FEDERAL COURT OF AUSTRALIA

Bell on behalf of the Wakka Wakka People #4 v State of Queensland [2020] FCA 695

ORDERS

THE COURT ORDERS THAT:

1.    Leslie Stewart be joined as a respondent to the proceedings upon the condition that he may only plead, lead evidence and make submissions upon the following issues:

(a)    whether Nellie, mother of Elsie Fitzgerald/Edwards (“Nellie”) was a Wakka Wakka person;

(b)    whether, as a descendant of Nellie who asserts he holds rights and interests in Part B of the claim area under the traditional laws and customs of a group of people other than the Wakka Wakka People, he is, or ought to be, included as a member of the claim group.

2.    The application for joinder by Ann Betts, Rachael Briggs, Erica Gyemore, Mary Boney and Christine Lister be dismissed.

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 a determination of native title brought on behalf of the Wakka Wakka People over land and waters to the west of Maryborough in south-east Queensland (the Wakka Wakka #4 claim).

2    The interlocutory application presently before the Court is for the joinder of the persons comprising the applicant to the Wulli Wulli People #3 proceedings (QUD619/2017) (the Wulli Wulli #3 applicant) and Mr Leslie Stewart (collectively the joinder applicants) as respondents pursuant to s 84(5) of the Native Title Act 1993 (Cth) (the NTA).

3    The Wulli Wulli #3 applicant is comprised of Ann Betts, Rachael Briggs, Erica Gyemore, Mary Boney and Christine Lister. They assert an interest in the proceeding as a party to an agreement for alternative dispute resolution with the Wakka Wakka #4 applicant. They contend that their interests may be affected by a determination of native title made otherwise than in accordance with an alternative dispute resolution report dated 16 November 2018 (the ADR Report).

4    Mr Stewart asserts that he is a descendant of Nellie, mother of Elsie Fitzgerald/Edwards (Nellie). In the ADR Report, Nellie was found to have held traditional rights and interests in Part B of the Wakka Wakka #4 claim area at about the time of first European settlement. Mr Stewart claims that he holds native title rights and interests in Part B as a descendant of Nellie, but that he is excluded from the present description of the native title claim group.

5    It is necessary to describe something of the procedural history of the Wakka Wakka #4 claim and the alternative dispute resolution process engaged in with the Wulli Wulli #3 applicant before specifically addressing the interlocutory application before the Court.

Procedural History

6    The Wakka Wakka #4 claim was filed on 10 February 2012. On 13 October 2017, Reeves J ordered that the claim be separated into two parts, referred to as “Part A” and “Part B”, to be considered separately. Part B was contested by other Indigenous parties who asserted native title interests in the area, including the Wulli Wulli #3 applicant who had filed an overlapping claim.

7    By orders made on 6 February 2018, I referred the Part B overlap dispute for resolution by way of an alternative dispute resolution process (ADR process). An “Agreement for Alternative Dispute Resolution” was entered into by the Wakka Wakka #4 applicant, the Wulli Wulli #3 applicant and Indigenous respondents on 20 April 2018 to facilitate the conduct of the ADR process (the ADR Agreement).

8    The ADR process required that a report be prepared by the Hon John Mansfield and Mr Kim McCaul and provided to the Court. The ADR Report was to determine whether any of the ancestors of the Wakka Wakka #4 claim group, the Wulli Wulli #3 claim group, or the Indigenous respondents held traditional rights and interests in Part B at the time of first European settlement. Under the ADR Agreement, the disputants agreed to take all such steps as were reasonably necessary to give effect to the contents of the ADR Report, including refraining from taking any action which would hinder or prevent the content of the ADR Report being carried into effect by orders of the Federal Court.

9    The ADR Report was provided to the Court on 16 November 2018. The ADR Report concluded, relevantly, that:

(1)    Five of the persons named in the application as ancestors of the Wakka Wakka #4 claim group held traditional rights and interests in Part B.

(2)    The ancestors of the Wulli Wulli #3 claim group did not hold traditional rights and interests in Part B.

(3)    Nellie, who had not been named as an ancestor in either the Wakka Wakka #4 claim or the Wulli Wulli #3 claim, held traditional rights and interests in the northern parts of Part B.

(4)    The descendants of Nellie are entitled to be included in any determination over Part B.

(5)    A concluded view could not be reached upon whether Nellie was the daughter of Alec Barney, a Wulli Wulli apical ancestor, although the data seemed to favour the view that she was not.

10    On 12 February 2019, the Wulli Wulli #3 applicant filed an interlocutory application seeking to be joined as a party to the Wakka Wakka #4 proceedings. The Wulli Wulli #3 applicant asserted that they held native title rights and interests in Part B, as well as having an interest in the proceedings as a party to the ADR Agreement.

11    A meeting of the Wakka Wakka #4 claim group was held on 16 February 2019 to consider whether the claim group description should be amended to include Nellie as an apical ancestor. The claim group decided not to include her as an apical ancestor.

12    An amended interlocutory application was filed on 11 March 2019 which sought to also join Leslie Stewart, Rachael Briggs and Phyllis Lea as parties to the Wakka Wakka #4 proceedings.

13    On 29 March 2019 the Wulli Wulli #3 applicant filed an amended native title determination application withdrawing its claim over Part B in accordance with the findings of the ADR Report.

14    On 24 April 2019, a further amended interlocutory application was filed which removed Rachael Briggs and Phyllis Lea, and sought only to join the Wulli Wulli #3 applicant and Leslie Stewart as respondents. That is the joinder application currently before the Court.

15    Another meeting of the Wakka Wakka #4 claim group was held on 26 May 2019. This time the claim group resolved to amend the Wakka Wakka #4 claim group description to include Nellie as an apical ancestor. On 26 July 2019, the Wakka Wakka #4 applicant filed a further amended native title determination application which effected that resolution. Following the amendment, the native title claim group was described as follows:

The native title claim group is made up of families whose members identify as Wakka Wakka in accordance with traditional laws acknowledged and traditional customs observed by them. Membership is based on the principle of cognatic descent (i.e. descent traced through either mother or father).

This application is brought on behalf Aboriginal people whose members identify as Wakka Wakka People, who are descended from the following ancestors:

[There were 18 ancestors named, including Nellie, mother of Elsie Fitzgerald/Edwards.]

16    The interlocutory application for joinder was heard on 18 October 2019. The Wakka Wakka #4 applicant opposed the application for joinder. The State of Queensland (the State) neither consented to nor opposed the application.

17    A key issue at the hearing was that the claim group description required that descendants of the listed apical ancestors also identify as Wakka Wakka in order to be eligible for membership. On the face of it, that would exclude Mr Stewart, since he identifies as Wulli Wulli, not Wakka Wakka.

18    At the hearing, counsel for the Wakka Wakka #4 applicant advised that they intended to seek instructions about holding a claim group meeting to consider amending the claim group description to remove the requirement of identification as Wakka Wakka.

19    On 8 December 2019, a meeting of the Wakka Wakka #4 claim group was held, at which it was resolved to amend the claim group description so as to remove the requirement that claim group members identify as Wakka Wakka. It was also resolved that the Wakka Wakka #4 applicant be replaced. One of the 16 persons comprising the replacement applicant was Ms Elsie Prince, a descendant of the apical ancestor Nellie.

20    On 29 January 2020, I made orders allowing replacement of the applicant and other amendments of the application. A further amended native title determination application was filed on 30 January 2020, amending the claim group description in the manner resolved by the claim group. Schedule A to the native title determination application filed on 3 February 2020, which describes the native title claim group, now provides:

The native title claim group on behalf of whom this application is made are referred to in this application as the Wakka Wakka People. The Wakka Wakka People are the Aboriginal people who have a connection to the application area in accordance with their traditional laws acknowledged and traditional customs observed and are descendants of one or more of the following ancestors:

[There are 18 ancestors named, including Nellie, mother of Elsie Fitzgerald/Edwards.]

21    I made orders on 21 November 2019 and 12 May 2020 that the parties provide submissions concerning the outcome of the meeting of 8 December 2019. The parties provided such submissions. The joinder applicants maintain that their interests may be adversely affected by a determination in the terms sought by the Wakka Wakka #4 applicant and that they ought to be joined.

Consideration

22    The applications for joinder are made under s 84(5) of the NTA. That section 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.

23    In exercising the power under s 84(5) of the NTA, it is necessary to have regard to:

(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.

24    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].

25    In Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 at 6, 18 and 40, Black CJ, as a member of the Full Court, held that an interest for the purposes of s 84(5) of the NTA is a broad conception, and is not limited to the matters within the definition of “interest” in s 253 of the NTA. However, as the Chief Justice observed at 6, the right to become a party is not given to “any person”, so, “something more than that possessed by ‘any person’ is required”. His Honour held at 7–8 that the interest need not be proprietary, legal or equitable in nature, but must not be “indirect, remote or lacking substance”; must “be capable of clear definition”; must be “of such character that [it] may be affected in a demonstrable way by a determination in relation to the application”; and must be more than an interest of, “an emotional, conscientious, ideological or intellectual kind”. In Woodridge v Minister for Land and Water Conservation for the State of New South Wales (2001) 108 FCR 527 at [35], it was held that the affected interest need not be proprietary, and may include a contractual interest in relation to the land the subject of the application.

26    The third element of s 84(5) requires that the joinder is in the interests of justice. In Gamogab v Akiba (2007) 159 FCR 578, the Full Court observed that the factors relevant to assessing the interests of justice include the following:

(1)    Whether the applicant for joinder could have been joined as of right if he or she had applied in time: in such a case, 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    As the joinder applicants, the Wulli Wulli #3 applicant and Mr Stewart, claim interests in the proceeding on different bases, I will address their interests separately.

Mr Stewart

28    The ADR Report found that Mr Stewart’s ancestor Nellie held traditional rights and interests in Part B, and concluded that her descendants should be included in the Wakka Wakka #4 claim group description. However, the ADR Report was silent as to the language or tribal identification of Nellie. Mr Stewart identifies as a Wulli Wulli person by descent from his grandmother Elsie, daughter of Nellie, on the basis that Nellie is the daughter of Alec Barney, a Wulli Wulli apical ancestor. There is an antecedent factual issue as to whether Nellie is the daughter of Alec Barney.

29    At the time of the hearing, Nellie had been included in the Wakka Wakka #4 claim group description as an apical ancestor. However, the claim group description required, not only descent from a named apical ancestor, but that descendants identify as Wakka Wakka. As Mr Stewart identifies as Wulli Wulli, he claimed he was excluded from the Wakka Wakka #4 claim group.

30    It seemed to be accepted by all parties at the hearing that Mr Stewart, as a descendant of Nellie, had a relevant interest, that he was excluded from the claim group by the requirement to identify as Wakka Wakka and that his interests could be adversely affected by a determination made in the proceeding.

31    Following the hearing, the Wakka Wakka #4 applicant submits that the latest amendment of the Wakka Wakka #4 claim group description means that Mr Stewart is a member of the Wakka Wakka #4 claim group through his descent from Nellie.

32    The Wakka Wakka #4 applicant also submits that as Mr Stewart is now a member of the claim group, his interests are now represented by the Wakka Wakka #4 applicant. They emphasise that the newly constituted Wakka Wakka #4 applicant now includes a descendant of Nellie, Ms Elsie Prince.

33    The State submits that the removal of the requirement for descendants of named apical ancestors to also identify as Wakka Wakka does not unquestionably result in Mr Stewart being included in the native title claim group. The State submits that:

(1)    The claim group description requires that the Wakka Wakka People have a connection to the application area, “in accordance with their traditional laws acknowledged and traditional customs observed”.

(2)    This description of membership appears to require a person to have a connection to the claim area through Wakka Wakka traditional laws and customs acknowledged and observed as well as descent from one of the listed apical ancestors.

(3)    If Mr Stewart asserts that he follows Wulli Wulli traditional laws acknowledged and customs observed, then the question remains as to whether he is excluded from the Wakka Wakka native title claim group.

34    Mr Stewart submits that the latest amendment of the claim group description does not alter his position. Mr Stewart raises similar points to the State in relation to the ambiguity of the claim group description. Mr Stewart also submits that even if he is to be regarded as a member of the Wakka Wakka #4 claim group, his joinder is warranted because of, “the real difficulty in [his] interests and the interests of the descendants of Nellie being properly represented”.

35    The Wakka Wakka #4 applicant submits that in the current claim group description, “the Wakka Wakka People” is used as a shorthand for the native title claim group. They contend that when read in light of the first sentence, the second sentence makes it clear that the native title claim group is intended to capture all Aboriginal people who have a connection to the application area in accordance with their traditional laws and customs and who happen to trace their ancestry from particular individuals.

36    I accept the submission of the State that the removal of the requirement to identify as Wakka Wakka does not “unquestionably” result in Mr Stewart being included in the claim group. The claim description begins:

The native title claim group on behalf of whom this application is made are referred to in this application as the Wakka Wakka People. The Wakka Wakka People are the Aboriginal people who have a connection to the application area in accordance with their traditional laws acknowledged and traditional customs observed and are descendants of one or more of the following ancestors…

37    It is true, as the Wakka Wakka #4 applicant submits, that the description may operate to define all the Aboriginal people who have a connection to the application area in accordance with their own traditional laws and customs as Wakka Wakka People. If so, the description replaces the former requirement that descendants of the named ancestors identify as Wakka Wakka with a statement that such descendants are deemed to be Wakka Wakka. In circumstances where it is clear that Mr Stewart does not identify as Wakka Wakka, the imposition of that label upon him is somewhat disingenuous. The misleading and complicated claim group description was capable of being avoided.

38    As it stands, the interpretation of the claim group description contended for by the Wakka Wakka #4 applicant is not the only one available. The description is ambiguous as to whether it requires the connection to be in accordance with the traditional laws and customs of the Wakka Wakka People, or whether it is sufficient that the connection be in accordance with the traditional laws and customs of another group of Aboriginal people.

39    During the hearing, counsel for the Wakka Wakka #4 applicant emphasised that it was their intention to include Mr Stewart within the claim group description. That may be so, but originating applications, like pleadings, are construed objectively: cf Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 at [42]. On an objective construction, the claim group description is ambiguous. The ambiguity means that, on one reading, Mr Stewart may be excluded from the Wakka Wakka #4 claim group. I therefore accept that Mr Stewart has demonstrated, on a prima facie basis, an interest that may be affected by a determination in the proceedings.

40    It must also be demonstrated that Mr Stewart’s joinder is in the interests of justice.

41    Mr Stewart submits that it would be in the interests of justice for him to be joined given the in rem nature of the proceedings and that the joinder is made following, and to give effect to, the recent outcomes of the ADR process.

42    The Wakka Wakka #4 applicant submits that joining Mr Stewart would risk undermining the findings of the ADR Report, since he asserts that he is Wulli Wulli on the basis of his descent from Alec Barney, whom he claims is Nellie’s father, when the ADR Report concluded that Part B was not part of Alec Barney’s traditional country. The Wakka Wakka #4 applicant also opposes the joinder on the basis that Mr Stewart’s participation in Wulli Wulli native title matters is relatively recent, that his application for joinder was filed seven years after the filing of the Wakka Wakka #4 claim, and that allowing him to join at this advanced stage would substantially delay or prevent a consent determination and result in substantial prejudice to the Wakka Wakka # claim group.

43    Mr Stewart argues in response that his claim is as a Wulli Wulli person by descent from his grandmother Elsie, daughter of Nellie, and not through Alec Barney. Mr Stewart notes that there was no finding in the ADR Report that Nellie identified as Wakka Wakka. Mr Stewart submits that questions relating to his descent and identification are issues to be determined following a trial.

44    The Wakka Wakka #4 applicant may be prejudiced by the joinder of Mr Stewart at such a late stage. However, it must be recognised that the inclusion of Nellie as an apical ancestor has only occurred recently. Matters were brought to a head by the ADR Report and the amendment of the Wulli Wulli #3 claim to remove the Part B area.

45    The authorities demonstrate that there are two types of applications where a member of a claim group seeks to join as a respondent party. The first is where the applicant is a “dissentient member of a native title claim group” who seeks to pursue an “intra-mural dispute” which could be peculiarly determined by that claim group. It was held in Starkey v State of South Australia (2011) 193 FCR 450 at [61] that the circumstances in which joinder of such a dissentient member will be permitted, “will be rare”. The second is where a claim group member is, “disputing the composition of the claim group, rather than pursuing an intra-mural dispute”: Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 at [124]–[129]; Alvoen on behalf of the Wakaman People #3 v State of Queensland [2019] FCA 1469 at [36]; TR (deceased) on behalf of the Kariyarra-Pipingarra People v State of Western Australia [2016] FCA 1158 at [50]. In such a case joinder is more readily permitted.

46    Mr Stewart comes within the second of these categories. I consider that the interests of justice require that Mr Stewart be permitted to join as a respondent so that he can be heard upon the issues relating to the composition of the claim group which affect his interests.

47    Mr Stewart also submits that a real difficulty is that his interests and the interests of the descendants of Nellie are not being properly represented by the Wakka Wakka #4 applicant, and that provides a sufficient basis for joinder, citing Combined Dulabed & Malanbarra/Yidinji Peoples v State of Queensland (2005) 214 ALR 306; [2004] FCA 1632 at [12]. However, the question of whether the interests of Nellie’s descendants are being properly represented is an intra-mural dispute, and joinder should not be permitted for that purpose: see, for example, Kulkalgal People v State of Queensland [2003] FCA 163 at [7]–[8].

48    The parties accept that any joinder of Mr Stewart should be made upon conditions. The Wakka Wakka #4 applicant submits that joinder should be limited to, “permitting Mr Stewart to advance the case that he is a descendant of Nellie… and on that basis alone, is entitled to be recognised as a native title holder”. The State submits that any condition should allow Mr Stewart, “to make submissions about the nature of Nellie’s rights and everything pertaining to Nellie”, including, if he wishes, to contend that Nellie is not a Wakka Wakka person. The joinder applicants submit that an appropriate condition would be that, “the joinder applicants would not raise any question or make any contention in the claim contrary to the findings of the ADR Report”.

49    The condition proposed by the joinder applicants is too narrow, and would likely raise issues as to what were the outcomes of the ADR process. The condition should define the matters that Mr Stewart may make submissions about, rather than what he may not make submissions about. The key issue that Mr Stewart is concerned with is the composition of the claim group. There remains an issue as to whether Mr Stewart is a member of the claim group, since he claims his connection to the Part B area under the traditional laws and customs of the Wulli Wulli People. I consider that Mr Stewart should be permitted to plead, call evidence and make submissions about whether he, as a descendant of Nellie who asserts that he holds rights and interests in the Part B area under the traditional laws and customs of people other than the Wakka Wakka People, is, or ought to be, a member of the claim group

50    Mr Stewart also contends that Nellie is not a Wakka Wakka ancestor. It is necessary to examine the findings of the ADR Report upon this issue. The authors of the report found that they were not in a position to conclude that the Part B area was part of Alec Barney’s traditional country. They went on to conclude that the ancestors of the Wulli Wulli #3 claim group did not hold traditional rights and interests in any part of the Part B area. The authors noted that there was a dispute as to whether Alec Barney was the father of Nellie and said they would not express a concluded view on the issue, but added that the data tended to support the view that they were not related. They concluded that Nellie held traditional rights and interests in the northern parts of Part B. I infer that the authors decided to not determine whether Alec Barney was Nellie’s father because, even if he was, she could not have acquired her rights and interests in Part B through him.

51    The ADR Report does not address which group of people Nellie belonged to. The ADR Report indicates that some of her descendants identify as Gooreng Gooreng, while other descendants identify as Wulli Wulli, and she is now claimed to be Wakka Wakka. Given that the authors of the ADR Report did not reach a conclusion as to Nellie’s identification, it would not be contrary to their findings to allow Mr Stewart to address that issue. Mr Stewart should be permitted to raise the question of whether Nellie was a Wakka Wakka person.

52    I will make orders that Mr Stewart be joined as a party to the proceedings under s 84(5) of the NTA, upon the condition that he may only plead, call evidence and make submissions about the following issues:

(a)    whether Nellie, mother of Elsie Fitzgerald/Edwards was a Wakka Wakka person;

(b)    whether, as a descendant of Nellie who asserts he holds rights and interests in Part B of the claim area under the traditional laws and customs of a group of people other than the Wakka Wakka People, he is, or ought to be, included as a member of the claim group.

53    Any variation of these conditions will obviously be a matter for the trial judge.

Wulli Wulli #3 applicant

54    The Wulli Wulli #3 applicant submits that they have an interest in the proceedings as a party to the ADR Agreement. Their interest is said to come within the broad conception of an interest for the purposes of s 84(5) of the NTA described in Byron. They contend that their interests may be affected by a determination of native title made other than in accordance with the ADR Report.

55    Clause 14(b) of the ADR Agreement includes a negative stipulation that the disputants refrain, “from taking any action that would hinder or prevent the contents of the ADR Report being carried into effect”. It is the enforcement of this provision that the Wulli Wulli #3 applicant is concerned with. The Wulli Wulli #3 applicant submits that this clause has not been complied with by the Wakka Wakka #4 applicant in three respects. First, the descendants of Nellie are not included in the claim group description contrary to the findings of the ADR Report. Second, the claim group description claims Nellie as a Wakka Wakka ancestor, when the ADR Report did not reach any conclusion as to Nellie’s identification. Third, the ADR Report found that only five of the claimed Wakka Wakka ancestors had interests in Part B, but those ancestors that were not found to have an interest in Part B remain in the claim group description for the whole of the claim area.

56    The Wakka Wakka #4 applicant submits that the interest of the Wulli Wulli #3 applicant is, at most, a contractual interest, which may not even be specifically enforceable. They submit that such an interest is not sufficient for the purposes of s 84(5) of the NTA. The State supports this submission, contending that a mere interest in enforcing the terms of an alternative dispute resolution agreement cannot be a sufficient interest to allow joinder.

57    The Wakka Wakka #4 applicant further submits that enforcing the ADR Agreement is only a small part of the Wulli Wulli #3 applicant’s motivation in seeking joinder, and that, in fact, the primary purpose for joinder, as demonstrated by the affidavits of members of the Wulli Wulli #3 applicant, is ensuring that the Wulli Wulli People are recognised as having native title in Part B. Given that the Wulli Wulli People were found by the ADR Report not to hold native title in the Part B overlap area, allowing the joinder of the Wulli Wulli #3 applicant would undermine the findings of the ADR Report, and the joinder would not be in the interests of justice.

58    There are three issues to consider: firstly, whether there is an arguable case of some threatened or actual breach of a term of the ADR Agreement by the Wakka Wakka #4 applicant; secondly, whether that would give the Wulli Wulli #3 applicant a sufficient interest for the purposes of s 84(5) of the NTA; and thirdly, whether the joinder would be in the interests of justice.

59    The first allegation of breach of the ADR Agreement is that the description of the Wakka Wakka #4 claim group may not accord with the ADR Report as it excludes Nellie’s descendants from membership of the claim group. I have concluded that even with the removal of the requirement to identify as Wakka Wakka, the claim group description is ambiguous, such that descendants of Nellie who identify as Wulli Wulli might not be members of the claim group. There is at least an arguable case that the claim group description is inconsistent with the ADR Report.

60    The second allegation of breach of the ADR Agreement is that the Wakka Wakka #4 claim includes Nellie as a Wakka Wakka ancestor, whereas the ADR Report did not reach any conclusion as to which group she belonged to. However, I cannot see that there is any inconsistency involved in the Wakka Wakka #4 claim group claiming Nellie as an ancestor in the absence of any finding to the contrary in the ADR Report.

61    The third allegation of breach of the ADR Agreement is that the way in which the claim is particularised is not in accordance with the ADR Report, as it does not differentiate between Part A and Part B of the claim area, such that the apical ancestors who were not found to have traditional rights and interests in Part B are stated to hold rights over the entire claim area, including Part B.

62    The ADR Report found that five of the named apical ancestors in the Wakka Wakka #4 claim had traditional rights and interests in Part B. The ADR Report concluded that:

There is sufficient connection shown in the apical ancestor (sic) of the Wakka Wakka #4 Applicants, supported by the early ethnology, to conclude, as Dr Palmer does that all the part B Area, excluding that attributed to Betsy, was held by their apical ancestors in accordance with their traditional rights and interests and to the exclusion of the Wulli Wulli #3 Applicants and their apical ancestors at the time of first European settlement.

63    There is no inconsistency between the finding of the ADR Report that five of the Wakka Wakka ancestors held traditional rights and interests in Part B with the claim that the native title claim group as a whole holds traditional rights and interests in respect of the whole claim area. The division of the claim area into Part A and Part B was a device for case management of the proceeding, given that there were competing claims by Indigenous parties in the Part B area, but not the Part A area. That division does not mean that there are two separate applications on foot, even though the orders presently provide for separate consideration of the two areas. There is a single application which asserts that under the traditional laws and customs of the native title claim group, the members of the claim group communally hold native title rights and interests in the whole of the claim area. The claim is one of communal ownership of rights and interests, which does not exclude the possibility of intramural allocations between particular family or clan groups or other sub-sets of the community: cf Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 at [79]–[82]. Ultimately, the native title application will be determined upon the evidence adduced as to the content of the traditional laws and customs of the claim group. The finding of the ADR Report that five of the Wakka Wakka ancestors held traditional rights and interests in Part B is not inconsistent with the form of the Wakka Wakka #4 claim.

64    The only threatened departure from the ADR Report is that the description of the Wakka Wakka #4 claim group may exclude Nellie’s descendants from membership of the claim group. It is unnecessary to consider whether the Wulli Wulli #3 applicant’s interest in enforcing the terms of an ADR Agreement is sufficient for the purposes of s 84(5) of the NTA. That is because I have reached the conclusion that even if it is sufficient, the interests of justice would not support the joinder of the Wulli Wulli #3 applicant.

65    If the Wulli Wulli #3 applicant were permitted to join the proceeding, their involvement would be limited to the issue of whether any descendants of Nellie who assert that they hold rights and interests in the claim area under the traditional laws and customs of a group other than the Wakka Wakka People, are, or ought to be, included within the claim group description. However, I have already determined that Mr Stewart will be permitted, in effect, to agitate this issue. It is unnecessary for the Wulli Wulli #3 applicant to also be joined for the purpose of arguing the same issue. As Mr Stewart has the more direct interest in the issue, it is appropriate that he should have its carriage.

66    The Wulli Willi #3 applicant would not be permitted to agitate the issue of whether Nellie was a Wulli Wulli person. The basis for such an argument would be that Alec Barney was Wulli Wulli and he was the father of Nellie. However, the ADR Report concluded that Alec Barney did not hold rights and interests in Part B, so even if he was her father, any rights and interests held by Nellie in Part B could only have been acquired through another line of descent. The Wulli Wulli #3 applicant did not point to any other connection through which Nellie might have been Wulli Wulli. It would be inconsistent with the ADR Agreement to allow the Wulli Wulli #3 applicant to make an argument that Nellie acquired rights and interests in Part B through Alec Barney. While Mr Stewart will be permitted to agitate the issue of whether Nellie was Wakka Wakka, he will be permitted to do so as a descendant of Nellie, rather than because of any threatened breach of the ADR Agreement.

67    I do not consider that it would be in the interests of justice for the Wulli Wulli #3 applicant to be joined. I will order that the application for joinder of the Wulli Wulli #3 applicant be dismissed.

Associate:    

Dated:    25 May 2020

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