Federal Court of Australia

Lewis on behalf of the Warrabinga-Wiradjuri People #7 v Attorney General of New South Wales (No 2) [2021] FCA 1269

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 12 August 2021 be dismissed.

2.    The interlocutory application filed on 23 August 2021 be upheld, with the consequence that Mr John Thomas Riley and Mr Wayne Alfred Carr be entitled to participate in the further mediation authorised by the Court’s orders dated 16 February 2021.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    Two interlocutory applications require determination. The first, filed on 12 August 2021, seeks to have removed as a respondent in the proceeding Mr Bradley Bliss (the tenth respondent). The substantive proceeding relates to an application for a native title determination filed on behalf of the Warrabinga-Wiradjuri People under s 61 of the Native Title Act 1993 (Cth). Mr Bliss is a director and authorised representative of Wellington Valley Wiradjuri Aboriginal Corporation (WVWAC), which is the fifty-first respondent in the proceeding. Mr Bliss’ removal is sought on the basis that it is claimed that he does not have and never has had any native title interests which could be affected by a determination of native title in these proceedings. Significantly, no application has been made to remove WVWAC as a respondent in the proceeding notwithstanding Mr Bliss’ close involvement with that body, as noted above. The first interlocutory application was filed by Mr Wayne Alfred Carr (with the support of Mr John Thomas Riley), who are also respondents in the proceedings and represent the Ibbai Waggan Wiradjuri People.

2    The second interlocutory application was filed on 23 August 2021 by Mr Riley. He seeks an order to have included in ongoing mediation proceedings both himself and Mr Carr as representatives of the Ibbai Waggan Wiradjuri People.

3    Both Mr Riley and Mr Carr were active participants in previous mediations but they chose to withdraw from the mediation process prior to an order for further mediation made on 16 February 2021. Their second interlocutory application effectively seeks a variation to that order so as to include them in the list of Indigenous respondents set out in the Schedule to those orders.

4    It is convenient to address each of the interlocutory applications in turn, noting at the outset that Mr Riley and Mr Carr represented themselves and Mr Bliss also represented himself.

First interlocutory application

5    I will summarise the statutory scheme and relevant caselaw before outlining the evidence and submissions concerning the first interlocutory application.

(a) Statutory scheme summarised

6    The relevant statutory provisions for the removal of respondents under the Native Title Act are sub-sections 84(8) and (9):

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.

(b) Summary of caselaw on sub-sections 84(8) and (9)

Interaction of s 84(8) and (9)

7    Numerous decisions have affirmed that the power in s 84(8) is not confined to the circumstances listed in s 84(9): Starkey v State of South Australia [2011] FCA 456; 193 FCR 450 at [40] per Mansfield J; Butterworth on behalf of the Wiri Core Country Claim v State of Queensland [2010] FCA 325; 184 FCR 397. As Logan J stated in Butterworth at [39]:

It seems to me that the power given under s 84(8) is not constrained by the circumstances referred to in s 84(9). Section 84(9) to me provides particular circumstances where Parliament contemplates dismissal will be considered but that subsection is not exhaustive of the circumstances where the dismissal power can be exercised. As I have said, in this particular case, it seems to me on the evidence that the applicant is doing what the Native Title Act contemplates, which is representing all of the members of the native title claim group, including Mr Johnson and those others also descended from Mary Johnson. The Native Title Act to me also contemplates that there will be occasions when it will be necessary for an applicant to consult with a native title claim group. Consult does not equate with “be dictated to by a member of”. A member of a native title claim group, where a need for consultation arises, is entitled to be given an opportunity to be heard, nothing more and nothing less than that.

8    In Miller v South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 at [103], White J noted in that case he did not see any basis for which r 9.08 of the Federal Court Rules 2011 (Cth) (which allows for the removal of parties by Court order) would warrant removal where s 84(8) did not.

Removal under s 84(8)

9    There is a helpful summary of the relevant principles relating to s 84(8) and (9) in Alvoen (on behalf of Wakaman People #3) v State of Queensland [2019] FCA 1469 at [28] per Reeves J, who, summarising Miller, stated:

(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 [Native Title Act]” (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 [Native Title Act] (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]).

10    Ultimately, whether or not the Court will order a person to be removed as a respondent will turn on an assessment of the interests of justice in the particular case, which will normally involve the weighing of competing considerations. This is illustrated by North ACJ’s judgment in TR (Dec’d) on behalf of the Kariyarra – Pipingarra People) v Western Australia [2016] FCA 1158. It is well to set out [32] to [35] and [38] of his Honour’s reasons:

32    Section 84(8) of the Act provides that:

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

33    The power to order that a person cease to be a party to the proceedings is a broad discretionary power. It must, however, be exercised judicially. In the end, the touchstone for the exercise of the power is a decision about the interests of justice.

34    In the exercise of the power a significant factor is the nature of the interest claimed by the party to be removed.

35    The interest must be capable of clear definition, not be indirect or lacking in substance. It must be of such a nature that it may be affected in a demonstrable way by determination of native title: Byron Environment Centre Incorporated v The Arakwal People [1997] FCA 797; 78 FCR 1 per Black CJ at 7G, Lockhart J at 19C and Merkel J at 42D-E.

…

38    On the other hand, it is well accepted that a person claiming a competing native title interest which may be affected by the making of a determination in the application has an interest which justifies that person becoming or remaining a respondent to that application: Munn at [8]; Davis-Hurst (On behalf of the Traditional Owners of Saltwater) v Minister for Land and Water Conservation (NSW) [2003] FCA 541, 198 ALR 315 at [27] (Davis-Hurst); Kokatha Native Title Claim v South Australia [2005] FCA 836, 143 FCR 544 at [24]; Worimi Local Aboriginal Land Council v Minister for Lands (NSW) [2007] FCA 1357, 164 FCR 181 at [16]-[17] (Worimi); Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [18]-[19]; and Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [18]. Such a person is entitled to seek to protect their interest from erosion, dilution, or discount. The applicant and the State accept that principle but argue that the Indigenous respondents have not made out an arguable case of a competing native title claim.

11    In determining whether the Indigenous respondents should be removed in that proceeding, North ACJ referred to conflicting anthropological reports which identified apical ancestors as well as traditional law and custom governing group membership. His Honour also weighed up competing considerations on the issue whether the Indigenous respondents should be removed, as sought by the applicant in that proceeding. Acting Chief Justice North said that although it was troubling and puzzling that the Indigenous respondents had not made their own competing s 61 native title application, it was plain that their claimed interest was one which would be affected in a demonstrable way if the applicant were to obtain a determination of native title as sought by it. His Honour’s essential reasons for rejecting the interlocutory application to have the Indigenous respondents removed is set out at [50]:

In the end, however, there are several factors which outweigh those reservations and which militate in favour of permitting the Indigenous respondents to remain as respondents. A determination of native title is an order in rem. It binds the whole world in relation to the rights and interests in the country concerned. The Indigenous respondents have raised an arguable case in support of a competing native title. There is apparent divergence in the views of the expert anthropologists on the issues. The defensive assertion of native title rights and interests by individuals to combat an application for native title can “lead to a more informed decision…as to whether the native title rights and interests should be granted as expressed in that application”: Kokatha at [24] per Mansfield J; see also Worimi at [30]. The only route to an authoritative resolution is by judicial determination. The Indigenous respondents have asserted their claimed rights and interests from the inception of the proceeding and have maintained the position in opposing the amendment application and in opposing the present application. They have not been responsible for any delay.

12    Recently, in Bates on behalf of the Malyangapa Part B Claim Group v Attorney-General of New South Wales [2021] FCA 1198 at [85] and [88], Murphy J emphasised the need for caution in summarily dismissing an application for native title determination where there are real questions of fact and law which preferably should be decided at trial and not at an interlocutory stage. His Honour observed at [88] that where there are “aspects of the evidence which are contestable or which have an ambivalent character, there are reasonable prospects of success within the meaning of s 31A and the matter should proceed to hearing”. Although those observations were directed to s 31A of the Federal Court of Australia Act 1976 (Cth), which is not relied upon in the present proceeding, I believe that they are apposite in circumstances where the removal of Mr Bliss as a respondent would terminate his status as a party in his own right and confine him to his role representing WVWAC.

Section 84(9)(a)

13    In construing s 84(9)(a), Logan J held in Butterworth at [12] that the conjunctive “and” between (i) and (ii) meant that both provisions have be to satisfied before the Court could make an order under that provision.

14    Given the above, s 84(9)(a) has no application to the first interlocutory application, as Mr Bliss’ alleged interest does not relate to public access in the native title claim area.

Section 84(9)(b)

15    In Cheinmora v Western Australia [2013] FCA 727, Gilmour J at [8] noted the accepted position that the term “interests” for the purposes of s 84(9) carries the same meaning as “interests” for the purpose of s 84(5).

16    Some of the relevant principles were identified by me in Lewis on behalf of the Warrabinga-Wiradjuri #6 v Attorney-General of NSW [2018] FCA 481 at [17]:

Drawing also on cases such as Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 (Arakwal) and Walker v Western Australia [2002] FCA 869; 191 ALR 654 per French J, Wakka People #2 v Queensland [2005] FCA 1578 (Wakka People #2) per Kiefel J and Jacob v Western Australia [2014] FCA 1106 per McKerracher J, the relevant principles which guide the exercise of the Court’s discretion include:

•    an interest sufficient to give a person the right to become a party to an application needs to take into account the fact that a party can in effect veto the process of mediation and conciliation which the [Native Title Act] favours, which suggests that the relevant interest must not be indirect, remote or lacking substance;

•    the nature and content of the right to become a party also suggests that the interests must be capable of clear definition and be of such a character that they may be affected in a demonstrable way by a determination of native title to which the application relates;

•    the interest need not be proprietary or even legal or equitable in nature, however, the interest must be “genuine and not indirect, remote or lacking in substance”;

•    a person who has “a special, well-established non-proprietary connection with land or waters which is of significance to that person” may have a sufficient interest;

•    discretionary considerations may be relevant, including the following factors identified by Gilmour J in Barunga v Western Australia (No 2) [2011] FCA 755:

(i)    because a determination of native title is a proceeding in rem and binds non-parties, 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;

(ii)    if joinder means that there will be consideration of rights and interests of the joined party which would lead to a more accurate definition of the native title rights and interests claimed, this is a factor in favour of joinder;

(iii)    the party joined is put in the position to protect native title rights and interests which they claim to hold;

(iv)    whether the interest asserted by the third party can be protected by some other mechanism;

(v)    whether the applicant for native title determination would be prejudiced if the third party is joined as a party; and

(vi)    the history of the proceedings, which includes the effects of delay and the resource implications of joinder for all parties to the proceeding (see also Allen (on behalf of the Nyamal People # 1) v Western Australia [2018] FCA 320 at [56] per Barker J).

(c) Summary of evidence and submissions in support of the first interlocutory application

17    The interlocutory application seeking Mr Bliss’ removal was supported by four affidavits, namely an affidavit by each of Mr Carr, Mr Riley, Mrs Violet Carr and Mr Stephen Parkes. Mr Parkes’ affidavit annexes various genealogical material with respect to Mr Bliss’ connection to the Wiradjuri People. The affidavits may be summarised as follows.

18    Mr Riley gave evidence that as an Ibbai Waggan Wiradjuri Riley descendant, he had obligations which were specific to Riley family issues. He gave evidence of his contact with Mr Bliss and his involvement in Riley family meetings in which concerns were discussed as to whether Mr Bliss was a Wiradjuri person and of the Ibbai Waggan Wiradjuri society. Mr Riley said that his contact with Mr Bliss has led him to believe that Mr Bliss’ claim to be a Wiradjuri man descended from an ancestor of the Stewart family to be “spurious”.

19    Mr Carr gave evidence that he was an Ibbai Waggan Wiradjuri descendant of apical ancestor John Stewart (born 1820) and other apical ancestors. He said that he had had contact with Mr Bliss and he acknowledged that community members had accepted Mr Bliss in good faith “although his previous connections were unclear and never stated”. He claimed that Mr Bliss had provided no evidence to support his claim of a connection to the Wiradjuri Stewart family.

20    Mrs Violet Carr gave evidence of her apical ancestors. She described herself, being 88 years old, as one of the oldest of the Wiradjuri Elders with a continuous connection to tribal Wiradjuri lands and the people of those lands. She described her extensive roles in various Wiradjuri community organisations over many decades. Mrs Carr described Mr Bliss’ connections with Wiradjuri as “unclear and never stated”. Mrs Carr then noted Mr Bliss’ claim that his Wiradjuri cultural connections were as a descendant of the Stewart family, a claim which she disputed. She said that community concerns resulted in a public meeting in Wellington in mid-February 2020, which included Stewart representatives. She said she told Mr Bliss that she did not know him within the Stewart kinship group, which resulted in the meeting erupting into argument and the meeting had to be prematurely terminated. She said that the issue had caused stress and disharmony. She said that she had instructed her son, Mr Wayne Carr to act on her behalf in ensuring that her “cultural obligations, responsibilities and decisions are carried out in accordance with [her] wishes and in accordance with Wiradjuri lore and custom”.

21    Mr Parkes described himself as a Wiradjuri Elder. He said that Mr Bliss had been nominated as a potential applicant nominee at an Ibbai Waggan Wiradjuri authorisation meeting held at Gulgong in late October 2018 and that he had carried out enquiries to ascertain Mr Bliss’ Wiradjuri connections. He described communications he had had with Mr Bliss regarding his enquiries and how he had asked Mr Bliss to withdraw his acceptance as a potential applicant nominee. He said that Mr Bliss withdrew his nomination in an email dated 10 December 2018. He said that this withdrawal required a second authorisation meeting, which was held on 30 January 2019 in Gulgong. Mr Parkes said that Mrs Carr had frequently challenged Mr Bliss’ Wiradjuri connections and that, specifically, she challenged Mr Bliss’ claim that he was descended from a “Willy” or “William” Stewart, whom she has asserted does not exist.

22    Mr Parkes opined that there was no record of Alexander Stewart, a Wiradjuri apical ancestor, having a brother called William Stewart as claimed by Mr Bliss. He concluded that Mr Bliss’ genealogy does not demonstrate that he has any Aboriginal ancestry and therefore has no native title interests in the claim area. Mr Parkes annexed to his affidavit the results of his genealogical inquiries concerning the descendants of Jurunyah.

23    I will set out, without alteration, extracts from the outline of submissions filed by Mr Riley and Mr Carr:

It is culturally appropriate within Wiradjuri lore that family business is an internal matter. In short, Mr. Bliss is claiming his Wiradjuri connections through the Stewart family a Wiradjuri apical ancestor. As detailed in Affidavits, we have uncovered discrepancies within the Bliss claimed genealogies. As the connection claims are Stewart business the interlocutory is lodged by Steward family represented by Mr. Wayne Carr as respondent and at requests by his mother, the most senior Stewart Elder Mrs. Violet Carr. As part of Wiradjuri community, other Ibbai Waggan Wiradjuri members may assist upon request. In support, Mr. Stephen Parkes has completed investigations and documented certification of Mr. Bliss's correct genealogy and connection discussions direct with him.

As documented, Ibbai Waggan representatives had withdrawn from the mediation process as we are obliged to protect our Wiradjuri cultural knowledge. The mediation had developed to a point where our knowledge, apical information and genealogies were exposed within a Warrabinga claim. We did however agree to meet with Miss Catherine Wohlan to assist her in directing where extensive Wiradjuri information could be accessed and researched. We have no insight into the basis of her investigations for her final reports. What does concern us is the talk of a revised claim.

Throughout we have resisted Warrabinga's attempts to draw Ibbai Waggan information as it is their claim, not ours. It is their responsibility to prove their claims. We have our cultural, kinship connections and further evidence to challenge future Warrabinga connection reports. We may not be legally astute as a Native Title legal team but we are committed to protecting what is rightfully Wiradjuri and look to the Federal Court to protect our proprietary rights, exercised by our ancestors.

The improper inclusion of Mr. Bliss as a Wiradjuri person with false claims of holding Wiradjuri knowledge and providing submissions as a contributor to anthropological reports may seriously impact on Native Title proposals from Warrabinga. We feel his personal motives may disadvantage our First Nation Wiradjuri People and is not in Ibbai Waggan family representatives or the public interest.

24    Mr Carr provided written submissions dated 11 October 2021 in response to an affidavit of Mr Bliss’ affirmed on 27 September 2021. The submissions were in part purported evidence and in other parts submissions.

25    In brief, Mr Riley challenged Mr Bliss’ evidence that there is an inference that Jurunyah, Willy and Catherine “Kate” are all Stewart descendants. He submitted that Mr Bliss had not provided supporting admissible evidence for this claim and that it was inconsistent with documents provided by Mr Parkes in his affidavit. Mr Riley submitted that the competing evidence demonstrated that the Bliss family were actually descendants of Samuel Lindsay, a native born around 1814 in the West Indies. He added that this explained “the dark skin appearance carried forward through descendants”.

26    Mr Riley also contended that there was no evidence to establish that Jurunyah was a Stewart and he questioned the contents of Annexure BB2 to Mr Bliss’ affidavit on this topic.

27    In response to Mr Bliss’ DNA test, which indicated that there was a one percent estimate of Indigenous ethnicity for him, Mr Riley contended that such a small estimate “does not provide comfort, conclusive evidenced (sic) or confidence to confirm Wiradjuri native title interest”.

28    Mr Riley was also critical of other evidence given by Mr Bliss, including a criticism that [9] of Mr Bliss’ affidavit introduced “a new attempt to complicate the apical genealogy”. Mr Riley was also critical of Annexure BB6 to Mr Bliss’ affidavit. He contended that the video provided there “has misrepresented the full details of the Marks family history”. It was also contended that the video, which included recollections of Elder Joyce Williams (a Riley Elder aged 94) had been used without Mrs Williams’ permission. Mr Riley said when he told Mrs Williams of Mr Bliss’ use of the video, both she and her grandson (Mr Darren Martin) were distressed. Mr Riley annexed to his submissions signed but unsworn statements by both Mrs Williams and her grandson. In her statement Mrs Williams said that, since participating in the video, she had received further connection advice regarding the Marks family, which introduced additional questions to her original understanding. She also said that her approval had not been sought to use the information given by her in the video for a legal process and she objected to that use. She also added additional information regarding the Marks family living not at the “Blacks Camp” which was restricted to Aboriginal people, but rather lived “all over the place” and would sometimes pitch their tent on the Town Common at Wellington.

29    Neither Mrs Williams nor her grandson could be cross-examined on their statements because, as mentioned, their written statements were unsworn and provided as annexures to Mr Riley’s submissions in response.

30    In sum, Mr Riley contended that Mr Bliss “has duped the Ibbai Wagga Wiradjuri people using false claims of a Stewart apical connection”.

(d) Mr Bliss’ evidence and some relevant background matters summarised

31    Mr Bliss was joined as a respondent in these proceedings after filing a ‘Form 5 – Notice of Intention to become a Party’ on 3 May 2018. That form claimed that:

I am a Wiradjuri Person and this claim will impact on my Native Title interests and rights. These people do not hold exclusive rights to this country. They have broken our Traditional Laws and Customs under which they assert their Native Title Rights.

32    WVWAC also filed a Form 5 in similar terms.

33    On 6 June 2018, Mr Bliss and WVWAC were joined as respondent by orders of Registrar Stride. Evidently, Mr Bliss was joined under s 84(3) of the Native Title Act, which provides:

(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

…

34    Mr Bliss has been an active participant in the proceedings, including in various mediations as ordered by the Court.

35    Mr Bliss affirmed an affidavit dated 27 September 2021. It was admitted into evidence while noting that significant parts of the affidavit were in the form of submissions, rather than evidence. In brief, Mr Bliss claimed that the Ibbia Waggan Wiradjuri People was a “very modern construct” of Mr Parkes and Messrs Riley and Carr from about 2015. He said that in August 2009 those three men contacted him seeking his involvement as a Stewart to join the Gallanggabang Aboriginal Corporation and that he was encouraged to join the WVWAC to help strengthen a native title claim in which those three gentlemen were joined. He annexed a copy of an affidavit dated 2 December 2011 in support of that claim.

36    Mr Bliss said that he subsequently withdrew his support from the Ibbai Waggan Wiradjuri People native title authorisation and that each of the affidavits filed in support of his removal from the current proceeding was part of broader actions by those deponents to have him removed from positions he held within the Aboriginal and wider non-Aboriginal community. He said that he had had to present his ancestral connections to various bodies on 11 occasions. He said that on each such occasion his Aboriginal descent from Jurunyah had been affirmed. He annexed various minutes in support of that claim.

37    Mr Bliss also contended that Mr Carr and Mrs Violet Carr were confused regarding their ancestral links to the Stewart family and those of Mr Bliss. He contended that the two branches of the Stewart family were not apically related.

38    Mr Bliss claimed that Mr Carr’s apical links to Alexander Stewart indicated that Mr Carr had no connection to the claim area in the present proceeding and that he ought therefore to be removed as a respondent party. No formal interlocutory application was made in this respect.

39    Mr Bliss also objected to Mr Riley and Mr Parkes using information supplied by Mr Bliss. He opposed their use of names and details of Mr Bliss’ deceased Aboriginal ancestors and he also contended that their provision of details of living people was contrary to section 13 of the Privacy Act 1998 (Cth) and also in breach of various provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

40    The s 61 applicant, the Attorney-General of NSW and NTSCORP neither consented to nor opposed the first interlocutory application.

Consideration and determination of the first interlocutory application

41    There are two key questions:

(a)    Does Mr Bliss have a relevant “interest” in the Warrabinga-Wiradjuri proceeding?; and

(b)    In any event, is it in “the interests of justice” for Mr Bliss to remain as a respondent in these proceedings?

42    I am satisfied, at this interlocutory stage of the proceeding, that prima facie Mr Bliss does have a relevant interest in the proceeding. He is not a group member but was joined as a respondent party in order to protect what he asserts to be a competing personal native title right or interest. There is sufficient supporting material provided by Mr Bliss to indicate that he has an arguable case that as a Wiradjuri man he has native title rights and interests in the claim area. It is both inappropriate and unnecessary at this stage of the proceeding to make a final determination regarding his claim to be a Wiradjuri descendant, acknowledging as I do that that claim is disputed by Mr Riley and Mr Carr, including by their reliance on the written statement signed by Mrs Williams. As I have emphasised, however, neither Mrs Williams nor Mr Martin provided affidavits upon which they could be cross-examined

43    I consider that Mr Bliss has provided sufficient material to demonstrate that his claims are at least arguable. As North ACJ remarked in TR, it is well settled that a person claiming a competing native title interest which may be affected by the making of a s 61 determination has an interest which justifies that person becoming or remaining a respondent. Such a person is able, by their participation in the proceeding, to seek to protect their native title rights and interests from erosion, dilution or discount. As I have emphasised above, where there are real questions of law and/or fact, it is preferable that they be resolved at trial and not at interlocutory stage.

44    I also respectfully agree with his Honour’s observations in TR at [50], which are set out at [11] above. Those observations are relevant to the question whether it is in the interests of justice that Mr Bliss remain as a respondent. Appropriate weight must be given to the fact that a determination of native title is an order in rem.

45    I also take into account that Mr Bliss has consistently asserted native title rights and interests in the claim area from his early involvement and active role in the proceedings (including in the mediations).

46    I do not consider that it has been demonstrated that he has been responsible for any delay in progressing the matter. Indeed, his active participation in the four mediations suggests that he is willing in principle to seek to reach agreement on relevant matters.

47    The following are features which distinguish this case from other authorities as discussed above in which an Indigenous respondent has been removed:

(a)    In some such cases, the removal of Indigenous respondents has been ordered where they have taken no active role in the proceeding or were found to be “delaying” the progress of the proceeding towards a consent determination. Given Mr Bliss’ participation in the mediation and the current status of the Warrabinga-Wiradjuri proceedings, neither of these apply to the current proceedings.

(b)    In most cases, the removal of a respondent has been sought by the applicant, rather than another Indigenous respondent questioning the veracity of another Indigenous respondent’s claimed interest. The applicant has not sought the removal of Mr Bliss.

(c)    Another circumstance in which removal of a respondent has been sought is where that respondent is classed as a “dissentient” member of the claim group. In this case, neither Mr Bliss nor WVWAC is a group member of the Warrabinga-Wiradjuri native title claim group. Indeed, neither is Mr Riley nor Mr Carr.

48    Finally, there is another feature of this case. Significantly, no application has been made to remove WVWAC as a respondent, who has been a party to all of the court-ordered mediations (noting also that WVWAC opposed both the first and second interlocutory applications). Accordingly, even if Mr Bliss were removed as a respondent, he would presumably continue to play an active role in the proceeding given his close association with WVWAC whom he represents and which also claims to have a native title interest. That would be a strange outcome and it further highlights why it is not in the interests of justice to remove Mr Bliss as a respondent.

Conclusion on the first interlocutory application

49    For these reasons, the first interlocutory application should be dismissed. There will be no order as to costs.

Second interlocutory application

50    As noted, Mr Riley and Mr Carr seek to be included in the further mediation which is currently on foot. It is desirable to set out some relevant history regarding the mediations which have and are being conducted in the proceeding. This history is drawn from a report dated 5 October 2021 by Registrar Grant, which report was provided to the parties and to the Court (Ex 1).

51    The first mediation referral was made on 14 December 2018. It involved the applicant, NTSCORP and the following Indigenous respondents: Mr Carr, Mr Riley, Mr Bliss on his own behalf and on behalf of the WVWAC and Mr Keith Kemp. The first mediation referral did not result in any agreement being reached.

52    The second mediation referral was made on 20 June 2019. The second mediation was conducted with reference to two blocs of mediation parties. The first bloc comprised the applicant, NTSCORP and the following Indigenous respondents: Mr Carr, Mr Riley, Mr Bliss on his own behalf and on behalf of the WVWAC. The second bloc comprised the applicant, NTSCORP and the Indigenous respondent Mr Trevor Robinson. Registrar Grant provided a mediation report in respect of the second mediation referral on 21 November 2019, noting that in bloc 1 agreement had been reached for a detailed process involving the joint briefing of an anthropologist to prepare a report in respect of the country claim.

53    The third mediation referral was made on 11 December 2019 and resulted in mediations being conducted on four separate occasions from mid-2020 to mid-November 2020. The parties to the mediation comprised the applicant, NTSCORP and the following Indigenous respondents: Mr Carr, Mr Riley, Mr Bliss on his own behalf and on behalf of the WVWAC and Mr Kemp. In a progress report to the Court filed on 5 June 2020, the applicant provided details regarding the proposal jointly to engage an anthropologist to provide a report for the benefit of the mediation parties which addressed a series of questions aimed at identifying the landholding group or groups over the claim area. The third mediation was unsuccessful. In a progress report dated 23 November 2020, the applicant notified the Court that on 10 November 2020, solicitors then acting for Mr Carr and Mr Riley announced that their clients had decided to withdraw from the mediation.

54    The applicant’s proposal to engage an anthropologist was supported by the active parties, however, Mr Carr and Mr Riley opposed the proposal. The applicant indicated that the anthropological report might lead to the applicant seeking to discontinue the proceedings or give consideration to the involvement of other Indigenous respondents in further mediation.

55    On 16 February 2021, the Court made orders referring the proceeding to a further mediation, with the Indigenous parties identified as Mr Bliss, the WVWAC and NTSCORP.

56    Registrar Grant stated in his report (Ex 1) that, as at 5 October 2021, no further active mediation is scheduled in connection with the fourth mediation referral.

57    The s 61 applicant did not oppose the second interlocutory application. Both the Attorney-General of NSW and NTSCORP said that they neither consented to nor opposed the second interlocutory application. Both Mr Bliss and WVWAC opposed the second interlocutory application. In brief, the basis for that opposition was their contention that permitting Mr Riley and Mr Carr to be involved in the further mediation would be inconsistent with s 86B(5) of the Native Title Act. Under that provision, an order for mediation can only be made if the Court considers that the parties will be able to reach agreement on, or on facts relevant to, any of the matters set out in ss 86A(1) or (2). The latest order for mediation was made by the Court on 16 February 2021. The further mediation related to the applicant and Indigenous respondents listed in the Schedule to those orders. The specified respondents did not include Mr Riley or Mr Carr. That is primarily because they had withdrawn their participation in earlier mediations and did not, as at 16 February 2021, seek to be involved in the further mediation. In addition, Mr Bliss questioned Mr Carr’s claim to possess a native title interest in the substantive proceeding because Mr Bliss questioned Mr Carr’s connection with the claim area.

58    Mr Riley and Mr Carr provided an outline of written submissions dated 27 September 2021 in support of the second interlocutory application.

59    I shall explain why I have concluded that the second interlocutory application should be upheld. First, although Mr Riley and Mr Carr voluntarily withdrew from previous mediations, I accept that they have ongoing concerns to protect Ibbai Wagga Wiradjuri cultural knowledge and obligations.

60    Secondly, I also accept their submission that, if they joined the further mediation, they could review the anthropological report by Ms Catherine Wohlan (Wohlan Report) (which had been prepared specifically for the purposes of the mediation) and provide general comment on it. They acknowledged that they had provided “limited kinship information on specific Wiradjuri knowledge” to assist in the preparation of that Report, but they did not know what specific use had been made of that information.

61    Thirdly, Mr Riley and Mr Carr expressed concerns that the undertaking given by NTSCORP regarding the confidential nature of the Wohlan Report was inadequate to protect their sensitive material. Whether or not that be the case, I consider that it is appropriate for them to be involved in a process which may take into account sensitive cultural information provided by them in respect of the Wohlan Report.

62    The essence of the concerns held by Mr Riley and Mr Carr is reflected in the following extract from their outline of submissions:

Of concern, without Ibbai Waggan insight of the contents of the Wohlan Report, it appears Warrabinga have mystically gained additional unidentified Wiradjuri apical knowledge they did not know at the time of initiating their original Native Title claims. Coincidentally, the new apical base is specific to the Warrabinga family membership connections and has resulted in a new consideration to amended or formulate a replacement application? Certainly, the new revelation and proposed new direction raises some concerns regarding the claimed accuracy and quality of Wiradjuri knowledge possessed by Warrabinga applicants.

63    Finally, I have noted Mr Bliss’ concerns in respect of Mr Carr’s claimed native title interests and, in particular, Mr Bliss’ submissions regarding Mr Carr’s ancestors and their connection with the claim area. As is the case with the first interlocutory application, these matters are strongly disputed and do not lend themselves to final resolution at this interlocutory stage of the proceeding.

64    For these reasons, I have concluded that Mr Riley and Mr Carr should be permitted to participate in the further mediation, assuming that that mediation proceeds.

65    The future conduct of the substantive matters will be reviewed at the NSW Native Title Callover listed for 10 December 2021.

Conclusion on the second interlocutory application

66    For these reasons, the second interlocutory application will be upheld. There will be no order as to costs.

Associate:

Dated:    20 October 2021

Schedule

No: NSD857/2017

Federal Court of Australia

District Registry: New South Wales

Division: General