Federal Court of Australia

Widjabul Wia-bal v Attorney General of New South Wales [2022] FCA 1187

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by Ms Cindy Roberts dated 24 August 2022 be dismissed.

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

REASONS FOR JUDGMENT

JAGOT J:

1.    THE INTERLOCUTORY APPLICATION

1    On 24 August 2022 Cindy Roberts, a member of the Native Title claim group represented by the applicant in this matter, applied to be joined as a party under s 84(5) of the Native Title Act 1993 (Cth) (the NTA).

2    Section 84(5) provides that:

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.

3    By s 253 of the NTA an interest, in relation to land or waters, means:

(a)    a legal or equitable estate or interest in the land or waters; or

(b)    any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(i)    the land or waters; or

(ii)    an estate or interest in the land or waters; or

(c)    a restriction on the use of the land or waters, whether or not annexed to other land or waters.

4    The effect of joining Ms Roberts as a party will be that if Ms Roberts does not then agree to an agreement otherwise negotiated between the existing parties under ss 87/87A of the NTA, the Court will not have power under those provisions, as applicable, to make an order in, or consistent with, the terms of the agreement including for the determination of native title in favour of the members of the native title claim group.

5    For reasons which will be explained it has been necessary to deal with the interlocutory application urgently. I have decided that the interlocutory application must be dismissed as it would be contrary to the interests of justice to join Ms Roberts as a party in all of the circumstances.

2.    BACKGROUND

2.1    Current claimant application

6    The applicant represents the Widjabul Wia-bal people.

7    The Native Title claimant application (NSD1213/2018) was filed on 24 June 2013 and subsequently amended (the 2018 date in this file number represents a change from a paper to an electronic file). The claim covers a large area of land and waters around Lismore in the north of New South Wales (NSW).

8    The claimant application records that:

The individuals who jointly comprise the Applicant are members of the native title claim group and were authorised to make the application and to deal with all matters arising in relation to it at a meeting of the Widjabul Wia-bal held on 11 and 12 June 2013 at Goonellabah.

The process of decision making complied with at the meeting of the Widjabul Wia-bal held on 11 and 12 June 2013 at Goonellabah in authorising the Applicant to make the application and to deal with matters arising in relation to it was a process of decision making agreed to and adopted by the native title claim group. The process of decision making is one whereby:

 1.    There will be a general discussion of the issues;

2.    The decision to be made will be put in the form of a clearly worded written motion;

 3.    The motion will be read out to the meeting;

4.    The motion must be moved and seconded by members of the claim group before it is decided on;

 5.    The decision will then be made by the group by a show of hands;

6.    A decision of the majority in relation to the motion shall be a decision of the meeting.

The meeting on 11 and 12 June 2013 at Goonellabah followed a process of consultation by members of the Widjabul Wia-bal native title claim group amongst themselves and with NTSCORP Limited. The consultation process undertaken by NTSCORP Limited included notification to members of the Widjabul Wia-bal by correspondence, facsimile and telephone.

Public notice was also given through advertisements placed by NTSCORP Limited in the Northern Star and the Koori Mail about the meeting convened by NTSCORP Limited at Goonellabah on 11 and 12 June 2013.

9    The claimant application describes the Native Title claim group as follows:

The Widjabul Wia-bal are the native title claim group on whose behalf the Applicant makes this application. The native title claim group comprises all the descendants of the following apical ancestors:

Bob de Bobbin (also known as Bob Deruhbin), died 1912 at Lismore

Topsy Brown (also known as Topsy Larken), born 1849, died 1919 at Dunoon

Johnny Bob (also known as Bob Roberts), born circa 1820

William ‘Billy’ King, born 1878 at Lismore

George Williams, born 1870

Kitty Barry, born 1841, died 1911 at Blakebrook

John ‘Jack’ Kapeen (also known as John ‘Jack’ Capeen), born circa 1860.

10    The claimant application was accompanied by affidavits affirmed or sworn in June 2013 confirming authorisation of the members of the applicant and that the process of decision making complied with at the meeting of the Widjabul Wia-bal held on 11 and 12 June 2013 at Goonellabah in authorising the applicant to make the application and to deal with matters arising in relation to it was a process of decision making agreed to and adopted by the Native Title claim group as described in the claimant application.

11    There is a long history leading up to the making of the current claimant application.

2.2    Earlier events

12    The following summary is based on the chronology I requested the applicant to file, cross-referenced to the extensive evidence in respect of this interlocutory application for joinder.

13    In November 2001 the Widjabul Aboriginal People Native Title determination application (NSD6019/2001) was filed. It was accepted for registration and notified. Between July 2003 and March 2012 there was ongoing mediation to resolve intra-Indigenous disputes between the applicant, 13 Indigenous respondents who had been joined to the proceeding, and NTSCORP Limited (the representative body under the NTA for NSW). By November 2012 the claim group and the Indigenous respondents unanimously decided that they wanted to discontinue this claimant application and proceed together with one claim. That is, there were nine years of negotiations to reach the position agreed by November 2012.

14    On 10 December 2012 I granted the applicant leave to discontinue NSD6019/2001 simultaneously with the filing of a new application as agreed at the meeting in November 2012.

15    By June 2013, NTSCORP had facilitated another authorisation meeting of the claim group. The meeting was held at Goonellabah on 11–12 June 2013. Simon Correy, Senior Research Anthropologist of NTSCORP, presented his research on the area subject to the proposed Widjabul Wia-bal claim area. At that meeting the group members passed resolutions to the following effect:

(a)    Authorised a decision-making method for the Widjabul Wia-bal native title claim as follows:

  1)    There will be a discussion of the issues;

2)    The decision to be made will be put in the form of a clearly worded motion;

  3)    The motion will be read out to the meeting;

4)    The motion must be moved and seconded by members of the claim group before it is decided on;

  5)    The decision will then be made by the group by a show of hands;

6)    A decision of the majority in relation to the motion shall be a decision of the meeting.

(b)    Authorised NTSCORP and the legal practice funded by NTSCORP to file a native title determination application on behalf of Widjabul Wia-bal.

(c)    Authorised the name ‘Widjabul Wia-bal’ for use in the native title determination application and as the name of the claim group,

 (d)    Authorised a Widjabul Wia-bal claim group description as follows:

The native title claim group comprises all of the descendants of the following apical ancestors:

•    Bob de Bobbin (also known as Bob Deruhbin), died 1912 at Lismore;

•    Topsy Brown (also known as Topsy Larken), born 1849, died 1919 at Dunoon;

•    Johnny Bob (also known as Bob Roberts), born circa 1820;

•    William ‘Billy’ King, born 1878 at Lismore;

•    George Williams, born 1870;

•    Kitty Barry, born 1841, died 1911 at Blakebrook; and

•    John ‘Jack’ Kapeen (also known as John ‘Jack’ Capeen), born circa 1860.

(e)    Unanimously authorised a group of 10 people to jointly comprise the Widjabul Wia-bal Applicant, being:

16    On 24 June 2013, a notice of discontinuance of NSD6019/2001 was filed.

17    As noted, on 24 June 2013, the current claimant application was filed. It was subsequently accepted for registration. NTSCORP sent a letter to all claim group members on 4 September 2013 that contained a copy of the claim group description as authorised at the meeting on 11 and 12 June 2013 and in Schedule A of the claimant application.

18    Between September and October 2016, NTSCORP facilitated the preparation of evidence of connection, including expert reports and lay evidence, on behalf of the applicant. The applicant and first respondent, the Attorney General of NSW also engaged in mediation of these issues.

19    The claimant application was notified between 20 November 2013 and 19 February 2014.

20    On 31 March–1 April 2014, a meeting of the claim group was convened where Mr Correy presented a comprehensive summary of an anthropological report to support the application.

21    On 20 May 2016, another claim group meeting was held to consider whether Widjabul Wia-bal traditional laws and customs includes kinship processes of adoption (“rearing up”) and incorporation, and the research that had been undertaken on such issues. The claim group unanimously passed a resolution as follows:

The People present at this claim group meeting confirm that NTSCORP is to file the ‘Points of Claim’ document in the Federal Court of Australia on 24 June 2016. This document will include the points that Widjabul Wia-Bal traditional laws and customs include kinship processes of adoption (‘rearing up’) and incorporation, in accordance with the research that has been undertaken.

22    On 12 May 2017, the Attorney General filed a notice accepting “the Applicant’s evidence of connection with the land the subject of the claim for the purpose only of commencing negotiations” regarding certain matters and on certain conditions. One of the conditions was the agreement of an Indigenous Land Use Agreement (ILUA) between the applicant and Attorney General.

23    Between July 2017 and October 2018, the applicant and the Attorney General conducted bilateral meetings, provided evidence, mediated and engaged in a separate questions hearing about the application of s 47B of the NTA and the extinguishment of native title.

24    By March 2019, the Attorney General had formally notified the Court of its position that the State of NSW was not prepared to enter into an agreement under ss 87 or 87A of the NTA (necessary for a consent determination of native title) unless an ILUA was agreed and registered under the NTA. The applicant filed an interlocutory application seeking to challenge this position in proposed separate questions alleging a lack of good faith negotiation by the Attorney General.

25    On 12 November 2019, there was another meeting of the claim group. The agenda for this meeting included:

1.    Update on progress of the native title application:

  a.    Land tenure analysis being undertaken for the claim area;

b.    Negotiating with Local Aboriginal Land Councils in relation to tenure;

c.    Outcome of hearing in relation to the Indigenous Land Use Agreement.

2.    Any other business as determined by the Widjabul Wia-bal People.

26    Ms Cindy Roberts, the applicant on the current interlocutory application and a member of the claim group, seconded the following resolution at this meeting:

Resolution 1 – Sufficiently Representative Meeting

The people present at this meeting confirm that they are sufficiently representative of the Widjabul Wia-bal People and are able to make decisions about the matters on the agenda.

The people attending the meeting are all descendants of one or more of the apical ancestors listed in the claim group description of the Widjabul Wia-bal native title application.

The Widjabul Wia-bal native title claim group is described in Schedule A of the native title application as:

The native title claim group comprises all the descendants of the following apical ancestors:

Bob de Bobbin (also known as Bob Deruhbin), died 1912 at Lismore

Topsy Brown (also known as Topsy Larken), born 1849, died 1919 at Dunoon

Johnny Bob (also known as Bob Roberts), born circa 1820

William ‘Billy’ King, born 1878 at Lismore

George Williams, born 1870

Kitty Barry, born 1841, died 1911 at Blakebrook

John ‘Jack’ Kapeen (also known as John ‘Jack’ Capeen), born circa 1860

Each person attending is representative of members of their family who are unable to attend. Their families and Elders are aware of this meeting and have been consulted about the issues for discussion. The members of the Widjabul Wia-bal native title claim group who are in attendance represent the views of their Ancestors, Elders, past and present, family members and those who cannot attend.

The Widjabul Wia-bal People confirm that sufficient notice was given of today’s meeting for the purposes of making authoritative decisions at this meeting.

Moved: REDACTED

Seconded: Cindy Roberts

In favour: 39

Against: 0

Abstentions: 4

Resolution passed by majority.

27    On 10 March 2020, the Full Court of this Court rejected the applicant’s claim of lack of good faith on the part of the Attorney General in Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34; (2020) 274 FCR 577. The practical result of this was that the position of the Attorney General remained that there would be no agreement to a consent determination unless and until an ILUA had been agreed, with the consent determination to take effect on registration of the ILUA.

28    On 3–4 September 2020, there was another claim group meeting both in person and via teleconference or videoconference attendance (made available to any Widjabul Wia-bal claim group member who contacted NTSCORP). The agenda included:

…

 2.    Update and discussion in relation to the ILUA hearing and judgment; and

3.    To consider and make decisions in relation to the State’s position on commercial and exclusive rights and the terms of the proposed native title consent determination.

4.    Update and discussion in relation to the Special Leave Application to the High Court of Australia;

5.    To consider and make decisions in relation to the offer of a tenure compromise by the State of NSW;

 6.    Research presentation on claim group description; and

 7.    Any other business as determined by the Widjabul Wia-bal People.

29    On 24 November 2020, a confidential and legally privileged on-country meeting occurred between representatives of the applicant and the Attorney General. Ms Roberts attended to conduct the smoking ceremony for those present at Cubawee.

30    On 16–17 March 2021, a claim group meeting was held (in person and via teleconference or videoconference attendance made available to any Widjabul Wia-bal claim group member who contacted NTSCORP) to discuss and obtain instructions on the following agenda items:

…

 2.    Update on the native title claim

 3.    Update on the ILUA negotiations

 4.    Discussion of Extinguishment Agreement

 5.    Discussion of Occupation Evidence

6.    Discussion regarding the process for establishing a Corporation under the CATSI Act. A corporation is required to be established to hold native title rights and interests on trust for Widjabul Wia-bal native title holders once a determination has been made. We note that no decisions will be made in relation to establishing a corporation at this meeting. This will be a discussion of the process and requirements only.

…

31    On 10–11 June 2021, a claim group meeting was held (in person and via teleconference or videoconference attendance made available to any Widjabul Wia-bal claim group member who contacted NTSCORP) to discuss and obtain instructions on the following relevant agenda items:

 2.    Update on the native title claim

3.    Discussion of State’s response regarding commercial native title rights and next steps

 4.    Update on ILUA Negotiations

5.    Discussion of State’s offer of funding under the ILUA, particularly in relation to the ILUA negotiation stage and how to allocate funds in the short-term

6.    General discussion of the processes and requirements of establishing a prescribed body corporate.

32    On 14–15 December 2021, an authorisation meeting was held (in person and via teleconference or videoconference attendance made available to any Widjabul Wia-bal claim group member who contacted NTSCORP) to discuss and obtain instructions on the following agenda items:

…

2.    Update on process for finalisation of the Widjabul Wia-bal Consent Determination and the proposed ILUA;

3.    Confirm the process of decision-making for the purpose of authorising the making of the Widjabul Wia-bal Claim and dealing with matters arising in relation to it, including authorising amendments to the Widjabul Wia-bal Claim;

…

5.    Heads of Agreement

a.    Discuss where the Consent Determination and proposed ILUA negotiations are up to (including an overview of the State’s revised offer).

b.    Discuss the steps the claim group needs to take in order to proceed towards a Consent Determination and finalise the proposed ILUA.

c.    The Widjabul Wia-bal Claim Group will be asked to give directions to the Applicant in relation to the Heads of Agreement.

…

33    On 16 December 2021, I convened a case management hearing. Ms Roberts attended and was permitted to speak raising her concerns. I informed the parties and Ms Roberts to the effect that (as summarised by the applicant):

(a)    the Widjabul Wia-bal consent determination was to be listed for a date on or after 4 November 2022;

 (b)    the Court can only respond to applications when they are made;

 (c)    the Court cannot respond on the basis of an oral request; and

(d)    an interlocutory application for joinder and evidence would be necessary for the Court to be in a position to respond to Ms Roberts.

34    On 12–13 April 2022, an authorisation meeting was held (in person and via teleconference or videoconference attendance made available to any Widjabul Wia-bal claim group member who contacted NTSCORP) to discuss and obtain instructions on the following agenda items:

…

2.    Update on process for finalisation of the Widjabul Wia-bal Consent Determination and the proposed ILUA

3.    Confirm the process of decision-making for the purpose of authorising the making of the Widjabul Wia-bal Claim and dealing with matters arising in relation to it

 4.    Agreement under section 47C of the Native Title Act

5.    Discussion and workshop in relation to the future Widjabul Wia-bal Prescribed Body Corporate (PBC) and governance structure

6.    Discussion of any outstanding issues in relation to the proposed ILUA with the State.

35    On 28 April 2022, I made orders with a detailed case management timetable including the final step of a consent determination hearing on-country on 4 November 2022.

36    On 15–17 June 2022, a claim group meeting was held (in person and via teleconference or videoconference attendance made available to any Widjabul Wia-bal claim group member who contacted NTSCORP) to discuss and obtain instructions on the following agenda items:

…

2.    Update on process for finalisation of the Widjabul Wia-bal Consent Determination and the proposed ILUA;

3.    Confirm the process of decision-making for the purpose of the Widjabul Wia-bal Claim and dealing with matters arising in relation to it;

4.    Discussion and workshop in relation to the future Widjabul Wia-bal Prescribed Body Corporate (PBC); and

a.    Discussion in relation to:

i.    The purposes and functions of the future Widjabul Wia-bal PBC under the Native Title Act (Cth), Corporation (Aboriginal and Torres Strait Islander) Act 2006 (Cth) and the PBC Regulations;

ii.    The matters which the Office of the Register of Indigenous Corporations (ORIC) requires to be addressed in the Rule Book for the PBC; and

iii.    Whether the PBC will hold native title on trust for Widjabul Wia-bal or act as agent.

b.    Following this discussion, the Widjabul Wia-bal Claim Group will consider and make a decision on whether the PBC will hold native title on trust or act as agent on behalf of Widjabul Wia-bal in relation to their native title rights and interests once determined.

5.    Discussion and workshop in relation to the future Widjabul Wia-bal governance structure and trust:

a.    Discussion in relation to potential governance ideas for the Widjabul Wia-bal Trust Structure; and

b.    Following this discussion, the Widjabul Wia-bal Claim Group will consider and make a decision on the preferred governance structure for the Widjabul Wia-bal Trust.

6.    Discussion of any outstanding issues in relation to the proposed ILUA with the State.

7.    Discussion of the priorities for the use of PBC funding allocated to Widjabul Wia-bal by the NSW State Government (funding of $400,000)

…

37    On 5 July 2022, NTSCORP sent to Ms Roberts NTSCORP’s Facilitation and Assistance Request Policy and details of how to apply for assistance.

38    On 11 July 2022, I made these orders:

1.    Any interlocutory application to join as a party to the proceedings pursuant to s 84(5) of the Native Title Act 1993 (Cth) is to be filed by 22 August 2022.

2.    The Court Registry is to serve this order on Ms Cindy Roberts within 3 days of the making of this order at an address to be agreed with Ms Roberts.

39    On 15–17 July 2022, a claim group meeting was held (in person and via teleconference or videoconference attendance made available to any Widjabul Wia-bal claim group member who contacted NTSCORP) to discuss and obtain instructions on the following agenda items:

…

2.    Update on process for finalisation of the Widjabul Wia-bal Consent Determination and the proposed ILUA;

3.    Confirm the process of decision-making for the purpose of the Widjabul Wia-bal Claim and dealing with matters arising in relation to it;

4.    Discussion and workshop in relation to the future Widjabul Wia-bal Prescribed Body Corporate (PBC); and

a.    Discussion in relation to:

i.    The purposes and functions of the future Widjabul Wia-bal PBC under the Native Title Act (Cth), Corporation (Aboriginal and Torres Strait Islander) Act 2006 (Cth) and the PBC Regulations;

ii.    The matters which the Office of the Register of Indigenous Corporations (ORIC) requires to be addressed in the Rule Book for the PBC; and

iii.    Key elements of the future Widjabul Wia-bal PBC rule book, including:

1.    The objective and purpose of the future Widjabul Wia-bal PBC;

2.    The powers of the future Widjabul Wia-bal PBC to conduct business on behalf of Widjabul Wia-bal;

3.    The structure of the board of directors of the future Widjabul Wia-bal PBC; and

4.    The role of a Council of Elders advisory committee in certain decisions to be made by the future Widjabul Wia-bal PBC.

5.    Discussion and workshop in relation to the future Widjabul Wia-bal governance structure and trust:

a.    Workshop with Jackson McDonald and NTSCORP in relation to the key elements of the trust deed, including discussions with Widjabul Wia-bal about:

i.    How you envision the Widjabul Wia-bal trust governance structure will operate;

ii.    The transition process and timelines for the Widjabul Wia-bal trust governance structure;

   iii.    The process of selecting al licenced trustee; and

iv.    The composition of the advisory committee and/or trustee company.

6.    Discussion of any outstanding issues in relation to the proposed ILUA with the State.

7.    Discussion of the priorities for the use of PBC funding allocated to Widjabul Wia-bal by the NSW State Government (funding of $400,000);

…

40    At this meeting, those Widjabul Wia-bal claim group members present, including Rachel Roberts and Susan Holten, discussed, and resolved to name the proposed Widjabul Wia-bal Prescribed Body Corporate (PBC), the “Widjabul Wia-bal Gurrumbil Aboriginal Corporation”. “Gurrumbil” was discussed at this meeting as being the language word for hoop pine, a totem of Widjabul Wia-bal.

41    On 22 July 2022, NTSCORP prepared and completed a mail-out for the authorisation meetings held 19–21 August 2022, and the PBC establishment meeting to be held on 22 August 2022.

42    On 9 August 2022, NTSCORP prepared and completed a mail-out for the PBC establishment meeting held on 22 August 2022. A copy of the draft rule book for Widjabul Wia-bal Gurrumbil Aboriginal Corporation was sent to each of the following persons on the Widjabul Wia-bal mailing list, including:

    Cindy Roberts;

    James Deasy (Jim Speeding);

    Barry Claude Roberts;

    Steven Roberts;

    Rachel Roberts;

    Lola Roberts;

    Peter Roberts;

    Leonie Roberts Nowta; and

    Susan Holten (nee Roberts).

43    On 19 August 2022, between 9:30am and 3:30pm a Widjabul Wia-bal claim group authorisation meeting was held (in person and via teleconference or videoconference attendance made available to any Widjabul Wia-bal claim group member who contacted NTSCORP). The Widjabul Wia-bal claim group members present:

1.    Confirmed the process of decision-making for the purpose of authorising the making of the Widjabul Wia-bal Claim and dealing with matters arising in relation to it, including authorising amendments to the Widjabul Wia-bal Claim and authorising the Applicant to enter into the section 87 Agreement and Consent Determination;

2.    Authorised the Applicant to amend the Widjabul Wia-bal native title determination to remove the parcels described in Attachment A from the Widjabul Wia-bal Claim Area; and

3.    Authorised the Applicant to enter into the proposed section 87 Agreement and Consent Determination recognising Widjabul Wia-bal’s native title rights and interests.

44    At this meeting the claim group authorised the description of the Widjabul Wia-bal native title holders as follows (emphasis added):

Native title in relation to the native title area is held by Widjabul Wia-bal who comprise all the descendants of the following apical ancestors:

   (a)    Bob de Bobbin (also known as Bob Deruhbin), died 1912 at Lismore;

(b)    Topsy Brown (also known as Topsy Larken), born 1849, died 1919 at Dunoon;

   (c)    Johnny Bob (also known as Bob Roberts), born circa 1820;

   (d)    William “Billy” King, born 1878 at Lismore;

   (e)    George Williams, born 1870;

(f)    Kitty Barry, born 1841, died 1911 at Blakebrook; and

(g)     John “Jack” Kapeen (also known as John “Jack” Capeen), born circa 1860

including persons adopted or incorporated into the families of those persons and who identify as, and are accepted as, Widjabul Wia-bal in accordance with Widjabul Wia-bal traditional laws and customs (and the biological descendants of those adopted or incorporated persons).

45    On 20–21 August 2022, a Widjabul Wia-bal claim group authorisation meeting was held (in person and via teleconference or videoconference attendance made available to any Widjabul Wia-bal claim group member who contacted NTSCORP) to discuss and consider the Widjabul Wia-bal Goori naa Land Use Agreement ILUA. Those present decided to authorise the applicant to enter the ILUA, as presented at the meeting.

46    On 22 August 2022, the Widjabul Wia-bal Gurrumbil Aboriginal Corporation establishment meeting was held (in person and via teleconference or videoconference attendance made available to any Widjabul Wia-bal claim group member who contacted NTSCORP) to discuss and decide on:

1.    The decision-making process for the establishment of Widjabul Wia-bal’s PBC;

2.    To establish Widjabul Wia-bal’s PBC under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act) including making resolutions required to meet the pre-incorporation requirements including:

  a.    Authorising the member(s) applying for incorporation;

  b.    Approving the proposed rule book;

  c.    Approving the replaceable rules being adopted;

  d.    Approving some or all of the replaceable rules being changed;

e.    Nominating who will become directors upon registration of the Corporation; and

f.    Nominating who will become the contact person upon registration of the Corporation.

3.    For the PBC members to consider and make decisions in relation to the authorisation of the Widjabul Wia-bal Goori naa Land Use Agreement ILUA;

4.    For the PBC members to consider and make decisions in relation to the authorisation of the ILUA; and

5.    To consider and make decisions about authorising the PBC to hold Widjabul Wia-bal’s Native Title rights and interests on trust for Widjabul Wia-bal.

47    The Incorporation members present discussed and approved the Rule Book presented, subject to some amendments made during the meeting. Relevantly, the rule book provides that eligibility for membership is defined as in the consent determination, being:

A Widjabul Wia-bal Person is defined as a descendant of one or more of the following apical ancestors:

(a) Bob de Bobbin (also known as Bob Deruhbin), died 1912 at Lismore;

(b) Topsy Brown (also known as Topsy Larken), born 1849, died 1919 at Dunoon;

(c) Johnny Bob (also known as Bob Roberts), born circa 1820;

(d) William “Billy” King, born 1878 at Lismore;

(e) George Williams, born 1870;

(f) Kitty Barry, born 1841, died 1911 at Blakebrook; and

(g) John “Jack” Kapeen (also known as John “Jack” Capeen), born circa 1860

including persons adopted or incorporated into the families of those persons and who identify as, and are accepted as, Widjabul Wia-bal in accordance with Widjabul Wia-bal traditional laws and customs (and the biological descendants of those adopted or incorporated persons).

48    An election for the Corporation’s directors was then held, and the following persons were elected as directors:

(1)    Tracey King

(2)    Jenny Smith

(3)    Queenie Speeding

(4)    Noel King Jnr

(5)    Nicole Roberts

(6)    Gemma Roberts; and

(7)    Ashley Moran.

49    On 26 August 2022, the applicant and Attorney General provided short minutes of order to Registrar Stride (National Judicial Registrar – Native Title) which proposed:

1.    The matter be listed for consent determination hearing at 10 am on 4 November 2022 at Lismore, New South Wales.

2.    By 7 October 2022, the Applicant is to file:

a.    any agreement reached by the parties pursuant to section 87 of the Native Title Act 1993 (Cth); and

b.    any nomination and documents in support under sections 56 or 57 of the Native Title Act 1993 (Cth).

3.    By 7 October 2022, the Applicant and First Respondent are to file:

a.    any joint submissions or evidence in support of the consent determination.

4.    By 10 October 2022, any respondent who wishes to do so may file any submissions or evidence in support of the consent determination.

50    Ms Roberts filed her interlocutory application for joinder on 24 August 2022 (which was stamped by the Court as filed on 30 August 2022).

2.3    Ms Roberts’ interlocutory application

51    On 2 September 2022, I ordered that:

1. Ms Roberts is to file and serve any further information (affidavits or submissions) in support of her interlocutory application dated 24 August 2022 (application), by 4:00pm on 6 September 2022.

2. The other interested parties are to file and serve any information (affidavits or submissions) relevant to the application by 4:00pm on 7 September 2022.

3. The application be listed for an online hearing at 10:15am on 9 September 2022.

52    On 9 September 2022, I ordered that:

1.    The consent determination hearing on 4 November 2022 be vacated.

2.    The matter be referred for urgent mediation before Registrar Stride.

3.    The Registrar provide a report about the status of the matter to Justice Jagot relating to the mediation as soon as possible.

4.    The interlocutory application for joinder be adjourned to a date to be determined.

5.    The matter be provisionally listed for a consent determination hearing in December 2022 on a date to be determined.

53    I also noted that the “possible consent determination hearing dates are 8, 9, 12, 13, 14, 15, 16 December 2022”.

54    On 14 September 2022, Registrar Stride conducted two mediation sessions at Lismore. Registrar Stride provided a report to the Court on 19 September 2002 that said:

In the first mediation session with the Widjabul Wia-bal Applicant:

1. It was agreed that further mediation before a Judicial Registrar (Native Title), between both mediation groups and then with the First Respondent would be beneficial to give the opportunity for an exchange of information regarding issues of concern to the Interlocutory Applicant and the deponents who filed affidavits in support.

However, the Applicant considers that this should occur within timeframes that allow for the First Respondent to brief the Attorney General and relevant Ministers in the week of 3 October 2022, in order for the determination to proceed in 2022 and will make themselves available to achieve this.

…

In the second mediation session with the Interlocutory Applicant:

4. It was agreed that further mediation before a Judicial Registrar (Native Title), between both mediation groups and the First Respondent, at a date after 3 October 2022, would be beneficial. The Interlocutory Applicant and other attendees could not be available until that week and are insistent on being legally represented before the mediation proceeds. The lawyer nominated by the Interlocutory Applicant (but not included on the pre-approved list) is not available until the week of 3 October.

…

RECOMMENDATION

As the First Respondent has indicated that it needs to be able to brief by 5 October if there are any prospects of the consent determination proceeding in 2022 and it has not been possible to schedule further mediation sessions before that time, I recommend that the matter returns to judicial case management to determine next steps.

55    On 21 September 2022, I ordered that:

1. Ms Roberts is to file and serve any further evidence in support of her interlocutory application dated 24 August 2022 by 4:00pm on 23 September 2022.

2. The applicant and any other active party may file and serve any further evidence, and the applicant is to file and serve a chronology cross-referenced to the evidence, by 4:00pm on 27 September 2022.

3. Ms Robert’s interlocutory application be listed for hearing between 9:15am and 12:45pm on 29 September 2022.

3.    THE EVIDENCE

56    Before dealing with the evidence, I record that any person who has been involved in native title litigation knows that enormous time, cost, and effort is involved in: (a) every mediation, (b) every meeting of the members of any claim group, and (c) every claim group meeting. This is to say nothing of the enormous time, cost, and effort involved in navigating the decision making processes concerning native title in NSW, which involves a multiplicity of NSW Departments and agencies. The public investment of the Commonwealth (as the funder of NTSCORP) and NSW in this matter since 2001 must be extraordinary. The amount of Court time and effort (particularly Registrar time and effort) also should not be overlooked.

3.1    Supporting the interlocutory application of Ms Roberts

57    Ms Roberts is a member of the claim group. She and other claim group members supporting her interlocutory application for joinder as a party say they have “many concerns” about the claimant application. These concerns include (for example only):

3.1.1    Barry Roberts

…from the Genealogy presented by NTSCORP that several of the applicants on the native Title Claim are not bloodline connected.

…

NTSCORP have not paid any attention to my concerns or the concerns of other elders… When my brother Murray got to the meeting, the family were attacked by his daughters for bringing him into the meeting. My brother told everyone that he wanted to speak and proceeded to talk about the land and the ILUA (Indigenous Land Use Agreement) and our connection to the land. I was aware that my brother was against the ILUA and that is why he wanted to come to the meeting.

As a senior Lore man and Widjabul elder I asked for the meeting to be closed to stop the arguing or to adjourn the meeting to another day. NTSCORP refused to pay any attention to me and the meeting carried on. Given the disrespect I was shown by NTSCORP, I walked out of the meeting and went home.

NTSCORPs members have shown disrespect towards the elders Widjabul Wai-bal people who are the rightful decision makers under our traditional Lore.

Further, NTSCORP has not respected our Lore, Customs and our traditional ways of doing things with the Widjabul Wai-bal people.

I do not agree for Native Title with ILUA (Indigenous Land Use Agreement) or PBC(Prescribed Body Corp) but I want to see our land back with respect to the rightful owners of our country being the direct bloodline descendants of the Widjabul Wai-bal people.

3.1.2    Luana Roberts-Smith-Quinlan

I have heard of the disrespect against my Widjabul Wia-Bal Elders in these Native Title meetings.

Such disrespect has been extended to my father Barry Claude Roberts who is a Widjabul Wia-bal Loreman and the last Corroboree man of the Widjabul people.

NTSCORP have disrespected our Lore, Customs and Traditional ways of how our family does things.

NTSCORP have caused nothing but division between our families (divide & conquer).

I am aware that the geanology presented by NTSCORP is not right and several of the applicants are not bloodline connected to our country.

NTSCORP need to produce the evidence if those people are bloodline connected which has not been provided to date.

I did not attend the Native Title meetings as I was never Notified by NTSCORP or the meetings dates and times.

3.1.3    Rachel Roberts

The applicant Cindy Roberts who is the respondent in the application on behalf of the WIDJABUL WIA-BAL PEOPLE, is my blood niece and I am making this affidavit in support of her application as it is in the best interest of our family.

…

I do not agree on the name PBC name GURRUMBIL without proper consultation of Elders connection…

I do not agree on ILUA (Indigenous Land Use Agreement) because we have not seen the evidence of the ACT.

ILUA has not been approved to by all members of Native Title Elders.

The Geaneology presented by NTSCORP is incorrect and they have not shown the evidence to support their claim.

Further NTSCORP have not consulted with the appropriate elders of the Widjabul Waibal people who are the true bloodlines who are connected to our country.

…

NTSCORP bullied the elders and families of the Widjabul Waibal people during these Native Title meeting into making decisions not in the best interests of our people in our country.

…

The PBC named after our great great great grandfather a Tribal Elder of LORE and a Cleverman who is the bloodline of my inheritance of the Widjabul Wia-bal people & by using his name in the PBC is disrespectful unto my family and our Tribe.

…

I stand strongly against the ILUA because there is no consultation within the ACT & my knowledge with the ILUA is not consider beneficial to NTSCORP's being a Widjabul Wia-bal Elder to hand down the right knowledge to the next Widjabul generation of the future.

I have 36 grandchildren and 6 great grandchildren & this is about their belonging place and culture of our values and beliefs traditional Lore & customs and respect back to our communities through the right process through Elders of Widjabul Wia-bal.

3.1.4    Steven Roberts

The applicant Cindy Roberts who is the respondent in the application on behalf of the WIDJABUL WIA-BAL PEOPLE, and I am making this affidavit in support of that application as it is in the best interest of our family.

…

I fully support her application to speak on behalf of myself as Widjabul Wia-bal Elder throughout this Native Title process.

…

I have no more confidence in NTSCORP as my legal representation as an applicant in this claim, due to too many wrong decisions and the disrespect of NTSCORPS to the elders not listening and taking our advice into consideration.

I feel like they have never listened to me as an Elder when I was only trying to help them make the right decisions and to put them on the right track.

They wouldn’t listen about the genealogy of Old George Williams who is an Apical and not Widjabul but is from the Galibul/Githabul Tribe NTSCORP did not listen about other Apicals who are also not Widjabul.

I also feel that NTSCORP should have fixed all of the genealogy at the beginning, for these problems would not be here now.

3.1.5    Mebbingarri Cindy Roberts

…I want to be a respondent because I and many other Wijabul-Wiabul people, including elders who are members of the Widjabul-Wiabul Elders Aboriginal Corporation, have not had a sufficient opportunity to review or consider the genealogies and other research in support of the claim to allow us to make a considered decision about whether we agree with it.

…

I have expressed the concerns described at paragraphs three and four above to lawyers and other people employed by Native Title Services Corporation (NTSCorp) but they have not given me an opportunity to review the genealogies, research, proposed determination, prescribed body corporate (PBC) constitution or the ILUA and any associated trust deeds or company constitutions.

…I am concerned that the current description of the Widjabul-Wiabal people contains people who do not have a bloodline to our country. Without having an opportunity to review and consider the genealogies and other research in support of the claim I am unable to say whether it inconsistent with my people’s traditional lore and custom.

…

I and members of my extended family have attended meetings organised by NTSCorp to consider how to progress our claim. At those meetings, NTSCorp does not give us the opportunity to make decisions in our traditional way.

…

I have not been provided with a copy of the proposed ILUA or the deed of any trust that would be established to hold money on behalf of our people nor have I had any of the detail of the arrangements necessary to give effect to the proposed ILUA properly explained to me. As a result, I have not had an opportunity to understand what is proposed, consider whether I support it and make an informed decision.

…

I want to be sure the proposed determination is consistent with our people’s lore and custom, and there is widespread understanding of and support for the PBC and ILUA within the Widjabul-Wiabul before it is all carved in stone. If we do not take the time to get things right now, I am concerned that we are setting up our PBC to fail and be the subject of community division and dispute in the future.

…

Several applicants have not produced their genealogy, ie birth Certificates of their parents/ grandparents to show they are bloodline connected, which NTSCORP should prove the evidence to stop any further delays since they are responsible,…

All family clans are not represented equally under the Apical Description some having no representatives at all, one family is overrepresented…

A 66B Application has not been lodged & filed by NTSCORP for the deceased applicants to be replaced for another to take that applicants position or decided upon by our elders & all that Apical family clan, not by NTSCORP putting a support/proxy has a replacement & making decision that was not authorised.

The ILUA has not been sited [sic] by all the Widjabul tribe including myself to be lodged for registration through the NNTT, which I thought was going to be a part of the mediation.

The PRESCRIBE BODY CORPORATION (PBC) has several issues.

- The Sacred name of our ggggrandfather [sic] was not approved by the elders & tribe to use a deceased man's name who is a (Cleverman) Ghurrumbil aka Gurrumbil (Parrots Nest) which breaks traditional LORE.

- The new PBC board of directors who were voted in from the floor & not from each family Apical group leaving many families unrepresented & not informed out of the decision-making process for their country & one family clan over representing.

…

where Simon Correy lists the persons comprising the Applicant for the Application being members of the native title claim group through their descent from the apical ancestor, I say that John “Jack” Kapeen was not a Widjabul man is not a Widjabal apical. I say this because he is the great great grand father of my greatgrandmother Elizabeth Hookey who is not Widjabul but Gumbaynggir, Arakwal aka Ngarakabul she was born in Ulmarra on her Country.

…where Simon Correy lists Michael Ryan as a descendant of Bob de Bobbin, I say that is not correct, he is not a descendant of Bob de Bobbin. I say this because my mother Lola Roberts & other family elders have told me that they are not Widjabul bloodline but moved here & grew up here on Widjabul country & married in through whiteman blood not Widjabul bloodline, I learnt everything from my mother’s & aunty’s & our old people who are no longer with us.

…where Simon Correy lists Jenny Smith as a descendant of Bob de Bobbin I say that is not correct, she is not a descendant of Bob de Bobbin. I say this because my mother & my family elders told me & plus I knew her mother Aunty Faye Cook, she was from Cabbo married Bob Smith who was not a Widjabul man & this was told to me by my mother’s & aunties & uncles by some of my elders still alive today.

The inclusion of adopted persons as members of the Widjabul applicant group is not and never has been Widjabul lore and custom. I know this because I have been taught by my mother & grandmothers & great aunty’s & my old people who are no longer here also by my Uncle Dulung, Uncle Bluey, Uncle Clarrie and my uncle Claude Roberts who is still here with us today.

…

3.1.6    Suzanne Holten

…

I and many other Wijabul-Wiabal people, including elders who are members of the Widjabul-Wiabal Elders Aboriginal Corporation, have not had a sufficient opportunity to review or consider the genealogies and other research in support of the claim to allow us to make a considered decision about whether we agree with it, or not.

…

…genealogies was not presented to the groups in Native Title to·be shared only what NTSCORP say because we have no trust or confidence in their representation for our people. And, we do not agree on IULA [sic] Indigenous Use land Agreement, and because that’s just to sign our belonging country away when we are the custodians & guardian of country.

…Cindy Roberts who is my niece, and blood is supporting the Elders because of bullying & disrespectful to make making swifts decisions without prospered elders’ consultation with her Knowledge, Wisdom, and respect.

…

No PBC (people Body Corporation) Widjabul-Wiabal Gurrumbil Goori Na Corporation!!!!

…

My family and other elders of my families told me that under our traditional lore and custom only people with a direct bloodline to our country have traditional rights. I am concerned that the current description of the Widjabul-Wiabal people contains people who do not have a bloodline to our country but without having an opportunity to review and consider the genealogies and other research in support of the claim I am unable to say whether it inconsistent with my people traditional lore and custom.

3.1.7    Lola Roberts

Like others from our people, I too was not given any notification from these people who claim to be a Widjabul Wai-bal person or person’s.

These people who are claiming to be of Widjabul Descendants need to be stopped unless they can prove they are true bloodline to be recognised under our Lore of the Widjabul Wia-bal Elders.

…

Now today there is people of different races who are saying they are from the Widjabul Wia-bal Tribe, these people need to stop they are causing a lot of disturbance of the rightful people of Widjabul Country of the Bundjalung Nation, we have asked them to bring their genealogy along but we haven’t seen any to be recognised.

These whom are claiming to be Widjabul Wia-bal descendants we have asked over and over still no proper DNA about their genealogy and photos without names were not accepted in our tribe…

We as the true tribal elders would like this matter cleared up and these people that have been appointed as applicants to step down from their position until a full proof of their DNA and genealogy to be shown as bloodline to Widjabul Wia-bal people.

3.1.8    Leonee Roberts Nowta

…

The Bloodline must and should be linked, to one of the apical description whom are descendants of Lyle Roberts snr Lore Man” of the Widjabul Tribe.

…

…the behaviour and attitude of NTSCORP people and those who are not of the bloodline of the Widjabul clan have now caused a major division, amongst all separate parties; creating enormous disrespect to the true descendants of the Widjabul Clan.

…

3.1.9    Peter Roberts

…

I also have many concerns about this Native Title application by NTSCORP that needs to be addressed.

…

I do not support the ILUA (Indigenous Land Use Agreement) that NTSCORP has presented to our people and how it was presented.

I do not accept the geanology that has been presented on the Native Title application because it is not true and many of the applicants are not Widjabul descendants.

I support Native Title for our country but I DO NOT support the ILUA and its PBC that NTSCORP has setup.

I do not attend any further meetings due to the disrespect towards my eldest brother, myself and other elders of my family.

3.1.10    James Speeding-Deasy

…

I recognise myself as a Elder in the community, I have always been overlooked whenever any Cultural Site Work becomes available due to nepotism within the Native Claim group (I’ve had fifteen years experience) yet, I always have been shuned [sic] by certain Native Title Applicants.

…

I also believe that there there is so much Inconsistency with the genealogies within this Claim that NTSCORP needs to address

There is also disrespect towards the elders and the Widjabul people from the younger ones that have been appointed has reserves through nepotism & pecuniary interest, influenced by NTSCORP throughout this Native Title claim.

There is no proper Elders consultation through the NTSCORP process which the Elders are the rightful decision makers of our people & country its traditional.

…

Legally, culturally and categorically, I have lost faith & confidence in NSTCorp and I am severing ties (with them) for me and my family whom they no longer represent.

One of the reasons why I feel this way is because there isn’t much Elders input into this Native Title Claim but rather we are disrespected.

I strongly believe there should be more Widjabul Wia-Bal Elders for this is the Core existence of Native Title the Elders being the decision makers under traditional & customary lore.

3.1.11    Margaret Roberts

…

My [concerns] are:

*It was not explained the impact of Native Title on our sovereign rights.

*Does an llua conceed our sovereign rights.

*Does the ILUA allows extinguishment of all past acts, intermediate acts and future acts.

*Does this mean no compensation claim can be lodged after the determination.

…

I also question the inclusion of adoption in the agreement. it is not our lore, custom or tradition, whether it is included in other Bundjalung clan groups Native Title. Our Bundjalung nation was a waring nation and not all clan groups are the same including dialects.

…

Most importantly where did and do the Elders sit in these decisions and future decision making process, currently they can advise but have no voting power. In our lore Elders were the decision makers. This disrespect saddens me deeply, its another means of fracturing our Culture.

3.2    Supporting the claimant application

58    The evidence in support of the claimant application proceeding to a consent determination in 2022 includes (for example only):

3.2.1    Jennifer Smith

…

The description of the Widjabul Wia-bal native title claim group included in the claim was most definitely part of the discussions at the authorisation meeting for the claim in 2013. We had a big discussion about it. I remember Leonee Roberts Nowta, Lola Roberts and Steven Roberts all being at that meeting.

Simon Correy, the anthropologist from NTSCORP, was at that very first authorisation meeting in 2013 and presented his research to the group. He also went through the genealogy in 2014 and his report. I remember him doing that.

…

All of the people supporting the interlocutory application are members of the same family – the Roberts family. Just a small part of the Roberts family.

The Roberts family is a big family…

The Roberts family have been well represented at all the Widjabul Wia-bal meetings. I know that Nicky Roberts, Gilbert Laurie, Ashley Moran, Noel King Jr, Lenkunyar Roberts-Hickling, Rachel Roberts, Queenie Ann Speeding, Lena Logan, Dianne Torrens, Lorraine Roberts, Bronwyn King, Larissa Baldwin, Milo (Amelia) Roberts and Emanual Roberts have all been attending the Widjabul Wia-bal native title claim group meetings. Chris Binge, Leonee’s (Roberts Nowta) son, has also attended some meetings. You’ve also got the Roberts that travel up from Kempsey, Sue Holten and Uncle Claudie (Barry Claude) Roberts. Phil Roberts has also attended and so has his sister Rhoda Roberts. There are also lots of younger members of the Roberts family who attend. The Roberts family is well represented at the meetings.

…

Everyone in the community knows when claim group meetings are happening. Whether by word of mouth or social media. I’ve seen the notice on the NTSCORP Facebook page a couple of times and I've seen a couple in the Koori Mail. I always put it up on our family Facebook group so everyone knows and is reminded and then everyone asks me questions about it.

…

There have been a lot of Widjabul Wia-bal meetings over the past two years. If anything, there’s been too many meetings. I think from what I have experienced, the consultation process has gone above and beyond. It's not just a 9am–5pm consultation. There’s after hours stuff as well. Talking to people about the issues.

There has been a lot of discussion at Widjabul Wia-bal claim group meetings over the last twelve months about the ILUA and the consent determination. There’s been heaps of discussion. That’s been a couple of years in the making. We’ve talked about how do we move forward with this as a collective, our long-term goals of what we’re aiming for and the legalities and mechanisms behind how we get it and maintain it. We’ve discussed all the risk factors involved in the decisions we’re making.

Each time we have a Widjabul Wia-bal claim group meeting we review and we go over what we went through at the meeting before and the decisions that were made to make sure people are on board. NTSCORP will stop the meeting if new people arrive or if someone is unsure and review resolutions passed at previous meetings so everyone is aware. There is a lot of reviewing going on.

I haven’t seen Cindy Roberts at a Widjabul Wia-bal claim group meeting recently. I haven’t seen her at a meeting this year. She does not come. I don’t remember her being really involved at the start of the claim either. I do recall her attending some claim group meetings but that was a while ago now. Her daughter, Skye, has come to some meetings.

…

There are Elders present at all the Widjabul Wia-bal meetings. There’s a good representation of Elders across the families. Some choose not to come but I go back and talk to my Elders about things and they trust me to be their voice at meetings.

…

I have not witnessed anyone from NTSCORP being disrespectful or bullying to Widjabul Wia-bal. NTSCORP are definitely not bullies. In my experience, NTSCORP are professional and respectful.

Sometimes there are disagreements among the members and we discuss the disagreements. I think everyone gets an opportunity to have their say. There is a lot of talking at the meetings.

…

I don’t think that Cindy Roberts has any special interest that is different to other members of the Widjabul Wia-bal claim group. She is a member of the claim group and has the same rights and the same opportunity to be involved as all of us. She doesn’t have any special status.

Cindy (Roberts) is also well represented by the Roberts family at all the meetings and through the Applicant.

It’s frustrating what she’s doing. We’re trying to do it for the right reasons; not for personal gain. What her and her little group are doing is not for the betterment of the community. It’s divisive. It’s sad.

Cindy’s actions are having a detrimental impact on us as the Applicant. This is putting emotional and mental strain on all of us – the Applicant and the broader group. It’s hurting all of us.

It’s been a long fight for native title. Widjabul Wia-bal shouldn’t have to wait longer for our native title because Cindy Roberts is objecting. One person shouldn’t have that much power.

If this delays the consent determination, it will make everyone more wild and frustrated.

That would impact everybody in this community here. We don’t want that to happen. We’ve had our ups and downs but we’ve managed to work through it all.

If the consent determination is delayed, that also impacts who is there to see the determination. We’ve already had Goongie (Murray John Roberts) pass away. My sister Dianne has passed away and my son. Now we’ve got Junie (June Gordon) and Uncle Reg (Reg King), two members of the Applicant who are elderly and unwell. It is heartbreaking for Nicky (Roberts) and her family that Goongie (Murray John Roberts) won’t see the determination. It will be heartbreaking if more of our Elders pass away before we get our native title determined.

I know that the ILUA also needs to be registered by a certain time and that timeline is critical. If it’s not, that would affect Widjabul Wia-bal negatively most definitely.

I don’t think it’s beneficial for Cindy (Roberts) to become a respondent. I don’t think anything positive can come from it.

Cindy (Roberts) has had the opportunity to be involved over the last ten years and now all of a sudden she wants to be involved at the end. She should have raised this years ago when we first started doing the ILUA and the claim and the genealogies – not at the last moment.

3.2.2    Nicole Roberts

…

The description of the Widjabul Wia-bal native title claim group included in the claim was discussed at the authorisation meeting for the claim which was held at the “Y” (YWCA) in Goonellabah on 11 and 12 June 2013.

I distinctly recall the meeting at the Y and that it became a bit heated in the discussions about the apical ancestors for the claim. There was a big lengthy discussion before we came to agreement about the apicals.

I remember that one or two of the apicals were removed by agreement of everyone and the others remained. Everyone accepted the apicals listed, which are the seven listed on the claim now.

Everyone was given the opportunity to ask questions at that meeting and beforehand when the research was presented. Everyone was given the opportunity to raise issues and we came to an agreed outcome as to how the group was formulated. We all agreed to move forward with the seven apicals and make the claim on that basis.

I remember Uncle Steven Roberts being at that meeting because he was nominated to be an Applicant. Aunty Lois Johnson, my Dad, Ashley Moran, Jenny Smith, Dianne Harrington were there too.

Prior to this current claim, there was a previous Widjabul Aboriginal People claim, which was lodged in 2001 and discontinued in 2013.

One of the reasons that claim was discontinued is because there was an issue with the apical ancestors. It didn’t cover everybody that was Widjabul Wia-bal. The claim was discontinued and then a new claim was filed to include all the apical ancestors to include everybody. It passed the registration test with those apical ancestors and the State accepted connection with those apicals.

There wasn’t enough representation on the previous claim and it didn’t cover the broader Widjabul Wia-bal community.

This dispute Cindy Roberts is raising about the apical ancestors was part of the previous claim. This issue about certain people being apical ancestors was resolved when we lodged this current claim. There was a heated discussion about it but we all agreed to move forward with the ones that were listed.

I know my father (Murray John Roberts) moved forward from that dispute. There was an acceptance within the group that this new claim, which included all the families, was the way forward. The description of Widjabul Wia-bal native title holders now covers all the families. It covers all the people who hold native title in Widjabul Wia-bal Country and is supported by the group and the research. Everybody is represented.

…

I understand that Cindy Roberts is questioning the inclusion of Michael Ryan (Delbridge) and Jenny Smith as members of the Applicant. That’s not right. I was told all my teenage years by Uncle Steven Roberts that Michael Delbridge is my full uncle.

Uncle Steven always told me when I was growing up that Mickey Delbridge (which is how I knew him growing up) was our full Uncle. He would say ’that man living down there, Mickey Delbridge is your full blood Uncle.’ We would stop at the front of Mickey’s house on Keen Street and use the tap to have a drink walking home and keep going on to home at Gundurimba.

I’ve always known Jenny Smith growing up. I always knew Jenny Smith and her family. They lived in South Lismore. I always thought they were from here because I've always known them to be here growing up all my life whether it be them, their kids, their parents and brothers. I've always known them to be from here.

PBC

I am aware that Rachel Roberts is saying the name of the PBC is disrespectful but Rachel Roberts was at the meeting where we decided on the name for the PBC. It was suggested as the name for the PBC and Rachel Roberts did not object in any way at that time. She sat there and didn’t raise her concerns. She had the opportunity to bring it up and say I don't agree with the name but she didn’t. We all voted on the name and agreed.

…

There have been too many claim group meetings if anything – there have been so many. There was ample opportunity for people to come along and get the information they wanted. We had a lot of meetings, especially in these last 12 – 18 months. Everyone in the community knows when meetings are happening – it’s talked about amongst family groups. Because of COVID and the floods, NTSCORP has made it more accessible to come via Zoom or dial in so you can hear what’s going on. So you had that option too.

People from each family attend and make sure a group of representatives come to the meetings, especially for important decisions. There is good representation of the families at Widjabul Wia-bal native title claim group meetings.

Everyone can attend and is given the same opportunity, but you can’t drag people to the meetings. If they don’t want to come, what do you do?

The Roberts family has participated and been represented at all Widjabul Wia-bal claim group meetings. All of the people supporting the interlocutory application are members of the Roberts family but do not represent the interests of all of us.

…

During all the claim group meetings I have attended, it is always said by NTSCORP that if youse don’t understand, come up at the lunch break and we can sit with you and explain it to you. NTSCORP have always given people an opportunity to ask questions or make comments on what is going on. They also announce that anyone can come discuss anything with NTSCORP staff present at that meeting during the lunch or tea breaks. I have gone up to ask questions over breaks and I’ve always heard someone from the legal team or Neville Kim from NTSCORP say ‘come up and ask questions in the break.’

…

I don’t think what they’re saying about NTSCORP is true. I have not witnessed anyone from NTSCORP being disrespectful or NTSCORP shutting people down. The decisions that are made come from the claim group.

At every claim group meeting, at the start NTSCORP will always ask if we are sufficiently representative of Widjabul Wia-bal and if we feel comfortable to make decisions at that claim group meeting. We then vote on resolutions about whether we are sufficiently representative and if we’ve been given sufficient notice of what’s to be discussed at the meeting in order to make decisions. The meeting doesn’t proceed unless the people in attendance are comfortable to pass those resolutions. There is always a discussion about it and about how some people are in attendance representing other family members who can’t make it.

…

This joinder application has had a big impact emotionally. It has really impacted myself, my immediate family, my siblings. Our father fought for years – and not just for our family, but for everybody. To have it held up by one person – it's been very stressful and emotional.

It's frustrating what she’s doing and what the deponents are doing. They could have raised these issues earlier, at the meetings they attended, or otherwise.

Cindy Roberts hasn’t lived on Country for quite a long time. She moved away at a young age. For Cindy Roberts to walk in at this late stage and disrupt the process that the community have dedicated a lot of time and effort to – what gives her that right?

Cindy Roberts doesn’t speak for every Widjabul Wia-bal person. She certainly doesn't speak for myself or my family.

If the consent determination is delayed more, it means more stress, more heartache. It is the stress of the unknown. People have fought for so long and people have died. For what? We just want to get to the finish line.

3.2.3    Queenie Speeding

…

I went to the authorisation meeting in 2013 at the YWCA in Goonellabah when the new claim was authorised.

At that meeting, there was a discussion about the apical ancestors. The list of apical ancestors was discussed and everyone decided to move forward with that list. The group as a whole were asked and were in favour of going forward.

I am aware that Cindy Roberts is questioning the connection of Jennifer Smith and Michael Ryan. However, I am also aware that James Deasey (Speeding), who is supporting Cindy Roberts in her interlocutory application; Jennifer Smith; and Michael Ryan are all part of the same family.

…

What Cindy Roberts is questioning now has already been dealt with through the research and decision-making process of the group. Cindy Roberts has had ample time to oppose certain members of the group. They had ample time to do that from 2013 and never put the question forward or protested. Cindy Roberts has only taken an interest after we have become aware of certain benefits that will flow to Widjabul Wia-bal.

…

Time after time after time, the proposed ILUA between the State and the Applicant has been explained to the claim group and the process.

I don’t agree with what is being said about there not being informed consent. My elder sister Lorraine always gets notification to attend meetings. She’s in her 70s. She has had little to no education and yet she can sit at the table and understand what is being said. As can others in her position. If people don’t understand, they can ask questions. Lorraine for example doesn’t only have a voice of her own. She has family sitting around at the table and if she’s not sure, she’ll ask family.

…

There is sufficient representation of family members at claim group meetings. I have also spoken with other family groups about what is going on at the meetings. There is a sharing of information at the claim group meetings between families. NTSCORP also encourages people to speak and sometimes I think are too flexible because everyone is given an opportunity to speak.

When a point is being made to the meeting, the NTSCORP solicitors explain what is meant in simple English. If something has a legal term, the solicitors then take it upon themselves to explain exactly what it means…

I don’t agree that Elders haven’t been consulted and are disrespected. As Applicant members, we have a duty to our Elders to ensure they are the first to be informed. I always do that and I understood that the other Applicants were doing that too.

…

This is what native title means to me: it’s the recognition and acknowledgement of us. We exist and have rights. It’s about our rights now and forever. This is what they are undermining. Through their inappropriate behaviour, what they are saying is causing so much stress and will cause damage into the future. They are trying to destroy this claim.

3.2.4    Roslyn Sten

…

It was my understanding in 2013 that we laid this issue about the apical ancestors included on the claim to rest and we all moved together as one group. Even though they didn’t like others coming in, they had to accept that we were part of the bigger picture.

At the 2013 meeting, it was made very clear how the research was done to identify the correct apical ancestors. We all voted, and we voted for it, everyone in that room, and there was a good representation from all families. All those heads would have been counted. Steven Roberts was at that meeting. He went and got in his car and run around and got all the younger ones to come and sign up.

The claim group description is a fair representation of who is related and who has rights to Country according to our traditional law and custom.

There’s been a good representation of the families at the claim group meetings, especially over the past 6 – 8 months.

…

The people who are questioning things now, it's not the whole Roberts family. It’s a small minority…

3.2.5    Tracey King

…

The previous Widjabul Aboriginal People claim was discontinued in 2013. I remember it clearly. It was discontinued when the new claim was lodged because it wasn’t true and correct with the apical ancestors. There wasn’t enough representation from enough family groups outside the descendants of Bob de Bobbin and Johnny Bob that had a connection through bloodline and kinship to Widjabul Wia-bal Country. There were other apical ancestors that hadn’t been included and should have been included like William ‘Billy’ King.

…

I remember there was a meeting at Lismore Workers Club in Goonellabah about the previous claim and the way forward in 2012 and then there was a facilitation and assistance request we all signed to go to NTSCORP to help with the research. There was a unanimous decision to move forward together at that meeting. The general consensus of all the group was ‘we want this and want to take if forward’.

All the Elders (including Uncle Goongie (Murray John Roberts), Aunty Junie Gordon, Leonie Nowta Roberts, Ros Sten, Queenie Anne Speeding, Uncle Claude (Barry) Roberts wanted to move forward together with everyone.

At the meeting in 2012, all of the families were represented. There was a decision to move forward together with the list of apical ancestors who appear on the claim now – not just the one family. We were all on the same page and it was all about togetherness.

Then we had the big authorisation meeting at the YWCA in Goonellabah in 2013 with the current claim group description that was authorised by the claim group. At this meeting, the decision-making process was also decided on and the Applicant were authorised by the claim group to represent them. The Applicant were authorised to represent everyone, not just their own family.

Uncle Gilbert [King] went to his grave fighting for native title for everybody. He was happy with the apical ancestors that are listed on the claim now. We’re all connected. We are the right people for Country, by which I mean we are connected culturally and by kinship and bloodline ties to Widjabul Wia-bal Country.

…

What Cindy [Roberts] is saying now about bloodline is the same issue that was resolved ten years ago. The fact of the matter is that when we lodged this claim and until very recently, this same group were saying ‘we are all one family’. To pull this sort of stunt now; it’s disrespecting us.

They’re trying to say they’re the only ones. They’re not. That was all sorted out in the previous claim.

It was dealt with as far as everyone was concerned. It was all dealt with. I don’t know what their problem is but Cindy [Roberts] has only been raising issues at the last minute once we started learning about some of the benefits associated with the consent determination and with the ILUA. She didn’t show interest before.

…

…

Cindy [Roberts] and the people in support of her application, if they say they’re not informed, that’s because they actually removed themselves from the process and did not contribute. If they don’t come to meetings, that’s because they choose not to come to meetings. They can also ask questions of the Applicant or of NTSCORP. They had the opportunity to contribute and be involved over and over again. Everyone is notified of the meetings.

The decision-making process at each of the claim group meetings has been very rigorous. How that process was communicated to the claim group was not in technical terms. At each meeting, the process is explained by NTSCORP over and over again and then we discuss it so that everyone can understand and agree. Then we do the resolutions.

NTSCORP and our legal representatives don’t speak in legal technical jargon. If there is any sort of jargon used, it’s put in clear English so everyone at the meeting can understand it. If they don’t understand it, we ask questions and it is explained to us. We have some robust discussions.

The decision making process shouldn’t be a traditional process. We don’t have an appropriate traditional decision-making process for these meetings. Traditionally men do Men’s Business and women do Women’s Business but that’s not appropriate for native tile [sic] decisions because everyone needs to be involved. The claimant group at every meeting adopted the agreed decision-making process. It was discussed at every meeting.

The other thing is there were open discussions over and over about each issue on the agenda of the meetings, especially of the terms of the ILUA, and of the consent determination.

The Applicant and the Claim Group have been dedicated and committed to negotiating with the State about the ILUA. The Applicant would negotiate with the State. That information was shared with the Claim Group at Claim Group Meetings over the past 12–18 months. At each claim group meeting, there would be an update on the progress of the ILUA and we would discuss any issues arising from the negotiations. Then that’s where the decision-making process would happen with the claim group. The claim group would have input and get advice from the legal representation and then the claim group would instruct the Applicant on the way forward.

At every claim group meeting there is also the opportunity for questions from the floor. There have been robust discussions including a few arguments. People voice their opinion at meetings but don’t get shut down by NTSCORP or the Applicant. There are meeting procedures and we have the code of conduct read out at the start of each meeting.

Plus, at every claim group meeting, NTSCORP always gives the option to have one-on-one conversations with individuals who weren’t sure about things.

My family including myself, Uncle Reggie [King], my mother Lil King and my uncles and aunties, we fully endorse and support the claim and the ILUA. But most importantly, we fully support and endorse NTSCORP. The majority of the group feels that way. I have discussed this with other claim group members including Ashley Moran who I saw yesterday.

…

I honestly think that Elders were represented at all the claim group meetings, including Aunty Queenie Anne [Speeding], Uncle Reg [King], Uncle Goongie [Roberts] until more recently, Uncle Claude [Barry] Roberts, Ros Sten. We have always had Elders present from all the families.

Prejudice

To me, the delay that this interlocutory application has caused and the impact it has had is devastating. We have lost our key warrior, Uncle Gilbert [King], and other Elders have passed away like Uncle Johnno Morrissey - they’re all gone.

…

My main concern is that Cindy [Roberts] and this group of people are jeopardising the future. This isn’t about me. This is about our grandchildren, our great-grandchildren and the future generations.

3.2.6    Simon Correy

59    The expert evidence of Mr Correy, anthropologist, included the following in his affidavit of 27 September 2022:

I presented my preliminary anthropological research in relation to the proposed claim group description for the Application at the Widjabul Wia-bal authorisation meeting convened on 11 and 12 June 2013 at the YWCA Australia Northern Rivers at Goonellabah NSW.

…

I presented a comprehensive summary of my anthropological report for the Application to the Widjabul Wia-bal native title claim group at the Widjabul Wia-bal native title claim group meeting convened on 31 March 2014 and 1 April 2014 at the YWCA Australia Northern Rivers at Goonellabah NSW, including a discussion of the native title claim group description.

I gave a research presentation to the Widjabul Wia-bal native title claim group at a Widjabul Wia-bal native title claim group meeting convened on 4 September 2020 at the Lismore Workers Club at Lismore NSW, including a discussion of the native title claim group description for the Application and claimant genealogies.

I have discussed the native title claim group description for the Application and the description of native title holders for the proposed consent determination of the Widjabul Wia-bal Application, including genealogical matters and matters of connection to country, with the Widjabul Wia-bal native title claim group and with smaller groups of and individual members of the Widjabul Wia-bal native title claim group, at various times between 2013 and 2022, including at the request of individual members.

…

In my opinion the persons who hold native title rights and interests in the land and waters subject to the Application are the Widjabul Wia-bal, who comprise all the descendants of the following apical ancestors:

(a)    Bob de Bobbin (also known as Bob Deruhbin), died 1912 at Lismore;

(b)    Topsy Brown (also known as Topsy Larken), born 1849, died 1919 at Dunoon;

(c)    Johnny Bob (also known as Bob Roberts), born circa 1820;

(d)    William “Billy” King, born 1878 at Lismore;

(e)    George Williams, born 1870;

(f)    Kitty Barry, born 1841, died 1911 at Blakebrook; and

(g)    John “Jack” Kapeen (also known as John “Jack” Capeen), born circa 1860

including persons adopted or incorporated into the families of those persons and who identify as, and are accepted as, Widjabul Wia-bal in accordance with Widjabul Wia-bal traditional laws and customs (and the biological descendants of those adopted or incorporated persons).

60    In a further affidavit of 28 September 2022, Mr Correy said that in an earlier affidavit (since removed from the Court file in accordance with an order I made) he had mistakenly identified John “Jack” Kapeen (also known as John “Jack” Capeen), born circa 1860 as an apical ancestor of various claim group members. He explained that those claim group members descended from another Aboriginal person of the same name, being “Jack Kapeen”, and he mistook that reference for John “Jack” Kapeen (also known as John “Jack” Capeen), born circa 1860 when preparing his first affidavit. He explained that:

In my opinion “Jack Kapeen” is not the same person as John ‘Jack’ Kapeen (also known as John ‘Jack’ Capeen), born circa 1860, who is the apical ancestor listed in Schedule A of the Application and who in my opinion is an apical ancestor for the Widjabul Wia-bal…

3.3    For the Attorney General

61    Dominic Smith, a solicitor employed in the office of Karen Smith, Crown Solicitor (NSW), gave an affidavit explaining that:

Between 19 and 22 August 2022, the Widjabul Wia-bal Applicant authorised the Indigenous land use agreement (“ILUA”), the s. 87 Agreement and the proposed determination of native title.

The brief to the Attorney General was approved within the Department of Planning and Environment, and was in a position to be provided to the Attorney General’s office on 30 August 2022, and would have been provided to the Attorney General’s office on that date but for the Application for Joinder.

From the First Respondent’s side, the following persons must execute the ILUA before the Attorney General can execute the ILUA and approve the s. 87 Agreement:

(a)    the Minister for Lands and Water, the Minister Administering the Crown Land Management Act 2016 (NSW);

(b)    the Minister for Agriculture, being the Minister Administering the Fisheries Management Act 1994 (NSW) and the Minister Administering the Forestry Act 2012 (NSW);

(c)    the Minister for Environment and Heritage, being the Minister Administering the National Parks and Wildlife Act 1974 (NSW);

(d)    the Secretary of the Department of Planning and Environment;

(e)    the Chief Executive Officer of the Forestry Corporation of NSW; and

(f)    Chief Executive Officer of the Local Land Service.

62    Mr Smith said that:

Briefs to the Ministers and the Attorney General cannot be progressed from the relevant Departments to Ministerial offices in circumstances where there is a potential challenge to the authorisation of the ILUA and it is unclear whether the matter will proceed to a consent determination (as in this case). The progression of the briefs is necessarily delayed by Ms Roberts’ application, pending resolution of same.

…

I have previously been advised that the instructions from the First Respondent to the Department of Planning and Environment have been to do everything reasonably possible to ensure the consent determination proceeds on 4 November 2022, if not earlier. However, in the current circumstances, assuming the consent determination was to proceed, the Department of Planning and Environment have instructed me to consider whether the prudent course would be to defer the hearing for the consent determination by one or two weeks.

63    To the extent possible recognising confidentiality requirements, I have been informed at case management hearings that:

(1)    for benefits as proposed under the ILUA to be transferred to a body on behalf of the claim group, the State of NSW requires the transfer to be completed by 31 May 2023;

(2)    this requires the ILUA to be registered under the NTA before that date (see Subdivs B–E, Div 3 in Pt 2 of the NTA);

(3)    allowing for notification requirements in relation to ILUA, the consent determination hearing, the need to provide the Court with the relevant documents and the steps required to brief all relevant NSW signatories to the various agreements, the last date by which the briefings may be provided to decision-makers within the State is 5 October 2022. If the interlocutory application for joinder of Ms Roberts is not determined (and dismissed) by that date, it will not be possible for the agreed benefits under the ILUA to be transferred by 31 May 2023 (as there will be no possibility of a consent determination hearing in 2022), in which event they are no longer available for transfer; and

(4)    the benefits to be transferred under the ILUA are significant/substantial to the Widjabul Wia-bal people.

64    For these reasons, I agreed that the interlocutory application had to be heard and determined urgently after receiving the report from Registrar Stride. The concern is that delay will mean that even if the interlocutory application for joinder is dismissed, the claim group will be denied the benefits they have negotiated so long and so hard for with the State of NSW, including the prospect of a consent determination in 2022 (or, perhaps, at all in that event). If the interlocutory application for joinder is allowed, then the further progress of this matter is unknown at present.

4.    SUBMISSIONS

65    In written submissions Ms Roberts submitted that:

(1)    her interest as a member of the putative rights holding group is clearly affected by a consent determination and an ILUA regulating her Native Title rights. If she opposes the proposed determination and ILUA or is uncertain about whether she supports them due to insufficient and inadequate consultation, she ought to be joined so these matters can be resolved by agreement or judicial determination;

(2)    the proper identification of the native title claim group is of central importance in any determination application: Landers v State of South Australia [2003] FCA 264; (2003) 128 FCR 495 at [35];

(3)    in finding that a dissentient claimant has an interest sufficient for joinder, Ryan J observed in Bidjara People (No 2) v State of Queensland [2003] FCA 324 at [7] that “it would also lead to injustice if the dissentient members were thereafter denied a voice in the determination of the claim.” Given Ms Roberts complains of insufficient consultation and being unable to access important information and documents, it appears she will be denied a voice in the determination of the claim if not joined; and

(4)    any prejudice suffered by the applicant resulting from joinder is a consequence of its failure to address Ms Roberts’ concerns in a timely manner.

66    Ms Goodchild of counsel appeared for Ms Roberts at the hearing of the interlocutory application. Ms Goodchild (correctly) focused on the primary issue of the composition of the claim group which is fundamental to a determination of native title. Ms Goodchild submitted that the last-minute error acknowledged by Mr Correy, after so many years, indicated that Ms Roberts’ concerns about the constitution of the claim group, specifically the inclusion of John “Jack” Kapeen (also known as John “Jack” Capeen), born circa 1860 and George Williams, born 1870 were real and substantial. This error had existed since 2013. Ms Roberts and others had attempted to raise the error and have it corrected. The fact that the applicant had not resolved the matter was the delay of the applicant and not Ms Roberts. Ms Roberts also instructed that, contrary to Mr Correy’s revised opinion, there were not two people both named “Jack” Kapeen. There was one person and he was not Widjabul Wia-bal. Mr Steven Roberts also said George Williams was not Widjabul Wia-bal. Further, Ms Sten did not give evidence that her ancestor John “Jack” Kapeen (also known as John “Jack” Capeen), born circa 1860 was in fact Widjabul Wia-bal. Ms Goodchild stressed that these issues are of fundamental importance and the opportunity to resolve them should be required by joining Ms Roberts as a party.

67    For the applicant it was submitted that:

(1)    joinder of Ms Roberts is opposed as she is a member of the claim group and her interests are represented by the applicant;

(2)    processes for decision making at Widjabul Wia-bal claim group meetings are, and have been, a matter for those attending the meeting. Each claim group meeting, including meetings at which the applicant has asked the claim group to authorise certain decisions, has considered and specified the processes for decision making to be followed at the meeting;

(3)    the applicant acknowledges that some claim group meetings have been distressing and difficult while important issues have been discussed and important decisions made. However, such difficulties of themselves do not necessarily mean that the decisions of the meetings have not been properly made;

(4)    the claim group has authorised a proposed consent determination on the basis of the genealogies;

(5)    some of the joinder affidavits include assertions about the conduct of NTSCORP and the legal representatives of the applicant which are scandalous and are rejected by the applicant;

(6)    if dissatisfied with the representation of claim group by the applicant a member of the clam group must follow the procedure laid out in s 66B of the NTA to replace the applicant. Alternatively, if such a person claims different native title rights and interests from those asserted in the claimant application, the person may bring their own claimant application;

(7)    the intra-mural allocation of native title rights and interests among the Native Title holding group is a matter for the group and their prescribed body corporate. That allocation is not affected by a determination that native title rights and interests are held at common law by a native title holding group described in the determination. Instead, it is the role of the prescribed body corporate to detail ‘internal’ issues relating to the native title holders, and to identify which particular group can exercise what particular rights: Gumana v Northern Territory of Australia [2005] FCA 50; (2005) 141 FCR 457 at [138]–[140];

(8)    if Ms Roberts has an interest that might be affected by a determination in the proceedings (which the applicant does not accept), the Court has a discretion whether to join her to the proceedings. The onus is on Ms Roberts to satisfy the Court that it is in the interests of justice to do so. Relevant considerations (including those weighing against joinder of Ms Roberts) include:

(a)    the objects and purposes of the NTA and the overarching purpose of civil procedure and practice expressed in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) which includes the just determination of disputes efficiently, in a timely manner, and at a cost that is proportionate to the importance and complexity of the matters in dispute;

(b)    proceedings for a determination of native title are proceedings in rem: they bind non-parties. It is also 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;

(c)    a party joined would also be able to protect the native title rights and interests they claim to hold from erosion, dilution, or discount by the process of the Court determining the claims of an applicant;

(d)    a dissentient member of a claim group will only be permitted to become a respondent to a determination in rare or exceptional circumstances;

(e)    whether the interest asserted can be protected by some other mechanism;

(f)    whether the applicant for the determination would be significantly prejudiced if the party applicant is joined;

(g)    the history of the proceedings;

(9)    as Bromberg J said in Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia [2022] FCA 114 at [48]:

…the Act has established a scheme for the representation of claim group members in a native title determination proceeding. The existence of that scheme is generally inconsistent with the separate participation of a group member as an individual party. As Mansfield J recognised in Starkey [Starkey v South Australia [2011] FCA 456; (2011) 193 FCR 450] at [55], s 251B of the Act requires authorisation in accordance with traditional law and custom or according to a decision-making process agreed to by the claim group. Section 251B does not require unanimity among members of the claim as part of that process. To the contrary it contemplates that in many cases there may be dissent among members of the claim group. Those who disagree will nevertheless be bound by the decision of the claim group as a whole in accordance with the Act. If dissatisfied members of the claim were routinely afforded the elevated status of a respondent to a proceeding in order to agitate interests adverse to the will of the claim group as a whole, including by delaying the proceeding or withholding their consent to a negotiated outcome, it would undermine the representative function of authorisation under the Act: see generally Starkey at [55]–[56].

(10)    it is not appropriate, or fair on the applicant or the other members of the claim group, for Ms Roberts to seek, at this late stage, to second-guess decisions legitimately and properly made by the applicant and the claim group. In particular:

(a)    joinder would jeopardise the making of a consent determination in 2022 and, as submitted for the Attorney General “without breaching settlement privilege it is necessary to indicate that the registration of the [I]ndigenous land use agreement is time critical. Widjabul Wiabal will suffer extreme prejudice if the [I]ndigenous land use agreement is not registered in the time agreed between the Applicant and the [Attorney General]”;

(b)    if Ms Roberts is joined to the proceedings, presumably action would have to be taken by the applicant, the other respondents and the Court to address her interests, whether by way of mediation or via a contested hearing. This would require further work to be done, as well as additional time and resources;

(c)    the personal toll on members of the applicant and the claim group of the further delay and the extra work consequent on the joinder should be taken into account – “[t]imeliness, efficiency and proportionality are part and parcel of just outcomes. When justice is delayed, it is also denied”: Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604 at [12];

(d)    joinder of Ms Roberts as a respondent would have particular impacts on the applicant and the claim group, including that more elders may pass away before the determination, and further delay in the determination will make members of the claim group more wild and frustrated;

(e)    Ms Roberts has known since the native title determination application was authorised on 11 and 12 June 2013 that the Widjabul Wia-bal claim group was defined by reference to descent from particular named apical ancestors; and

(f)    the joinder application was not made until 24 August 2022 despite:

a.    The claim group description being discussed by the claim group at a meeting on 31 March 2014 and 1 April 2014;

b.    The notification of the application in the period between 20 November 2013 and 19 February 2014;

c.    Discussion by the claim group at a meeting on 20 May 2016 about whether Widjabul Wia-Bal traditional laws and customs include kinship processes of adoption (‘rearing up’) and incorporation;

d.    Simon Correy, anthropologist, giving a research presentation to the claim group on 4 September 2020, and discussing the claim group description with the claim group and members of the claim group at various times between 2013 and 2022;

e.    Incorporation of the Widjabul Wia-bal Elders Aboriginal Corporation on 18 January 2021;

f.    The order of Court dated 16 December 2021 listing the proceedings for determination on 4 November 2022;

g.    Her appearance before the Court on 16 December 2021 when she was informed by the Judge that she would have to file an interlocutory application and evidence for the Court to be in a position to respond to her concerns;

h.    The orders of the Court dated 11 July 2022 that:

1.    Any interlocutory application to join as a party to the proceedings pursuant to s 84(5) of the Native Title Act 1993 (Cth) is to be filed by 22 August 2022.

2.    The Court Registry is to serve this order on Ms Cindy Roberts within 3 days of the making of this order at an address to be agreed with Ms Roberts; and

i.    Notification on 22 July 2022 of a meeting of the claim group on 19 August 2022 for it to authorise the agreement under s 87 of the NTA and the proposed consent determination.

68    During the hearing, in answer to Ms Goodchild’s submissions, it was submitted for the applicant that Mr Correy’s error was not about the identity of any apical ancestor of the Widjabul Wia-bal. It was that he had mistakenly identified John “Jack” Kapeen (also known as John “Jack” Capeen), born circa 1860 as the ancestor of a number of descendants of this John “Jack” Kapeen when, in fact, they were descendants of the other “Jack Kapeen” but were Widjabul Wia-bal through other descent lines. The error was not fundamental. There was also evidence, of Ms Sten in particular, of the connection between John “Jack” Kapeen (also known as John “Jack” Capeen), born circa 1860 and the claim area. Further, the focus on John “Jack” Kapeen (also known as John “Jack” Capeen), born circa 1860 and George Williams as not being Widjabul Wia-bal had only recently been raised, the applicant had no opportunity to prepare and adduce additional evidence focusing on their status as apical ancestors. Mr Correy’s research work up to and from 2013 was extensive, far exceeding that shown in his affidavits. Most importantly, the whole issue of the apical ancestors had been resolved by the claim group by the discontinuance of NSD6019/2001, the negotiations between 2003 and 2012, and the filing of this claimant application.

69    The Attorney General submitted:

(1)    the Attorney General neither consents to nor opposes the application for joinder as this is considered to be an intra-claim group issue (between Ms Roberts and the applicant);

(2)    in Wilson on behalf of the Wirangu People v South Australia [2022] FCA 829 at [19] O’Bryan J said:

In assessing where the interests of justice lie, regard should be had, among other things, to the objects and purposes of the Native Title Act and the overarching purpose of civil practice and procedure expressed in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) which includes the just determination of disputes efficiently, in a timely manner, and at a cost that is proportionate to the importance and complexity of the matters in dispute: Kum Sing [Kum Sing on behalf of the Mitakoodi People #5 v State of Queensland (No 2)[2022] FCA 248] at [17]. A relevant consideration to the interests of justice is whether those seeking to be joined have provided a satisfactory explanation for any delay connected with their application and the prejudice that may be caused to existing parties to the proceedings if they are joined as a party: Barunga [v State of Western Australia (No 2) [2011] FCA 755] at [163] and [219] per Gilmour J; Jacob v State of Western Australia [2014] FCA 1106 at [4] and [51] per McKerracher J; Allen on behalf of the Nyamal People #1 v State of Western Australia [2018] FCA 320 at [56] and [75] per Barker J; Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369 at [23]–[27] per Rangiah J; Foster on behalf of the Gunggari People #4 v State of Queensland [2019] FCA 1300 at [9]–[12] per Reeves J.

(3)    “[c]oncerns about intramural matters do not ground an interest of the type that justifies a member of the claim group remaining a respondent to the application”: TR (Deceased) on behalf of the Kariyarra-Pipingarra People v State of Western Australia [2016] FCA 1158 at [36] per North ACJ. These concerns would equally apply to a joinder application: Harrington-Smith;

(4)    the composition of the claim group is not an intramural matter: Kariyarra-Pipingarra People at [37];

(5)    there has been substantial delay in the joinder applicant making the application. The Widjabul Wia-bal claimant application was filed on 24 June 2013 and was notified between 20 November 2013 and 19 February 2014. Any issue in relation to the composition of the claim group existed then, as it does now. No explanation has been provided for the delay in making this application;

(6)    since August 2020, the applicant and the State of NSW have negotiated a comprehensive ILUA. The Attorney General was advised by the applicant that on or around 22 August 2022, this agreement was authorised by Widjabul Wia-bal; and

(7)    the proposed determination of Native Title attached to the s 87 agreement, which is yet to be filed, proposes that the determination of Native Title comes into effect on the day that the ILUA is registered. Further, “…the registration of the [ILUA] is time critical. Widjabul Wia-bal will suffer extreme prejudice if the [ILUA] is not registered in the time agreed between the Applicant and the [Attorney General]”.

5.    CONSIDERATION

70    The Preamble to the NTA explains that in enacting that law the Parliament of Australia took into account that:

The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement.

They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.

As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.

71    The Preamble continues:

The people of Australia intend:

(a)    to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

(b)    to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

72    This acknowledged dispossession of Aboriginal peoples and Torres Strait Islanders from their land, the failure of our country to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands, and the disadvantage of Aboriginal peoples and Torres Strait Islanders, involves ongoing trauma to both individuals and communities. The effects of these unrectified past injustices are exposed and exacerbated in some native title matters. They manifest in circumstances such as the present case. In areas of Australia where Aboriginal people suffered the greatest dislocation, the very process the NTA requires of proving who you are, who you are descended from, where your country is, the continuity of the traditional laws and customs of your people, translating your rights and responsibilities under those traditional laws and customs of your people into categories the common law of Australia will recognise, and negotiating with multiple others the recognition of those rights and interests which your people have held for millennia, can be exhausting, debilitating and re-traumatising. It can exacerbate the splintering effects of the dispossession of people. It can re-open old wounds. It can generate and reinforce community dysfunction. These are unintended consequences. They do not always arise. The process under the NTA can be empowering and, to some extent, can ameliorate and lighten the burden of the past. But the process can also magnify the harm done by the very past injustices the NTA seeks to redress. When we see this evidence of community and individual pain, this anguish, this grief, particularly when manifested as community discord, we should know and understand that we are seeing the effects of the past in the present. We should acknowledge this pain and the sources from which it springs. In a case such as this, where the views on all sides are genuinely held, we should recognise and accept that while the interlocutory application for joinder must be determined in accordance with the interests of justice as they appear in all of the circumstances, we need to tread as lightly as we can and to try to do no more harm.

73    The ideal would be for the claim group itself to bring all of its members together with the objective of rendering the interlocutory application for joinder unnecessary. But that is not practically possible before 5 October 2022, and it was apparent from the submissions for the Attorney General that the only possibility for leeway in that date was for the Court to reduce the time between the filing of the proposed consent determination documents and the proposed consent determination hearing. In any event, as I discussed at the hearing of the interlocutory application, the Court will continue to facilitate discussions between the members of the claim group to the extent reasonably practicable.

74    If Ms Roberts has an interest that may be affected by the determination (an issue I need not decide), the unavoidable fact is that the Widjabul Wia-bal People have invested too much time and effort over 20 years in reaching the point they have reached to be denied the opportunity for a consent determination in 2022. After an already exhausting process completed in 2013, which I infer included an exhaustive consideration and general acceptance of the apical ancestors to be identified, the claim group reached an accommodation enabling the filing of the new claimant application based on extensive anthropological research and accepted apical ancestors.

75    The Attorney General has committed substantial time and resources to determine if a consent determination recognising the Native Title rights and interests of the Widjabul Wia-bal could be achieved.

76    The Court committed substantial time and resources, particularly through the extensive mediation processes of the Native Title Registrars, to the same end.

77    By 2016, after yet more anthropological research, the claim group also accepted that kinship processes of adoption (“rearing up”) needed to be recognised in the description of the claim group.

78    It was not until December 2021 that Ms Roberts first appeared in Court to raise her concerns. While her concerns might have been raised within the claim group earlier, the applicant was entitled to consider those matters resolved by the decisions made in 2013. I also informed Ms Roberts in December 2021 that an interlocutory application for joinder and evidence would be necessary for the Court to be in a position to deal with her concerns, but no such application was made until 24 August 2022.

79    While the evidence in support of the interlocutory application ranges widely, it is sufficient to say that I am satisfied that the exhaustive and exhausting process which the Widjabul Wia-bal People have undertaken, facilitated by NTSCORP, may have involved pain and anger, but that was because difficult decisions had to be made. I am not able to accept that there has been insufficient consultation with claim group members or any material shortcomings in the processes by which the claim group has reached this point. I am not able to accept that NTSCORP has done anything other than fulfil its functions under the NTA. The adverse perceptions of some claim group members of NTSCORP seems to me to be a regrettable consequence of the difficult decisions the Widjabul Wia-bal People have had to make over such a long time to reach the point which they have.

80    It is also relevant that, despite the evidence in support of the interlocutory application raising issues about the constitution of the claim group, the Attorney General’s position is neither to consent nor to oppose the interlocutory application, on the basis of a view that these are all intra-claim group issues. This is relevant because the Attorney General is the guardian of the interests of the State of NSW in this matter. The Attorney General needs to be satisfied that there is a credible basis for the claimant application before agreeing to a consent determination: Munn (for and on behalf of the Gunggari People) v State of Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [29]–[30] per Emmett J. The Attorney General, I infer, does not take the view that the issues raised about the composition of the claim group undermine the existence of credible evidence that the claim group is appropriately identified. This accords with my inference that the claim group description, which has been in place since 2013, reflects a detailed consideration in and from 2013 of the right people for the country.

81    I have given what has been described elsewhere and in other contexts as “anxious consideration” to the issues to which the interlocutory application gives rise. I consider that the interests of justice demand that the interlocutory application be dismissed. Ms Roberts and those members of the claim group who support her cannot be permitted to derail the process leading to a consent determination hearing in 2022. As I have said, I do not doubt the genuineness of the concerns raised. But ultimately the applicant represents the claim group. The claim group decided how it made decisions. It made decisions. The fact that some people strongly disagree with those decisions (whether their disagreements are recent or long-standing) is regrettable. But the Court should do what it can to ensure that the decisions which have been made can be implemented. For the Widjabul Wia-bal People not to have the opportunity for a consent determination in respect of their native title rights and interests in 2022 would be profoundly wrong.

82    For these reasons, on 30 September 2022, I dismissed the interlocutory application. It is now necessary for the matter to be listed for a consent determination hearing in December 2022 on country. Arrangements will be made to that end.

Associate:

Dated:    5 October 2022

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