluded that it is in the interests of justice to allow the joinder applicants to join the Wadja claim as respondents. That is partly because members of the Iman People have asserted interests in the area south of Conciliation Creek for a substantial time—the claim is not new. Further, unless the joinder is permitted, the prima facie case demonstrated by the joinder applicants will not be able to be considered. As was emphasised in Gamogab v Akiba at [64], considerable weight should be given to the statutory intention of having all parties whose interests may be affected before the Court at the one time.

37    The prejudice to the Wadja applicant can be ameliorated to some extent by an order for costs. The unreasonable delay of the joinder applicants in applying for joinder is likely to be productive of wasted costs, particularly as lay witnesses will have to be re-interviewed and further conferences of experts may be required. Further, the Wadja applicant has incurred costs in respect of the hearing of the present application, since the application could have been heard on an occasion when the proceeding was already listed before the Court if the joinder applicants had not delayed.

38    In considering the issue of costs, I take into account that s 85A(1) of the NTA provides that, unless the Court orders otherwise, each party to a proceeding must bear its own costs. I note that s 85A was applied to an application for joinder in TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2016] FCA 553. Accordingly, the starting point is that each party should bear its own costs: Cheedy and Others (on behalf of the Yindjibarndi People) v Western Australia (No 2) (2011) 286 ALR 139; [2011] FCAFC 163 at [9]. However, under s 85A(2), if the Court is satisfied that a party has, by any unreasonable act or omission, caused another party to incur costs in connection with the conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.

39    I am satisfied that the unreasonable delay of the joinder applicants in making their application for joinder has caused and will cause the Wadja applicant to incur costs. The purpose of making a costs order is not as a punishment or deterrent, but to ameliorate the prejudice caused to the Wadja applicant: cf Cheedy at [9].

40    I will order that the joinder applicants be joined as respondents to the proceeding. I will order that the joinder applicants pay the Wadja applicant’s costs of the hearing of the application for joinder and the Wadja applicant’s costs thrown away as a result of the joinder.

41    I accept that the joinder of members of the Iman People a substantial time after amendment of the Iman #4 claim to withdraw the overlap will be a source of great frustration to the Wadja applicant. The conduct of the joinder applicants in delaying in bringing their application has been unreasonable. This judgment should not be taken to condone that conduct.

Associate:    

Dated:    27 March 2020

SCHEDULE OF PARTIES