Federal Court of Australia
Douglas on behalf of the Kabi Kabi First Nation Traditional Owners Native Title Claim Group v State of Queensland [2023] FCA 615
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Mr Luke Barrowcliffe be joined as a Respondent to the proceedings pursuant to s 84(5) of the Native Title Act 1993 (Cth) to the extent that he asserts an interest in the area bounded in pink on the map in Annexure “LB1” on page 31 of the affidavit of Luke Barrowcliffe filed 7 March 2023.
2. Ms Katherine Barrowcliffe be joined as a Respondent to the proceedings pursuant to s 84(5) of the Native Title Act 1993 (Cth) to the extent that she asserts an interest in the area bounded in pink on the map in Annexure “LB1” on page 31 of the affidavit of Luke Barrowcliffe filed 7 March 2023.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLLIER J
1 Before the Court are two interlocutory applications filed on 7 March 2023 by Luke Barrowcliffe and Katherine Barrowcliffe (prospective joinder respondents) in proceeding QUD 20 of 2019 Michael Douglas & Ors on Behalf of the Kabi Kabi First Nation Traditional Owners Native Title Claim Group v State of Queensland (Kabi Kabi Claim).
2 Mr Barrowcliffe seeks the following orders:
1. That Mr Barrowcliffe be joined as a Respondent; and
2. The matter be referred to mediation by a Judicial Registrar; and
3. Such orders as the courts sees fit to make.
3 Ms Barrowcliffe seeks the following orders:
1. Leave of court is granted for this interlocutory application.
2. Katherine Barrowcliffe is joined as a respondent party to this application.
3. Any other orders the court deems appropriate.
4 Fundamentally, the prospective joinder respondents contend that an area to the south of a line from Mount Bauple to Double Island Point, currently the subject of the Kabi Kabi Claim area, has sites that are sacred to the Butchulla People and they have custodial roles and responsibilities in respect of those sites. For convenience, I will refer to that area as the disputed area.
5 The interlocutory applications were opposed by the Native Title Applicant to the Kabi Kabi Claim (the Kabi Kabi Applicant).
Background
6 It is helpful to set out relevant background.
7 The prospective joinder respondents are members of the Butchulla people. On 13 December 2019 the Butchulla People received a determination of native title in Cronin on behalf of the Butchulla People (Land and Sea Claim #2) v State of Queensland [2019] FCA 2082 (Cronin Determination). The area the subject of the Cronin Determination shares the Northern boundary of the Kabi Kabi Claim area.
8 The affidavit of Mr Michael Allbrook filed 24 March 2023 helpfully summarises much of the background.
9 On or about 12 November 2005 a meeting was held between members of the Butchulla People and the Kabi Kabi People. Importantly, that meeting resulted in boundaries being agreed, as well as there being agreement reached in relation to areas where cultural heritage matters would be shared. This agreement was documented in a memorandum of agreement, alternatively referred to as a memorandum of understanding (the MOU).
10 There have been a number of Butchulla native title claims, including claims filed in 1997, 2005 and 2006. The Butchulla People obtained native title determinations in:
QUD 287 of 2009, determined in Bronwyn De Satge on behalf of the Butchulla People #2 v State of Queensland [2014] FCA 1132; and
QUD 460 of 2018, determined in Cronin.
11 Mr Allbrook referred to the authorisation meeting held for the Cronin Determination on 12 October 2019 for the purpose of approving a s 87 agreement with the State of Queensland, which meeting was attended by Mr Barrowcliffe.
12 Mr Allbrook also deposed:
17. I am informed by Mr Jeff Harris, QSNTS Geospatial and Systems Support Officer, that a number of other historical claims to native title were made over the area as determined in Cronin that include:
(a) QUD6034/1999 – Gubbi Gubbi People #2 – Discontinued;
(b) QUD12/2006 – Kabi Kabi People – Discontinued;
(c) QUD136/2006 – Kabi Kabi People #3 – Dismissed; and
(d) QUD38/2008 – Gubbi Gubbi People #3 – Discontinued.
13 He gave further evidence as follows:
20. Kabi Kabi People have been seeking to have their native title rights recognised in the area of the Sunshine Coast since at least 1998, before the Kabi Kabi Claim was filed. Previous Kabi Kabi native title determination applications included:
(a) QUD6083/1998 being Glasshouse Mountain - Gubbi Gubbi was filed on 26 June 1996;
(b) QUD6043/1999 being Gubbi Gubbi #2 was filed on 24 December 1999;
(c) QUD12/2006 being Kabi Kabi claim was filed on 13 January 2006;
(d) QUD65/2006 being Kabi Kabi #2 was filed on 24 February 2006;
(e) QUD136/2006 being Kabi Kabi #3 was filed on 7 April 2006;
(f) QUD38/2008 being Gubbi Gubbi #3 was filed on 18 February 2008.
21. I have reviewed the native title claimant applications filed in the Court for each of the claims referred to in paragraph [20] and it is my understanding that since the Kabi Kabi #2 native title claimant application was filed on 24 February 2006, except for Kabi Kabi #3, the northern boundary of the Kabi Kabi Claim and the southern boundary of the Butchulla Claim, being a straight line from Mt Bauple to Double Island Point, has not changed.
14 Mr Allbrook deposed that a previous iteration of the Kabi Kabi Claim (being QUD280 of 2013) was authorised on 3 November 2012 at a meeting held in Gympie, after which the native title claim application was filed on 31 May 2013. The prospective joinder respondents did not apply to join during the notification period for this claim.
15 Mr Allbrook deposed that on 29 November 2019, QUD 280 of 2013 and QUD 908 of 2016 were combined to create the Kabi Kabi Claim.
16 The Kabi Kabi Claim has been amended on numerous occasions. On 11 December 2018 and 16 April 2019, the Kabi Kabi Claim was amended to include changes to the identification of boundaries, reflecting the combination of the Kabi Kabi claim with the Undambi area. Relevant amendments to the Kabi Kabi Claim were made following authorisation meetings advertised in the Courier Mail, the Sunshine Coast Daily and the Koori Mail. Subsequently the Kabi Kabi Claim was amended on 27 May 2020 and 7 October 2021 to reduce the area claimed. Mr Allbrook deposed:
35. Based on my review of the documents filed in the Court, each of the times the Kabi Kabi Claim was notified in [24], [31] and [32], the northern boundary remained the same, being the straight line bordering Cronin.
17 The most recent iteration of the Kabi Kabi Claim was filed on 1 June 2023. The area the subject of the claim was not however altered from that before the Court at the hearing of the joinder application.
18 Mr Allbrook deposed that the Kabi Kabi Claim has been in active case management since around 2016, and since 29 September 2017 has otherwise progressed towards a consent determination. As at the date of Mr Allbrook’s affidavit, the only steps which remained in relation to the implementation of the timetable related to the authorisation of the s 87A agreement and Tenure Resolution Indigenous Land Use Agreement, filing of submissions and setting a date for the consent determination hearing. Mr Allbrook also deposed that in preparation for the consent determination hearing, the Kabi Kabi People had prepared to nominate an entity to be the prescribed body corporate upon a determination of native title being made, and that significant work was done to establish that prescribed body corporate.
RELEVANT EVIDENCE
19 The prospective joinder respondents relied on the following affidavits:
(1) Affidavits of Luke Barrowcliffe filed on 7 March 2023, 16 March 2023 and 5 May 2023; and
(2) Affidavits of Katherine Barrowcliffe filed on 7 March 2023, 16 March 2023 and 5 May 2023.
20 The Kabi Kabi Applicant relied on the following affidavits:
(1) Affidavit of Jeffery Graham Harris filed on 23 March 2023;
(2) Affidavit of Michael David Frith Allbrook filed on 24 March 2023;
(3) Affidavit of Kristen Margaret Hodge filed on 7 April 2023; and
(4) Affidavit of Timothy John Wishart filed on 5 May 2023.
21 It is helpful to have regard to this evidence.
Evidence of the Prospective Joinder Respondents
Mr Luke Barrowcliffe
22 In his affidavit filed 7 March 2023 Mr Barrowcliffe deposed, in summary:
He was the Tharamine Wonamutta (Little Cleverman) of the Wonamutta Clan of the Butchulla People and a Butchulla Traditional Custodian with particular traditional rights and responsibilities in relation to the southern part of Butchulla mainland and sea country. These included the right to speak for this part of Butchulla country, and the responsibilities to protect, maintain and preserve the Butchulla People's sacred and significant sites in the southern part of Butchulla mainland and sea country and their associated ceremonies.
He knew from knowledge passed to him by his elders that the Butchulla People's two consent determinations did not include all the land and waters of the Butchulla People and that some of the southern part of the Butchulla mainland land and sea, to which he held traditional rights and responsibilities, was in the disputed area.
He had marked a map “LB1” captioned “Additional Butchulla Country” based on what he had been told and shown by the late Aunty Olga Miller, a Butchulla elder, showing an area located within the Kabi Kabi Claim area adjoining the southern boundary of the Cronin Determination area(the disputed area).
A further map captioned "Additional Butchulla Country Cultural Heritage Values" “LB2” showed the locations of these sites as well as traditional pathways and Duramboi's Clan Land, all of which were within the disputed area.
The map captioned "Cultural Story Artworks & Publications” by NaiNai Bird & Luke Barrowcliffe “LB3” showed the locations of places referred to or represented in the publications or artworks of Ms Barrowcliffe (also known as Nai Nai Bird) and himself.
Should a determination of native title be made in the Kabi Kabi Claim, his spiritual attachment to this part of his country would be profoundly harmed and he would lose all the customary rights, interests, and responsibilities that he had inherited through his descent from his Butchulla ancestors.
His application to join as a respondent to the Kabi Kabi Claim was late because he only recently became aware that he could make this application.
Katherine Barrowcliffe also has Traditional Custodian responsibilities and obligations in relation to the Butchulla country that is within the disputed area.
Materially, he deposed:
13. Before the Butchulla People Land and Sea Claim #2 was determined my mother and I and other Butchulla persons informed QSNTS that there was a problem with the southern boundary of the claim area, and that there were sites, land and waters beyond the Butchulla People Land and Sea Claim #2 southern boundary to which the Butchulla People held customary rights. At the time I hoped that QSNTS would take steps to rectify the situation.
14. However, QSNTS has never provided me with any practical assistance or advice in relation to addressing the concerns that I have raised with them about the southern boundary of the now determined Butchulla People Land and Sea Claim #2.
15. Neither has QSNTS taken steps to protect my customary rights and interests in relation to the area immediately south of the now determined Butchulla mainland and sea area.
16. Furthermore, on every attempt I have made to inform QSNTS of my concerns about the Butchulla country that is outside the southern boundary of the now determined Butchulla mainland and sea area, I experienced that they actually used these occasions (for example, authorisation meetings or formal correspondence) to ridicule me publicly in front of my own people, the Butchulla People, and I have observed that this also happened to other Butchulla persons who raised other concerns.
23 Mr Barrowcliffe explained his Butchulla ancestry and traditional custodianship. He explained that he was taught about pre-contact Butchulla history, culture, art and craft by the late Aunty Olga Miller. He continued:
21. … This teaching connects me to all areas of the Butchulla homeland (K'gari and the mainland and our sea country), our ancestors, and our significant sites in those regions, and to neighbouring nations. This teaching also reinforces my role and responsibilities as the Traditional Custodian of the Butchulla southern boundary region and Butchulla men's ceremonial places and their associated rituals.
24 He detailed his role as Tharamine Wonamutta, including the jurisdiction and responsibilities, which he was taught was like being the Prime Minister of the Butchulla Nation, and identified the places on the mainland which fell under the Wonamutta’s jurisdiction.
25 Mr Barrowcliffe described the traditional territory of the Butchulla Nation as follows:
30. Our consent determined country includes all K'gari (Butchulla People #2 (QC2009/004)) down to the hightide mark and the adjoining mainland and sea country (QCD2019/008 - Butchulla People Land & Sea Claim #2). However, as mentioned above at paragraph 3 and shown on the maps in annexures LB1 and LB2 these two determined areas do not comprise the entirety of Butchulla Country.
31. The area marked "Additional Butchulla Country" in LB1 and LB2 shows the Traditional Southern boundary of the Butchulla people and its location is not informed by any European records, but is based on information handed down to me by the Caboonya (Keeper of Records), Aunty Olga Miller, and other Butchulla knowledge holders. Some of this knowledge is published in books written by Aunty Olga Miller and her brother Uncle Wilfie Reeves, or can be found in books which have used some of their information or in Aunty Olga Miller's unpublished material.
32. This statement relates to the Butchulla territory shown in LB1 and the following places indicated in LB2, which are all south of the southern boundary of the determined Butchulla Land and Sea Claim #2, and are in that part of the Kabi Kabi claim area that is marked as Additional Butchulla County in LB1 and LB2: the entirety of the Tin Can Bay Inlet and all the waterways which run into the Great Sandy Strait (with particular regard to the catchments of Seary's, Cooloola, Carland, Mullins, Schnapper, Yards and Coondoo creeks); but also all the of the Bauple Mountain area, Gundiah, Gootchie, Paterson, Theebine, Gunalda, Kanigan, Glenwood, Neerdie, Toolara Forest, Cooloola Cove, Poona Lake, Double Island Point and Freshwater Lake and Creek.
33. I learnt from Aunty Olga Miller that the southern country of the Butchulla People includes the entire watershed catchments of Freshwater, Seary's, Coondoo and Gootchie creeks. I was taught by Aunty Olga Miller that other defining landscape features for the Butchulla People's mainland and sea southern boundary are the mountain ranges of Wolvi and Goomborian, all of which fall within my Wonamutta jurisdiction, and also that of my mother, because we are the Butchulla Traditional Custodians of the Butchulla mainland and sea country's southern boundary.
26 Mr Barrowcliffe referred to written accounts mentioning the clan areas and boundaries of the Butchulla Nation, and gave evidence that some of these accounts were more accurate than others. In particular I note his evidence as follows:
35. Annexed to this my affidavit and marked as LB4 is the first page of the Butchulla genesis Story "In the Beginning" retold by Moonie Jarl (Uncle Wilfie Reeves), who was Aunty Olga Miller's brother. It is published in his Legends of Moonie Jarl (1964). Aunty Olga did the illustrations for this book. "In the Beginning" and the other stories are based on what their grandfather, Willy Wondunna, the headman of the Butchulla People, told them. This written account of passed down history describes Butchulla territory as: "Fraser Island, Double Island Point, Tin Can Bay, Bauple Mountain and north to a point at the Burrum Heads" (LB4). I learnt from Aunty Olga Miller that when Uncle Wilfie or she mentioned a place name, they used the name to refer to not only the place itself, but also to its whole area, and that the place names mentioned in their written accounts refer to these place-named locality areas which she told me are all in the country of the Butchulla Nation.
36. In Fraser Island Legends (1993), there is a map captioned "Land of the Butchullas" which includes the entirety of the Bauple Mountain area and Tin Can Bay, but not the broader area of northern Cooloola and Double Island Point. Annexed to this my affidavit as LB5 is a true copy of this map. I do not know who made this map, but I know that this map does not accurately represent the entirety of Butchulla Country, as personally taught to me by Aunty Olga Miller.
(emphasis added)
27 Mr Barrowcliffe gave detailed evidence concerning creation stories of Bauple Mountain, referring to published stories of the Butchulla People, and that Bauple Mountain is a sacred mountain of the Butchulla People. Mr Barrowcliffe also gave evidence that the localities of Gunalda, Scotty Pocket, and Anderleigh are outside the area of the Cronin Determination, however they should have been included in that claim.
28 Mr Barrowcliffe gave detailed evidence concerning areas where he held primary or joint traditional custodianship, and deposed in particular:
53. … With regard to the Butchulla country that is outside the determined Butchulla areas, the areas for which I share joint custodianship with my mother include: Poona & Freshwater Lakes, the Southern Boundary and associated Traditional Freeways and Pathways. These places are all within the Additional Butchulla Country Area shown on the maps in Annexures LB1 and LB2. In addition, I am the primary and sole Traditional Custodian for Double Island Point, Cooloola Cove and Pipe Clay National Park areas, which are all in the Additional Butchulla Country Area shown in Annexures LB1 and LB2.
54. I learnt directly from Aunty Olga Miller that as Tharamine Wonamutta, my Traditional Customary Law rights and interests and responsibilities extend to and include the following places, all of which are wholly or partly in the Additional Butchulla Country: All of Bauple Mountain; from the confluence of Sandy Creek and the Mary River southwards to Miva; Netherby; Gundiah; Gootchie; Paterson; Theebine; Gunalda; Glenwood; Anderleigh; Neerdie; Toolara Forest; Coondoo Mountain; Wallu; Tin Can Bay; Cooloola Cove; Pipe Clay National Park; Poona Lake; Double Island Point; and Freshwater Creek that flows out on Teewah Beach.
29 Mr Barrowcliffe deposed:
59. I have a whole life of ongoing connection to the Cooloola Coast region that includes the area we Butchulla People know is traditional Butchulla territory, from the knowledge and teachings passed to myself and other Butchulla People by the late Aunty Olga Miller.
30 He further deposed that he met Aunty Olga Miller at the end of the 1980s:
62. … and began an intensive 16 years of learning from her about Butchulla art, history, culture and country, which continued right up till the day she died in 2003.
31 Mr Barrowcliffe gave evidence about the Mooloola Aboriginal and Torres Strait Islander Corporation founded by Ms Barrowcliffe, Aunty Olga Miller and others, and his establishment of an Indigenous Multimedia service known as “Goorie Vision”.
32 Mr Barrowcliffe gave evidence concerning the Wide Bay area, including:
81. My mother and I have worked with the Environmental Advisory Committee for the Wide Bay Military Training Area for over two decades, advising them on matters to do with cultural heritage protection and the cultural values of the area. We took on this work because Aunty Olga Miller told us that the entire Wide Bay Military Training Area is in Butchulla Country. She told my mother and me that she wanted us to become very knowledgeable about that area because it is located in the southern Butchulla area for which my mother and I are the Joint Butchulla Custodians. Only about one half of this area is in the determined Butchulla mainland and sea area. The remainder is in the "Additional Butchulla Country" shown on the maps in LB1 and LB2.
33 Mr Barrowcliffe gave evidence of other activities in which he had been engaged in preserving and protecting the additional Butchulla country.
34 Mr Barrowcliffe summarised his efforts in relation to the southern boundary of Butchulla country as follows:
87. I was not involved in the formation of the Butchulla People Land and Sea Claim #2. However, as soon as I became aware of the details of the Butchulla People Land and Sea Claim #2, I realised there was problem with its southern boundary and that it was placed too far north and did not encompass all the southern Butchulla Country.
88. Before the Butchulla People Land & Sea Claim #2 claim was determined my mother and I informed QSNTS that the southern boundary of the area claimed was incorrect and that the claim area did not include all the land and waters of the Butchulla People.
89. I raised my concerns about the southern boundary of the Butchulla People Land & Sea Claim #2 claim area at four QSNTS convened authorisation meetings for the Butchulla People Land & Sea Claim #2 claimants. To the best of my recollection of these meetings, my concerns were never directly addressed either during these meetings or after these meetings.
90. In addition, on two occasions outside authorisation meetings I have provided QSNTS with information about my connection to the southern bounds of Butchulla mainland and sea country.
91. Prior to these two occasions, Butchulla persons, including my mother, had raised the Butchulla southern boundary issue with Dr Frank McKeown who was the Butchulla People's anthropologist when QSNTS took responsibility for the native title claims of the Butchulla People. Around 2009, QSNTS filed two claims, which split Butchulla Country into two claim areas - an island area and a mainland and sea area - and appointed a new anthropologist, Dr Lee Sackett to prepare expert reports for these claims.
92. The first occasion when I supplied QSNTS with information about the southern extent of Butchulla country and my connection to this part of Butchulla Country was when Dr Sackett interviewed my mother and me. On that occasion my mother and I told him about our concerns with the southern boundary of the Butchulla People Land & Sea Claim #2. My mother and I also took Dr Sackett and QSNTS staff to sites in the Butchulla country that is south of the boundary of the now determined Butchulla People Land & Sea Claim #2. These places included Repeater Station Rd, Mt Kanigan, the Kings Bore Track and the Cooloola National Park.
93. On this first occasion I recall that neither Dr Sackett nor the QSNTS staff member present showed an interest in the information I gave about Butchulla places that are in the Butchulla Additional Country shown on the maps in LB1 and LB2. I did not observe that any notes were taken. I clearly recall that when my mother and I showed Dr Sackett the Boundary Scarred Trees in Cooloola National Park, he dismissed our information that Aunty Olga Miller had taught us that Butchulla country included Poona Lake and the area south of Double Island Point to Teewah Beach on the grounds that Aunty Olga Miller had never published this information.
94. I recall that Dr Sackett showed no interest in any information my mother and I gave him about Butchulla country and sites that were outside the boundary of the Butchulla People Land & Sea Claim #2 claim and that his focus was on our information about places within the claim area boundary.
95. I also observed that Dr Sackett also had no interest in recording that my information was passed to me orally from my Elders, including Aunty Olga Miller, a form of transmission which is one of the ongoing traditional practices of the Butchulla People.
96. The second occasion when I provided QSNTS with information about the Butchulla Country that is south of the now determined Butchulla People Land and Sea Claim #2 was in 2016 when I and other Butchulla persons gave evidence on country for the Butchulla People Land and Sea #2 claim. Dr Sackett was not present on this occasion. Annexed to this my affidavit as LB23 is a true copy of the QSNTS On-Country Evidence Process Schedule. The QSNTS team included Wati Qalotaki, who was the QSNTS Deputy Principal Legal Officer and lawyer for the Butchulla claims. A barrister named Tony McAvoy also attended the evidence gathering. On Day 3, I gave evidence in relation to Sites 16 and 17 at the locations Rainbow Beach, Tin Can Bay lnlet/lnskip Point/Double Island Point and Carlo Sandblow.
97. During Day 3 the QSNTS staff present, and Tony McAvoy, my mother and I climbed the Kelly Fire Tower, from where I asked everyone to look out at the vista. I told everyone that we are south of the boundary of the Butchulla People Land and Sea Claim #2 and I invited the QSNTS staff present and Tony McAvoy to show me where they thought the southern boundary of the Butchulla People Land and Sea Claim #2 area was. I recall that every one present just shrugged their shoulders. I recall that I then said: "There is only one landscape feature that stands out from up here, and that is the mountain range to the west." I recall that I questioned Tony McAvoy as to whether "the straight line southern boundary" of the Butchulla People Land and Sea Claim #2 area had been adopted off the Fraser Coast Regional Council ("FCRC") Boundary or whether the FCRC had adopted what they thought may be our "traditional country" boundary. I recall that he replied, "Obviously it's just an arbitrary line on a map" or words to that effect.
98. The Kelly Fire Tower is in the Additional Butchulla Country Area shown on the maps in LB1 and LB2. It is located at a site of significance to the Buchulla People, where there was once a lookout tree, similar to the one referred to above in paragraph 84 but which was accidentally cut down some years ago. These now-destroyed lookout trees were part of the Butchulla signaling system referred to mentioned in paragraphs 44, 47, 50, 78 and 79.
99. After descending the Kelly Fire Tower, we all then travelled to Carlo Sandblow, a place on the southern boundary of the now determined Butchulla People Land and Sea claim #2. That place is in a female area. When we got to the sand blow, a QSNTS team member told all of us he was experiencing the spiritual energy of this place and feared the site's female spirits were attacking him. During the whole hour we were there giving our evidence, he declined to move from the viewing platform, and when we finally returned to the car park to leave, he was still so agitated that he damaged the QSNTS hire car by backing it into a tree.
100. On both occasions when I gave evidence about the southern extent of Butchulla country I experienced that QSNTS dismissed as irrelevant not only any cultural information I gave about places that are south of the area of the now determined Butchulla People Land and Sea Claim #2 and but also any evidence of my ongoing connection to this part of Butchulla traditional mainland and sea country.
101. I personally experienced this dismissal in two ways. First, I recall that on both these occasions, there was no interest in recording any information I gave about Butchulla country and sites that are outside the boundary of the now determined Butchulla Land & Sea Claim #2 claim. Second, I recall that no interest was shown in recording that my knowledge about the Butchulla country and sites was handed down orally from the Butchulla Elder, Aunty Olga Miller, who ensured that I accurately memorised this information. This way of passing on knowledge is the Butchulla traditional way. Aunty Olga Miller not only orally passed to me her knowledge about this southern part of Butchulla Country, but also actually took me to sites in this part of Butchulla Country so as to personally introduce me to these places and their ancestral spirits and to ensure that I was properly prepared for fulfilling my custodial responsibilities towards this part of Butchulla Country.
102. I also raised my concerns about the problems with the southern boundary of the Butchulla Land & Sea Claim #2 claim area at four QSNTS convened authorisation meetings for the Butchulla People. To the best of my recollection of these meetings, my concerns were never directly addressed.
103. I do not know whether any of the evidence I provided during the QSNTS On-Country Evidence Process Schedule was relied on or given consideration in relation to the determination of the Butchulla Land and Sea Claim #2.
35 In his affidavit filed 16 March 2023, Mr Barrowcliffe gave further evidence relating to the maps and places marked on the maps in the annexures to his previous affidavit. In particular he spoke of transcripts of videoed interviews with Butchulla elders, published articles, photographs, and collection of ceremonial pipeclay in Cooloola Cove.
Ms Katherine Barrowcliffe
36 In her affidavit filed 7 March 2023 Ms Barrowcliffe deposed:
She was a Butchulla Elder and Senior Knowledge Holder of Butchulla history, law and custom, and the custodian of all the Butchulla women’s sacred sites and ceremonial grounds.
Aunty Olga Miller was the Caboonya (keeper of records) and Turrumunuwuy (head woman) of the Butchulla People, and appointed the prospective joinder respondents to jointly hold custodianship of the southern boundary area of Butchulla territory and its associated traditional Freeways.
From knowledge passed to her by her Butchulla Elders including Aunty Olga Miller, Ms Barrowcliffe knew that the boundary of the Kabi Kabi Claim area was placed too far north, and included some of the southern boundary area of the Butchulla People within which there were sacred and other sites of significance to the Butchulla People.
Any determination regarding the Kabi Kabi Claim would affect the customary rights and interests that she, as a Butchulla Elder and the custodian of all the Butchulla women's sacred sites and ceremonial grounds, holds to the Butchulla mainland country that is within the Kabi Kabi Claim area.
Her application was late because:
• she had unsuccessfully spent time endeavouring to obtain assistance from Queensland South Native Title Service (QSNTS) and other legal service providers; and
• when she learned she could make the application herself, the preparation took longer than expected because of on-going health issues.
37 Ms Barrowcliffe gave detailed evidence about her Butchulla ancestry, including her family history. In relation to Aunty Olga Miller, Ms Barrowcliffe gave evidence as follows:
17. Much of what I know about the location and extent of Butchulla country, its sacred and other significant sites, its resource areas and the stories associated with these places I learnt from the Butchulla Elder, the late Aunty Olga Miller.
18. My people get their cultural knowledge at different stages in their life, when they are in the right place and show they are ready to have such knowledge. My time came when I was a young married woman with children and seeking to know more about my people. When I asked my Cherbourg grandmother for help, she told me to follow my Butchulla mother and go to the Butchulla Elder, Aunty Olga Miller. I did this and as soon as we met, Aunty Olga Miller recognised and welcomed me and told me that through my mother, I belonged to the Wonamutta Clan of the Butchulla People.
19. I then spent sixteen years learning from Aunty Olga Miller and working with her to protect and preserve Butchulla Country, history, and traditions. During that time, she passed to me what she herself had learned from her Elders about Butchulla art, the creation of Butchulla Mainland and Off-Shore Country, its sacred and other significant sites, the history of its People, its clans and their particular off-shore areas, including those of my Wonamutta Clan, and their laws and customs with respect to caring for Butchulla Country and its People.
20. Before she passed away in 2003, according to custom, Aunty Olga Miller appointed me as her successor. With this comes the responsibility not only to protect and preserve these sites but also the duty to pass to the present and future generations of Butchulla People all her knowledge, written and oral, about Butchulla Country, sites, people and history to help maintain the continuing preservation, protection and well-being of Butchulla Country and its People. Annexed to this my affidavit as KB2 is a true copy of the newspaper article "Aboriginal links with Gympie", published in Weekend on 30 March 1991. This article mentions that Aunty Olga Miller is an elder of the Budjilla [Butchulla] tribe and was chosen by her grandfather, a wise man of the Butchulla tribe and Keeper of the Records, to become the next elder and Keeper of the Records, and that, as the current Elder and Keeper of the Records, Aunty Olga has chosen Nai Nai Bird as her successor.
21. Aunty Olga Miller passed much of this Knowledge to me and other family members present during the many visits we made together to different parts of Butchulla country. On every occasion she taught through showing the special features of that part of Butchulla country we were visiting and telling the history (Story) about that part's sacred and significant sites. After each visit, she asked each of us to make a Story-Map of these places and explain our maps. This was Aunty Olga Miller's special way of teaching. In this way, she ensured that I and other family members who came on these trips properly acquired in the Butchulla customary way our knowledge of Butchulla history, law and customs and Country and also learnt the duties and responsibilities associated with the holding of this Knowledge. Annexed to this my affidavit and marked KB3 is a true copy Aunty Olga's "The Teaching", which has one of my Story-Maps and which was published in 1994 in the book "Legends of Fraser Island".
38 Ms Barrowcliffe gave evidence of stories she had learned from Aunty Olga Miller, and continued in relation to the boundaries of Butchulla country:
29. The boundaries of Butchulla mainland country are not straight lines of course. My mother Yvonne Thrun (formerly Bird nee Gala) told me the Butchulla pre-sovereignty boundary goes down to the Noosa North Shore and Aunty Marie Wilkinson told me that the southern boundary of the Butchulla Nation goes down to the Noosa River. However, from what I learnt from Aunty Olga Miller, the Southern Traditional Boundary of Butchulla Country is south of Double Island Point and goes down to Little Freshwater Creek on the beach, then goes inland including Poona Lake and across to Rainbow Beach Road; and then south passed Mt Bilewilam and south of Carland Creek. Annexed and marked KB8 is a true copy of the map that my son Luke Barrowcliffe drew at my dictation, which shows the southern bounds of Butchulla country, based on what I learnt from Aunty Olga Miller.
39 Ms Barrowcliffe gave evidence of Butchulla sites that were within the Kabi Kabi Claim area, including:
the two men's bora rings on the mainland that belong to the Butchulla People, one of which is now known as Pipeclay National Park, and the other in the Poverty Point area at Tin Can Bay;
the men’s area which runs down behind a place now called Dilli Village on K'gari, and continues across the Great Sandy Strait, and, while leaving spaces of what Aunty Olga Miller said is common ground on the beaches, continues through the Poverty Point area right down to the Pipe Clay National Park; and
Sandy Creek, to the west of the Tin Can Bay area, which Ms Barrowcliffe learned from Aunty Olga Miller was the location of the Butchulla People's mainland women's area.
40 Ms Barrowcliffe gave evidence of attempts to protect and preserve Butchulla places in the Kabi Kabi Claim area, including:
In 1993 she wrote to the Queensland Department of Environment and Heritage - Maryborough Office, requesting that a buffer zone be allocated to protect the bora ring which is near the Cooloola Village;
Her complaint to the Ombudsman in 2005 concerning the Cooloola Shire Council’s consultation with Gubi Gubi People about sacred sites in the Noosa-Rainbow Beach area, the Cooloola Cove development and a proposed refuse tip (the Toolara site) and their inadequate or complete lack of consultation with the Butchulla People who were the custodians of these sites; and
Field trips she took in 2010 in the Cooloola and Tin Can Bay region, to record Butchulla sites and traditional bush medicines.
41 Ms Barrowcliffe deposed:
48. I was not involved in decision-making about the boundaries of the now determined area of QUD460/2018 Butchulla Land and Sea Claim #2. However, I have long known from learning from and working with Aunty Olga Miller that the southern boundary of the now determined Butchulla Land and Sea Claim #2 is not correct because it does not encompass all the traditional Butchulla land and waters in the Mount Bauple - Tin Can Bay - Cooloola area and it does not include within its boundary the mainland places sacred to the Butchulla People, for example, Mount Bauple, the Big Bora Ring, the Little Bora Ring, the Men’s Area, the Women’s Bora Ring and Women’s Area.
49. Before a determination was made, I raised my concerns about the southern boundary of the now determined Butchulla Land and Sea Claim #2 in person and in writing with QSNTS legal and research officers and with expert anthropologists appointed by QSNTS to prepare Connection Reports for the Butchulla People's native title claims.
50. I raised the southern boundary matter with the anthropologist Dr Frank McKeown who prepared the Application Report for the Butchulla claims, which was completed in September 2009. It was my hope that his further work for the Butchulla claims would include research about the correct location of the southern boundary of Butchulla Country. I was surprised to receive an email from him in late November 2009 stating that QSNTS had advised that I no longer wished him to conduct anthropological research in relation to the Butchulla Native Title Applications, as I had never said this. Annexed to this my affidavit and marked KB18 are emails relating to this, dated 30 November 2009, 01 December 2009 and 02 December 2009.
51. I then raised my concerns about the incorrectness of the southern boundary of the Butchulla Land and Sea Claim #2 on the two occasions I was interviewed by Dr McKeown's replacement, Dr Lee Sackett, who was accompanied by Ms Sue O'Brien, a QSNTS Research Officer. I recall informing Dr Sackett that the mainland area of the Butchulla claims does not include all of Butchulla traditional mainland country and that there was Butchulla traditional country south of the southern boundary of the mainland claim area.
52. Because QSNTS showed no interest in addressing my concerns about protecting my rights to the Butchulla traditional country that was outside the Butchulla claims, in particular the Butchulla Land and Sea Claim #2, I contacted a private solicitor, Sean Bowden, for advice and assistance. However, Mr Bowden advised that he had no capacity to assist. Annexed to this my affidavit and marked KB19 is a true copy of my letter dated 30 September 2011 to Mr Bowden …
53. I wrote to Kevin Smith, Chief Executive Officer (CEO) of QSNTS on 22 December 2011 about my concerns about the Butchulla claims and the sites of significance entrusted to me by Aunty Olga Miller. Annexed to this my affidavit and marked KB20 is a true copy of my letter to Kevin Smith dated 22 December 2011.
54. On 14 May 2012, I wrote to Kevin Smith, the CEO of QSNTS, in which I refer to his letter to me, dated 4 January 2012, in which he stated that members of my family and I had "assisted greatly in the connection gathering exercise which occurred at various stage last year and not only contributed your time but valuable information and stories to our field staff and consultants during that process". Annexed to this my affidavit and marked KB21 is a true copy of my letter to Kevin Smith dated 14 May 2012.
55. I received on 25 May 2012 by email a reply from Mr Kevin Smith, CEO of QSNTS in relation to a teleconference I had with him on 21 May 2021. In his letter Mr Smith includes mention that the State had not accepted connection for the Butchulla mainland and sea claim; that QSNTS does not provide claimants with copies of Connection Reports and that he has asked his team to make copies of material that I or my family provided, presumably to return to me. However, I do not recall ever receiving this material. Annexed to this my affidavit and marked KB22 is a true copy of Kevin Smith's letter to me, dated 25 May 2012.
56. I recall that I was shocked when Ms Sue O'Brien, Research Officer, QSNTS informed me in a telephone call that the evidence for the Butchulla mainland area was weak. On 6 July 2012 I wrote to her in relation to the evidence I had given about the Butchulla mainland country and reminded her that in a previous letter to her dated 6th June I had asked her to let me know in writing what files were being made available to Dr Sackett. In my letter to her dated 6 July 2012 I stated that: "I find it totally unacceptable that now there are serious doubts about the strength of documentary evidence at this late stage in the claim process given the large amount of funds that already have been spent and the assistance given by myself and others to facilitate the native title process". Annexed to this my affidavit and marked KB23 is a true copy of my letter to Sue O'Brien dated 6 July 2012.
57. I also continued in person to raise my concerns about the Southern Butchulla boundary area. On 27 June 2013 I attended a meeting organised by QSNTS for Butchulla applicants and Butchulla Elders. The QSNTS notes of that meeting record that:
• I asked if there would be an opportunity for the Butchulla People to change their boundary for the QUD460/2018 Butchulla Land and Sea Claim #2;
• The meeting was told that the position of the southern boundary was the result of an agreement between Butchulla and Kabi Kabi applicants, and not the whole claim group;
• I stated that I had concerns about this agreement and would like to know the basis on which it was reached;
• The meeting was informed that the agreement was an MOU that ultimately had no binding legal effect and that it was made when the Butchulla claims were looked after by the Gurang Land Council; and
• The QSNTS solicitor for the Butchulla People, Ms Wati Qalotaki advised the meeting that the proper way to proceed would be for the Butchulla People to speak with and liaise with the Kabi Kabi People before any boundary changes are made.
58. I have not included the notes of this meeting as an annexure to my affidavit, because they are stamped by QSNTS as confidential. However, I can provide the notes, should the Court request them.
42 In her affidavit filed 16 March 2023 Ms Barrowcliffe gave evidence including:
The Double Island Point lighthouse and associated complex is at the summit of Double Island Point, and is within the Cooloola section of the Great Sandy National Park. This area is the Butchulla country that is south of the area of the Cronin Determination. It is within the area of the Kabi Kabi Claim. The area is of spiritual and historical significance to the Butchulla People;
In 1995 Ms Barrowcliffe, Aunty Olga Miller and others attended a meeting of the Aboriginal Cultural Heritage Group Liaison Meeting held at the Cooloola Shire Council Office in which Aunty Olga had told the meeting about several sites, including: Wolvi Mountain, a burial cave on Wolvi Mountain, the Freeways - shared corridors; and that the Pipeclay area was within Butchulla territory;
Documents relating to the field trip in 1994 undertaken as part of the National Aboriginal and Torres Strait Islander Education Policy Team Cultural Visits programme, including visits to Pipeclay and Poverty Point; and
Concerning events in Mothar Mountain, told to her by Aunty Olga Miller.
Joint evidence of Mr Barrowcliffe and Ms Barrowcliffe
43 In a joint affidavit filed 5 May 2023, Mr Barrowcliffe and Ms Barrowcliffe gave evidence responsive to Ms Hodge’s affidavit, and included further annexures. They deposed that the evidence of Butchulla Elders should be understood at a “general, landscape level, indicative of what constitutes Butchulla country.” They stated that traditional boundaries to claim areas were not straight lines, and continued:
9. … In my Annexure LB8, Aunty Olga Miller specifically provides details on why traditional boundaries are not straight lines and in regard to the straight arms out from Mount Bauple north and south, this account that Mr Harris remembers is just a generalisation derived from a lady who herself seems not, from Mr Harris' recollections, to have given her source of her knowledge. So again, sticking specifically to this detail is a misinterpretation of the contextualisation. As stated in LB8, Aunty Olga describes how the "original boundaries follow the geological features of the landscape, such as, river banks, and creek banks - for a water supply was paramount to these people, who were continually moving"; and also that: "Other boundary features were, ridges, the base or the tops of ranges, even as diversified as the rims of plains, or lakes and groups of waterholes"; and finishes with "So boundaries, were not straight lines."
44 They continued:
10. To confuse the issue even further, there appears to be only one family group (the Muckan's) amongst the 2005 meeting signatures who appear to know anything about the area which the MOA is designed to affect. When they signed the agreement, they signed as Butchulla (with a noted interest in Emery's Crossing). However, through the connection report process they are now Kabi Kabi claimants and not Butchulla. So, someone other than my mother and I, who identified as Butchulla at the time, recognised this area to be of importance to the Butchulla people.
45 They also gave evidence explaining the delay in lodging the interlocutory applications, namely:
QSNTS provided no assistance or advice to either prospective joinder respondent in relation to their raised concerns about the southern boundary through correspondence, in authorisation meetings, on the phone or in person on the two on country evidence trips. Mr Barrowcliffe recalled raising the issue four times in authorisation meetings for the Cronin Determination, and Ms Barrowcliffe raised the issue in correspondence to QSNTS (as identified by Mr Barrowcliffe in the letters in annexure “KMH-01” to the affidavit of Ms Hodge).
At the last authorisation meeting before the Cronin Determination, Mr Barrowcliffe tried to raise issues relating to the southern boundary of that claim (as identified by Mr Barrowcliffe in the minutes of meeting marked annexure “LB31” to his affidavit).
Mr Barrowcliffe and Ms Barrowcliffe did not know to whom they could turn to raise the issue with the southern boundary.
Evidence of the Kabi Kabi Applicant
Mr Jeffery Harris
46 In his affidavit filed 23 March 2023, Mr Harris relevantly deposed that he was employed and provided mapping services for the QSNTS. He continued:
3. During my employ at NNTT I recall attending a meeting in about 2005 that discussed the southern boundaries of Butchulla country. The current boundaries of the Butchulla land and sea claim were discussed and agreed to in this meeting. I know from a review of Butchulla claims that Butchulla claim areas have never extended further south of their current claim area and subsequent determination area. I remember a Butchulla Elder standing up at this meeting and explaining to those who attended the meeting that Butchulla country extended to Double Island Point from Mount Bauple. This Elder was an older, larger lady, who seemed to hold a lot of sway with the Butchulla people present about her knowledge of the southern boundary of Butchulla Country. I recall this because she said that when you stand on Mount Bauple holding your arms out the Butchulla boundary extends to north to Burrum Heads and east to Double Island Point. I distinctly remembered her saying this because native title boundaries are usually not straight lines in this way.
4. I remember flying up to Hervey Bay for this meeting. It was the day they landed the big Qantas Plane (A30) in Brisbane. The meeting was held at the Mantra Hotel in Hervey Bay and I was there for one day. I do not remember the meeting being any longer than this. I cannot remember the overall purposes of this meeting, I just remember being there to help facilitate the discussion about the boundary. I was also there to confirm and map the boundaries. This meeting was well attended. I also remember that Dr Lee Sackett (anthropologist) attended. Staff from the NNTT and QSNTS were in attendance.
5. I did the mapping of the outcomes from this meeting while I was at the meeting. It was a relatively easy meeting. It got heated at points, as most native title meetings do, but no one was ejected from the meeting. I do not remember if there were more than one group there but I do rememeber the Butchulla People being there.
Mr Michael Allbrook
47 Mr Allbrook deposed that he was one of two Deputy Principal Lawyers employed by QSNTS and had been the solicitor on the record for the Kabi Kabi Claim since 6 January 2023.
48 In his affidavit filed 24 March 2023 Mr Allbrook gave evidence that:
13. Ms Olga Miller filed a native title claim QC1994/010 (no federal court number was allocated) on 7 November 1994 and QUD6227/1998 on 3 September 1996 on behalf of the Wondunna Clan. Ms Miller was the only member of the Applicant for these claims.
49 Application QC1994/010 was withdrawn on 18 December 1996. It is unclear what occurred in respect of Application QUD6227 of 1998.
50 In relation to Aunty Olga Miller, Mr Allbrook deposed:
62. I know from records held by QSNTS that Ms Olga Miller gave evidence in 1990 and provided a statement of her evidence which included a map of how she saw her traditional country at that time. The map includes a straight line from Mt Bauple to lnskip Point which reflects the current boundaries for Cronin. Annexed to this affidavit and marked "MA-08" is a copy of this map titled "Olga Miller & Sons Map of Fraser Is. Location of Clan Lands". Annexed to this affidavit and marked "MA-09" is a copy of a map (and index) which shows Ms Miller's boundary and sites or points of interests referred to in the Joinder Applicant's material filed in support of the Interlocutory Applications in relation to Cronin and the Kabi Kabi Claim.
51 Mr Allbrook gave evidence that there had been correspondence between the QSNTS legal team and the prospective joinder respondents relating to the progression of the Butchulla native title claim and access to connection material and meeting procedures. Detailed correspondence from Ms Barrowcliffe to QSNTS between 3 May 2012 and 27 February 2014 was set out in annexure “MA-07”, and in summary related to:
Conduct of an authorisation meeting held on 6 May 2012 in Hervey Bay;
An apical ancestor of the prospective joinder respondents, Mr Jacko Morris;
Anthropological research of Dr Lee Sackett;
Information the prospective joint respondents had provided to QSNTS;
Legal privilege and confidentiality matters;
Protection for sites of significance, ceremonial grounds, and relevant sites which they had passed onto QSNTS staff;
Funds in a Butchulla QSNTS account;
A workshop organized by QSNTS;
Provision of information by QSNTS to the prospective joinder respondents;
Their concern over misuse of sensitive information;
Request for financial records and documentation;
Provision of material including minutes reflecting the conduct of a Butchulla meeting of 15 December 2012;
Concerns regarding their view of a development strategy pursued by the Fraser Regional Coast Council;
The Butchulla connection report as existed in July 2013 and February 2014;
Response to extra information sought on 14 November 2013 concerning information being sought for the Butchulla Mainland Claim; and
Events leading to a Butchulla prescribed body corporate.
52 Mr Allbrook annexed to his affidavit as annexure MA-10 a document which appears to have been prepared by Dr Lee Sackett dated 15 March 2023 entitled “Comments on the Interlocutory Applications of Katherine Barrowcliffe (aka Nai Nai Bird) and Luke Barrowcliffe to be joined to the Kabi Kabi First Nation Traditional Owners Native Title Claim Group (QUD 20/2019)” (Comments of Dr Sackett). Relevantly Dr Sackett stated as follows:
9. I heard and noted what Ms Bird and Mr Barrowcliffe had to say about what they averred to be southern Butchulla lands. I as well noted that their (named) authority in this regard was Mrs Olga Miller. In the event, Ms Miller had said a number of different things in relation to what she presented as southern Butchulla country. In additions to the places/areas referenced above, she (see my 2011:¶171) had it in 1975 that Butchulla country ran from Mount Bauple northeast to Sandy Cape and southeast from Mount Bauple to Hook Point, ie to the top and to the bottom of Gari/Fraser Island. By 1990, she had Butchulla country running from Mount Bauple northeast to the “vicinity of Rooney’s Point” and southeast from Mount Bauple to Inskip Point, ie from near the northern tip of Gari/Fraser Island to mainland land adjacent to the southern tip of the Island. In this, she had said nothing about Butchulla taking in Double Island Point, Cooloola Cove or Pipe Clay National Park. Then in 1993, Olga Miller (see my 2011:¶182) had Butculla country running not northeast from Mount Bauple across to the north of Gari/Fraser Island, but rather northward from Mount Bauple to the area of the Burrum River and Burrum Heads, and from there to Rooney Point/Sandy Cape. As well, at this time Mrs Miller had Butchulla country running not “right down to Hook Point” but rather as running/extending to the south of Tin Can Bay and then up to the Inskip Point/Hook Point area, and seemingly now including Double Island Point, Cooloola Cove and Pipe Clay National Park.
10. Importantly here, I (2011:¶459) noted that “claimant ancestors’ and claimants’ claims to mainland areas do not find much ready support in the reports of early commentators and researchers. Although Winterbotham (followed by Tindale [1974]) had Butchulla country taking in Maryborough and places to the south, Tennant Kelly had the Mary River in Kabi Kabi country. Most other commentators and researchers … did not associate Butchulla with mainland areas at all.”
11. This is not to say that the Butchulla do not now hold Native Title rights and interests in mainland areas. In my (2011:¶444-445) first report indicated that it was my opinion that the Butchulla were part of a wider Kabi Kabi society. That is, “by law and custom, Butchulla people held certain areas and, by the same law and custom, others held neighbouring areas in the region” By this same, shared law and custom, they could succeed to one another’s areas. In my (2015) second report, I opined that over time the Butchulla had, through their occupation, resource exploitation, holding knowledge of sites, participation in rites, commemoration of ancestral burial places and general carrying for the country, succeeded to some mainland areas (areas that in my understanding did not then or now take in ‘Double Island Point, Cooloola Cove and Pipe Clay National Park’ [see above ¶4]).
…
13. Significantly, as the ring is stated by Ms Miller and Mr Barrowcliffe as evidence of their Butchulla knowledge and Butchulla custodial responsibilities, Olga Millers son, Glen Miller (see 2011:¶710), who knows of the place I was taken to, told me that his mother “said that it was not in our [ie Butchulla] country.”
14. The view that the Butchulla were/are members of a wider Kabi Kabi society (a view accepted by the court [O’Bryan J 2019:¶26]) makes comparisons of the Butchulla People/Country with the Kabi Kabi People/Country somewhat meaningless. They were/are not of the same order; in a very real way, the Kabi Kabi contained/contain the Butchulla.
15. This, in turn, makes somewhat meaningless the ideas that prior to sovereignty (1) the Butchulla and Kabi Kabi were not adjacent to one another and (2) that the Butchulla allowed the Kabi Kabi to move into/onto Butchulla country. Noteworthy here, the Carpet Snake was by no means unique to the Butchulla and Kabi Kabi (however the latter are defined).
16. In all, the idea of the southern Butchulla area as touted by Ms Miller and Mr Barrowcliffe receives almost no support in the earlier ethnographic evidence. It, further, receives almost no support in claimant evidence. Even some of this latter is inconsistent/contradictory.
53 In his Comments it appears that Dr Sackett referred to evidence of both Mr Barrowcliffe and Ms Barrowcliffe, including claims regarding what they presented as their positions/statuses in relation to their fellow Butchulla and, by extension, the lands they state were mistakenly not included in (at least) two previous reports/determinations. Dr Sackett stated:
19. These and similar assertions made by Ms Bird and Mr Barrowcliffe have little or no resonance with what I understand to be traditional law and custom. In my experience different clans were not associated with different roles such as having the group’s clevermen, keepers of records or the like. Similarly, individuals did not occupy statuses such as that of cleverman or keeper of records because of their membership of one or another clan. Individuals were not preordained by elders to fill a particular role or status. Status was achieved, not ascribed. Women did not visit, and certainly did not introduce males to, bora rings. Women did not have bora rings of their own.
54 Dr Sackett referred to findings of the late Professor Bruce Rigsby that Aunty Olga Miller’s claims should not be accepted as accurate, and continued:
21. At the time, I indicated that I agreed with Prof Rigsby’s assessments and views. I continue to do so. Indeed, his suggestion that Olga Miller’s, and by extensions, Ms Bird’s and Mr Barrowcliffe’s, views were/are wholly out of tune with what is known to have been the case elsewhere amongst hunter-gatherers in general and amongst Aboriginal Australian in particular strikes me as an accurate appraisal of things. His labelling of certain aspect of their declarations as “farfetched” might be regarded as gentle and generous.
Ms Kristen Hodge
55 Ms Kristen Hodge was a solicitor employed since 2019 with QSNTS, and was directly supervised by Mr Allbrook. Ms Hodge gave an affidavit filed on 7 April 2023.
56 Materially, in her affidavit Ms Hodge gave evidence of further correspondence not included in Mr Allbrook’s affidavit, including letters written by Ms Barrowcliffe to QSNTS between 2011 and 2014. Ms Hodge deposed that none of that correspondence referred to any dispute concerning the southern boundary of the proposed consent determination for the Cronin Determination, or to any of the specific cultural sites identified by Ms Barrowcliffe, and nor did Ms Barrowcliffe request assistance to protect any interests in the area of the current Kabi Kabi Claim.
Mr Timothy Wishart
57 Mr Wishart was the Principal Lawyer of QSNTS, and filed an affidavit on 5 May 2023 annexing the minutes of the Cronin Determination authorisation meeting held on 12 October 2019.
58 In summary the minutes of the meeting recorded that:
(1) Mr Barrowcliffe attended the meeting, there being specific references to things said by Mr Barrowcliffe during the meeting.
(2) Attendees were advised that the purpose of the meeting was to approve amendments to the native title determination application, including amendments necessary to finalise the consent determination, and to authorise a positive consent determination.
(3) Advice was given to the Butchulla people about the area of the consent determination, which was less than the area claimed in the original application (due to the State of Queensland and the Commonwealth not accepting the requisite connection of the claimants to the area to be excluded).
(4) A map of the areas proposed to be excised was prepared and provided to attendees. This area was land in the north-west of the claim, and there was no excision contemplated over the southern boundary.
(5) The attendees were advised that it would be possible to lodge a further claim over the excised area at a later date if more evidence could be developed.
(6) It was noted that Kabi Kabi was a neighbouring claim group that was either determined or on its way to determination.
(7) The following exchange occurred (p 11-12 of the minutes):
• Ms Qalotaki reiterated the areas proposed to be removed from the claim for connection reasons. She also noted areas to be excised, which had been surrendered as part of the Rainbow Beach Ambulance Station ILUA. the Rainbow Beach Fire and Rescue Station ILUA and the Sales Permit Lot (Lot 1 on AP23253) which was part of the Yougro ILUA. Those surrenders too effect on the registration of those ILUAs, and the effect is that native title over those lots is extinguished. She referred to these lots on a map presented to the meeting. She advised the areas ought to be excluded from claim as, by law, they cannot be claimed.
• Veronica Bird was asked about the ILUAs, the nature of the surrender and the process in relation to transfer of ILUA funds to the second PBC.
• Ms Qalotaki said that that would relate to the advice Ms Thomas-Greer would provide, but it related to the process in relation to the Applicant to PBC handover. She said the compensation funds went to BAC as the K'Gari PBC to hold on trust for the claim group for the mainland claim.
• Luke Barrowcliffe said that was irrelevant and that the meeting should focus on the loss of sea country.
• Ms Qalotaki answered by noting she was responding to Veronica Bird's question. She noted that there are risks in holding on to the problematic sea country areas when the State and Commonwealth have deep pockets and deal with sea country claims regularly. She said it can be dealt with in the fut.ure, as it is not being surrendered. The group can make another claim later once there is credible evidence of connection to those areas.
• Christine Royan asked about how many groups have gone back and put another claim over country when they initially didn't have the evidence. She also asked about whether there were issues with the State or neighbouring groups, saying that they had never sat down with Wakka Wakka, Kabi Kabi or Gooreng Gooreng.
• Ms Qalotaki said that keeping those areas was open to the group. However, her recommendation was that the group excise the problematic areas with the current claim and proceed with what has been accepted, which doesn't stop the group from bringing a claim on those areas in the future when mor[e] evidence had been gathered. She said she couldn't answer Christine's further question, but noted that Quandamooka has had inland sea recognised. She said that getting connection to open sea country requires further evidence of a different kind (higher level and greater particularity evidence), such as of stories, seacraft and trading, for that kind of country. She said that the difficult part for this part of the State is that early ethnographers didn't make observations on this, and so it is necessary to rely on the evidence of traditional owners to bring to the fore that the group holds that connection.
• Christine Royan said that it is also the group's fault for not bringing this evidence forward. She said that she does believe the group has the evidence, as they are saltwater people, and the group should go back and make another claim for those areas.
• The Chairperson said that it was an advantage to this process to be able to wait until everything is set properly to push for a seas claim.
• Fiona Foley said that at the information session she was told that the second P8C could pursue the sea country claim, which means it hasn't been lost.
• The Chairperson said that if the claim group loses, they lose it forever. However, if they follow Ms Qalotaki's advice, they can fight smaller battles and win them progressively. He said that the group can try again.
• Luke Barrowcliffe agreed with the Chair, but said that they may lose the southern country if Kabi Kabi gets over the line first.
• Noted Kabi Kabi does not claim any sea country, and does [n]ot overlap with any Butchulla claim area.
At 12:20 pm, The Chairperson called for the meeting to break for Lunch to return at 1:15 pm.
SUBMISSIONS
59 Submissions in respect of the interlocutory applications before the Court were made by Mr Barrowcliffe, Ms Barrowcliffe, the Kabi Kabi Applicant, and the State.
60 Mr and Ms Barrowcliffe were self-represented. In summary, they submitted:
traditionally the Kabi Kabi People were not neighbours of the Butchulla People;
they were not apprised of the contents of the MOU between the Butchulla People and the Kabi Kabi People;
references in Butchulla lore to Double Island Point or Tin Can Bay or Bauple Mountain were references to the whole landscape feature/locality, not GPS reference points;
it was common knowledge that Bauple Mountain, Tin Can Bay and Double Island Point were part of Butchulla Country;
traditional boundaries were not straight lines. Rather, as Aunty Olga Miller had explained, the boundaries followed geographical features of the landscape such as river banks, creek banks, ridges, ranges, rims of plains, lakes or groups of waterholes;
they had demonstrated significant evidence of their traditional custodian rights and interests in the disputed area. The custodianship of significant places in the southern Butchulla area was integral to the interest asserted by the prospective joinder respondents;
it was in the interest of justice that the joinder application be accepted so that the prospective respondents’ cultural and traditional rights in the area were recognised, including their custodianship rights respecting significant areas within the southern bounds of Butchulla country;
The prospective joinder respondents had endeavoured to raise their concerns regarding the southern boundary on many occasions, including, as deposed at [10] of Ms Barrowcliffe’s submissions:
a) KB15: April 2005, reply letter from the Queensland Ombudsman;
b) KB18: December 2009, Emails to Frank McKeown;
c) KB19: September 2011, letter to Sean Bowden & Associates;
d) KB20: December 2011, Letter to Kevin Smith;
e) KB23: July 2012, Letter to Sue O'Brien;
f) KB[57]: June 2013 Applicant and Elders Committee Meeting Minutes where I raised a question about the southern boundary;
g) LB23: December 2016 on country evidence trips; and
h) I also recall raising my concerns about the southern boundary during some of the several phone calls she made to Sue O'Brien.
Despite repeated requests from Ms Barrowcliffe and Mr Barrowcliffe, QSNTS chose to ignore issues of the Butchulla southern boundary;
Mr and Ms Barrowcliffe only realised relatively recently that they could bring this litigation themselves.
61 In opposing the joinder application the Kabi Kabi Applicant submitted, in summary:
It was not in the interests of justice to join the prospective joinder respondents to the proceedings because:
• the prospective joinder respondents had delayed the interlocutory application and have failed to provide a reasonable excuse for the delay;
• if joined, the prospective joinder respondents would have a right of veto to end or delay the determination in the Kabi Kabi Claim;
• the prospective joinder respondents appear to “promulgate native title on behalf of the Butchulla People”; and
• the boundary between the Cronin Determination and the Kabi Kabi Claim area was resolved by the MOU between Butchulla Elders and Kabi Kabi Elders dated 12 November 2005.
If the prospective joinder respondents were joined, all existing parties would suffer prejudice, as all existing parties have contributed time, trouble and expense towards a s 87A agreement and Indigenous Land Use Agreement.
The prospective joinder respondents had not given a reasonable excuse for their delay in applying for joinder.
The prospective joinder respondents were not joined in their application by other members of the Butchulla People.
The Cronin Determination and Kabi Kabi Claim boundaries comply with the MOU.
Dr Sackett commented that the proposition that the northern part of the Kabi Kabi Claim was actually Butchulla country received almost no support in the earlier ethnographic or claimant evidence.
The prospective joinder respondents did not have an interest capable of being recognised.
62 The State neither opposed nor consented to the joinder application, but nonetheless filed submissions to assist the Court.
CONSIDERATION
63 Section 84(5) of the Native Title Act 1993 (Cth) (Native Title Act) provides:
The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.
64 The applicant to a joinder application has the onus of satisfying the Court of each of the elements in s 84(5): Forrest on behalf of the Kakarra Part A Native Title Claim Group v State of Western Australia [2023] FCA 529 at [14], Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia [2022] FCA 114 at [32], and Vea Vea on behalf of the Wadja People v State of Queensland [2020] FCA 405 at [16].
65 Section 84(5) of the Native Title Act was explained by Mansfield J in Sumner v State of South Australia [2014] FCA 534 in the following terms:
12. The elements of s 84(5) are well established: Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [26] (Mansfield J) (Far West Coast (No 5)); Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310 at [14] (Greenwood J) (Chippendale); Barunga (Gilmour J); Akiba v Queensland (No 2) [2006] FCA 1173; (2006) 154 FCR 513 at 520 [32] (French J); Worimi Local Aboriginal Land Council v Minister for Lands (NSW) [2007] FCA 1357; (2007) 164 FCR 181 at 183-184 (Bennett J). An applicant for joinder must establish:
(a) whether the person has an interest;
(b) whether the interest may be affected by a determination in the proceedings; and
(c) whether, in any event, in the exercise of its discretion the Court should join the person as a party.
13. With respect to the “interest” in (a) and (b), it “need [not] be properly or even legal or equitable in nature” but must be “genuine”, ... not indirect, remote or lacking substance ... [and] capable of clear definition” and “be affected in a demonstrable way”: Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 at 7E-G, 8A (Black CJ) (Byron) (emphasis added); Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315 at 316-317 (Branson J) (Davis-Hurst); Barunga at [165] (Gilmour J); Chippendale at [14] (Greenwood J); Far West Coast (No 5) at [28] (Mansfield J).
…
16. In determining whether an applicant for joinder satisfies the test identified in Byron, the Court does not embark on resolving contested questions of fact or seek to determine where the merits lie. Rather, the question is whether having regard to the assertions of fact contained in the application for joinder, the Court can be satisfied that the person’s interests may be affected in a demonstrable way by a determination of native title. That is, there must be a factual foundation which demonstrates that a relevant interest is affected: Chippendale at [16] (Greenwood J).
17. As to the discretion, that must be addressed on a case by case basis: Far West Coast (No 2). While there is no doubt that the discretion conferred on the Court by s 84(5) is a broad one, that discretion is to be exercised with due regard to the statutory purposes and context of the NT Act read as a whole, including to ensure that the prosecution of native title claims is not occasioned by unnecessary delay caused by unreasonable interlocutory applications.
…
19. Persons representing a differently constituted claim group may be joined as respondents to a claim : Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 at 550 [22] (Mansfield J): Munn v State of Queensland [2002] FCA 486 at [8] (Emmett J); Davis-Hurst at [27] (Branson J). Assuming competing claimants can establish that they have rights and interests which may be affected by a determination of native title, joinder to a principal native title claim may be appropriate in the sense that the assertion and consideration of such interests may lead to a more informed decision on the principal claim. However, even if joined as respondents, the interests advanced by competing claimants could not result in a positive determination of native title in their favour: Commonwealth v Clifton (2007) 164 FCR 355 at 366 [57] (Branson, Dowsett and Sundberg JJ) (Clifton); Kokatha at [22] (Mansfield J); Munn at [8] (Emmett J); Davis-Hurst at [27] (Branson J).
Do the prospective joinder respondents have an interest?
66 In relation to the Kabi Kabi Claim area, the Kabi Kabi Applicant relevantly seeks the non-exclusive rights to:
a. access, be present on, move about on and travel over area;
b. camp on the area, and for that purpose, erect temporary shelters on the area;
c. hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
d. take, use and share Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
e. take and use the Water of the area for personal, domestic and non-commercial communal purposes;
f. participate in cultural activities on the area;
g. hold meetings on the area;
h. maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and to protect those places and areas from physical harm;
i. teach on the area the physical and spiritual attributes of the area;
j. light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation;
k. be buried and bury native title holders within the area
67 The area claimed by the Kabi Kabi Applicant is that set out in the map below (which is Attachment C on p 85 of the Fifth Further Amended Native Title Determination Application filed 1 June 2023):
68 The area in which the prospective joinder applicants claim an interest is that bounded in pink in the map in Annexure “LB1” on p 31 of Mr Barrowcliffe’s affidavit filed on 7 March 2023 (the disputed area):
69 Plainly, the interest claimed by the prospective joinder respondents is in the disputed area to the south of the northern-most boundary of the Kabi Kabi Claim area, being the area to the south of a straight line from Mt Bauple to the coast and then around to Double Island Point.
70 The Kabi Kabi Applicant submitted that the prospective joinder respondents appeared to:
(1) promulgate native title on behalf of the Butchulla People yet no other Butchulla People do so;
(2) that a person or group cannot obtain a native title determination in their favour as a respondent to other native title proceedings; and
(3) there was no evidence that would support a finding of fact that the views of the prospective joinder respondents are supported by the Butchulla as a whole.
71 The Kabi Kabi Applicant relied on such cases as Bonner on behalf of the Jagera People (No 2) v Queensland [2011] FCA 321, Commonwealth of Australia v Clifton (2007) 164 FCR 355; [2007] FCAFC 190 and Moses v Western Australia (2007) 160 FCR 148; [2007] FCAFC 78.
72 The principles identified by the Kabi Kabi Applicant are undoubtedly correct, however I do not consider they preclude the existence of an interest of the prospective joinder respondents in the disputed area.
73 Extensive evidence was given by the prospective joinder respondents in respect of their claimed interest in the disputed area. In particular, as I have already summarised, they both gave detailed evidence concerning sacred Butchulla sites in the disputed area, and their specific custodial and protective roles in respect of those sacred Butchulla sites.
74 It is true that no application by any other Butchulla People for joinder to the Kabi Kabi Claim has been filed, and no evidence is before the Court other than that of Mr Barrowcliffe and Ms Barrowcliffe. However, for the purposes of s 84(5) of the Native Title Act, that evidence demonstrates at least a prima facie interest on the part of Mr Barrowcliffe and Ms Barrowcliffe, namely an interest at first sight and without further investigation: Harkin on behalf of the Nanatadjarra People v State of Western Australia [2020] FCA 1015 at [10].
75 In particular:
I am satisfied that the evidence of the prospective joinder respondents is genuine, and not indirect, remote or lacking substance;
I am satisfied that the evidence of the prospective joinder respondents is capable of clear definition, by reference to the area they have identified in maps the subject of their evidence, by reference to the sacred sites they identified in their evidence, and by reference to the custodial and protective rights they asserted in their evidence; and
While no anthropological evidence has been filed by the prospective joinder respondents in support of their joinder application, I note oblique reference to the existence of such anthropological support in the Comments of Dr Sackett, annexed to Mr Allbrook’s affidavit. I am prepared to accept that the annexure “MA-10” is the “comments” of Dr Sackett, notwithstanding that the document is at best unsworn observations, was not signed, and was apparently not produced as expert opinion in accordance with the Federal Court of Australia’s Expert Evidence Practice Note (GPN-EXPT) dated 25 October 2016. However while it appears that Dr Sackett disagreed that the prospective joinder respondents had the rights and interests they claimed in the disputed area, his comments also referred to support for the assertions of Aunty Olga Miller – and by extension, to assertions of the prospective joinder respondents. I note Dr Sackett at [20]referred to:
…the late Dr Jimmy Weiner’s uncritical acceptance of Olga Miller’s claims regarding specialist positions and clans... Prof Rigsby wrote:
… Dr Weiner reports nothing further on these scores beyond the fact that ‘Olga Miller claims the title of Caboonya of the Butchulla People...inherited from her grandfather, Willie Wondunna. Caboonya means ‘keeper of records’…
76 Further, I am not persuaded that the interest claimed by the prospective joinder respondents must necessarily be described as promulgation of native title on behalf of the Butchulla People. While Mr Barrowcliffe and Ms Barrowcliffe plainly gave evidence that the disputed area was Butchulla land rather than Kabi Kabi land, the tenor of their submissions and the evidence was that they individually have custodial and protective functions in that land, specifically:
Mr Barrowcliffe: arising from his role as the Tharamine Wonamutta (Little Cleverman) of the Wonamutta Clan of the Butchulla People and a Butchulla Traditional Custodian with particular traditional rights and responsibilities in relation to the southern part of Butchulla mainland and sea country; and
Ms Barrowcliffe: because she was a Butchulla Elder and Senior Knowledge Holder of Butchulla history, law and custom, and the custodian of all the Butchulla women’s sacred sites and ceremonial grounds.
77 So, for example, I also note evidence of Ms Barrowcliffe in her affidavit filed 7 March 2023, where she deposed to having spent many years fulfilling her custodianship duties and responsibilities in relation the disputed area, having been appointed by Aunty Olga Miller to protect and preserve sacred sites, and to her work with National Parks to identify plant, animal, bird and fish species as part of her customary responsibilities to preserve and protect the sites. I also note Ms Barrowcliffe’s affidavit filed 16 March 2023 where she referred to an expression of interest made in 1999 by herself and Aunty Olga Miller referable to the Double Island Point lighthouse being an historical site of significance for Butchulla People and Europeans, and proposing that the facilities being used as a centre for learning. Similarly, in his affidavit filed 7 March 2023 Mr Barrowcliffe referred to (at [9]) his “customary right to speak for this area and acquit the traditional customary law role responsibilities handed on to me from my Butchulla ancestors.”
78 In his interlocutory application, Mr Barrowcliffe sought, in addition to being joined as a respondent in the Kabi Kabi Claim, that the matter be referred to mediation by a Judicial Registrar. Ms Barrowcliffe did not seek an equivalent order.
79 I accept the State’s submission that the purpose of the mediation requested by Mr Barrowcliffe is not apparent. The State continued in its submissions:
21. It is not a legitimate objective to be joined as a party to have native title rights and interests recognised or to act as a representative. It is not possible for these rights and interests to be recognised as a respondent to a claim. If such a course of action was to be undertaken, it must be through the appropriate mechanisms under the NTA.
(footnotes omitted).
80 The Kabi Kabi Applicant refers to the reasoning of Reeves J in Bonner:
[18] Indeed, various judges of this Court have held that persons in positions similar to the present applicants may be joined as respondent parties to conflicting native title proceedings to seek to defensively assert their native title rights and interests in those proceedings: see Munn at [8], Davis-Hurst v New South Wales Minister for Land and Water Conservation (2003) 198 ALR 315; [2003] FCA 541 at [27] per Branson J, Kokatha Native Title Claim v South Australia (2005) 143 FCR 544; [2005] FCA 836 at [24] per Mansfield J and Worimi at [16]–[17] per Bennett J. I respectfully agree with the views expressed in these decisions.
[19] This is not to say that such persons can use their status as respondents in the conflicting native title proceedings as an alternative route to acquiring a positive determination of native title in their favour. As Clifton makes clear, the Act prescribes the only method by which a person can obtain a positive determination as to the existence of native title, and that is by way of an application under s 13(1): see Clifton at [61] quoting Moses v Western Australia (2007) 160 FCR 148; [2007] FCAFC 78 at [18]. Furthermore, I agree with what Emmett J said in Munn (at [9] – see also Clifton at [48] and [57]) that a person joined in this way as a respondent party, cannot act in a representative capacity on behalf of others claiming the same rights or interests. If they wish to do that, they need to make an application under s 13(1) and comply with the authorisation provisions of s 61 of the Act.
81 I accept this position; however, I do not think it can be assumed that the sole purpose of the prospective respondent’s joinder applications was to agitate native title rights and interests on behalf of the Butchulla People. It may also be the case that the prospective joinder respondents, through mediation, wish to reach an agreement with the Kabi Kabi Applicant regarding the disputed area. Again, I note that the prospective joinder respondents were not legally represented.
82 The State also submitted that it is not apparent from Ms Barrowcliffe’s evidence what will be achieved by her joinder. However, Ms Barrowcliffe, in her evidence, stated that:
8. I was forced to, as a last resort, submit this IA to the Kabi Kabi Claim (QUD20 of 2019) in the interest of justice to preserve and protect my customary rights and interests for the area (KB8). My social, cultural, and moral obligation as the Traditional Custodian of significant areas within the "southern bounds of Butchulla Country" is truly overwhelming, And the fact that my Great Great grandfather (Jacko Morris) was the last person to coordinate a traditional ceremony in the Tin Can Bay (Tuncunba) Bora grounds also adds weight to importance of making sure my story is finally heard. I will now happily go to the sky country on my last rite of passage knowing that I had fulfilted my duties and obligations as traditional customary law/lore and custom dictates.
(emphasis added)
83 It appears, and I accept, that Ms Barrowcliffe seeks to ensure that her story, referable to her interest in the disputed area, is heard and recorded. I do not accept that this outcome could not be achieved by mediation.
84 I am satisfied that the prospective joinder respondents have demonstrated a prima facie case that they hold native title rights and interests in the disputed area for the purposes of s 84(5) of the Native Title Act.
Whether the interest may be affected by a determination in the proceedings; and
85 As was explained in such cases as Sumner and Harkin, in determining whether or not to grant an application for joinder, the Court does not embark on resolving contested questions of fact or seek to determine where the merits lie. Rather, the question for the Court is whether, having regards to the assertions of fact of the prospective joinder respondents, the Court can be satisfied that their interests may be affected in a demonstrable way by a determination of native title.
86 To paraphrase comments by Rangiah J in Vea Vea at [24], there can only be one determination of native title for an area pursuant to s 68 of the Native Title Act. Plainly a determination of native title in favour of the Kabi Kabi People would affect any native title rights and interests that the prospective joinder respondents may hold for the purposes of s 84(5) of the Native Title Act.
Whether, in any event, in the exercise of its discretion the Court should join the person as a party.
87 As Griffiths J observed in Harkin at [10]:
(i) The following particular factors are relevant to the exercise of the Court’s discretion under s 84(5):
(i) it must be recognised that proceedings under s 61 of the NT Act for a determination of native title are proceeding in rem and bind non-parties. It is fundamental that an order which directly affects a third person’s rights or liabilities should not be made unless the person is joined as a party;
(ii) consideration of the rights and interests of the party joined would lead to a more accurate definition of the native title rights and interests claims, including by limiting the scope of the rights and interests of an applicant;
(iii) the 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 Court’s determination of a s 61 application;
(iv) whether the interest asserted can be protected by some other mechanism, such as where the interests could be protected by some other adequate instrument;
(v) where the applicant for a determination would be prejudiced if the party applicant is joined; and
(vi) the history of the proceedings, including whether there has been unexplained delay by the party seeking to be joined and whether there are well-advanced Court programming orders which would need to be amended to accommodate the proposed joined party, including whether such joinder would jeopardise an imminent trial.
88 More recently in Bell v State of Queensland [2020] FCA 695 Rangiah J observed:
[26] The third element of s 84(5) requires that the joinder is in the interests of justice. In Gamogab v Akiba (2007) 159 FCR 578, the Full Court observed that the factors relevant to assessing the interests of justice include the following:
(1) Whether the applicant for joinder could have been joined as of right if he or she had applied in time: in such a case, the principal issue is to assess the prejudice occasioned to the other parties and the Court by the delay in applying to be joined (at [59]).
(2) It would be odd in this day and age if delay in applying, in itself, were to radically prejudice a potential party (at [59]).
(3) It is fundamental that an order which directly affects a third person’s rights or liabilities should not be made unless the person is joined as a party (at [60]).
(4) Considerable weight should be given to the statutory intention of having all parties whose interests may be affected before the Court at the one time to be dealt with by the one determination (at [64]).
(5) If necessary, conditions may be imposed upon a joinder (at [63]).
89 The Kabi Kabi Claim in its various iterations has been on foot since May 2013. Mr Barrowcliffe and Ms Barrowcliffe filed their interlocutory applications on 7 March 2023. The delay in the filing of the interlocutory applications is substantial. It is this delay for which the Kabi Kabi Applicant contends the prospective joinder respondents have provided no reasonable explanation. The Kabi Kabi Applicant primarily relies on this delay coupled with the advanced status of the Kabi Kabi Claim referable to an expected consent determination, in opposition to the exercise of the Court’s discretion to permit joinder.
90 Joinder of the prospective joinder respondents at this stage of the Kabi Kabi Claim would prejudice the Kabi Kabi Applicant, the State, and other parties to the proceeding. However, on balance I consider that their joinder should be permitted.
91 First, I understand that Mr Barrowcliffe and Ms Barrowcliffe are, and at all times have been, unrepresented. I accept their evidence, and submission, that they did not realise until relatively recently that they could seek joinder without legal representation, and that they did not realise the legal steps they were required to take in order to action their concerns.
92 Second, I am satisfied that, at various times, Mr Barrowcliffe and Ms Barrowcliffe have sought to express their concerns, in correspondence, in discussions, and in various meetings, during the period leading to the Cronin Determination and the present proceedings. Significantly, I also note that QSNTS has been involved in proceedings for both claim groups. Much of this correspondence dates from the period prior to 2013. So, for example, I note that in her letter of 14 June 2013 to Ms Sue O’Brien, Research Officer of QSNTS (annexed to Mr Allbrook’s affidavit at “MA-07”), Ms Barrowcliffe wrote:
I also understand from Wati's comments at the last meeting that QSNTS was meeting Kabi Kabi on the boundary issue. I would appreciate a copy of any border research you may have done recently on Butchulla's behalf given the need to reach some agreement with Kabi Kabi. Can you also advise what discussion/approval has been forthcoming from the Applicants on these matters?
93 Further, at the authorisation meeting of 12 October 2009 for the Cronin Determination, Mr Barrowcliffe plainly raised the issue of the dispute area, as is plain from the minute which provided:
Luke Barrowcliffe agreed with the Chair, but said that they may lose the southern country if Kabi Kabi gets over the line first
94 Finally, it appears that the views of Mr Barrowcliffe and Ms Barrowcliffe concerning their interests in the disputed area have received little support from other Butchulla People. However whilst it is unnecessary for me to make any conclusive findings, the level of detail in the evidence of the prospective joinder respondents, including reference to earlier anthropological support for their assertions, is such that I consider the Court’s discretion should be exercised in their favour in this proceeding. I note, again, the evidence of the prospective joinder respondents that they simply were not being heard by either other Butchulla People or QSNTS, and concerning their unsuccessful efforts to obtain pro bono legal assistance to prosecute their interests.
95 I am satisfied that it is in the interests of justice that Mr Barrowcliffe and Ms Barrowcliffe be joined as respondents to the proceeding.
CONCLUSION
96 While orders for joinder will result in prejudice to the Kabi Kabi People, unless the Court permits the joinder application, the prima facie case demonstrated by the prospective joinder respondents will not be considered. There has been delay on the part of the prospective joinder respondents in bringing their interlocutory applications; however, their explanations for that delay are plausible.
97 I am not persuaded however that the Barrowcliffes should be joined to the Kabi Kabi Claim unconditionally. The prospective joinder respondents have reiterated, both in submissions and evidence, that the only interests they have which may be affected by a determination in the proceedings concern the disputed area. There is plainly authority which permits the Court to conditionally join a party as a respondent pursuant to s 84(5) of the Native Title Act: see for example Gamogab v Akiba (2007) 159 FCR 578; [2007] FCAFC 74 at [62]-[63], Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (2007) 164 FCR 181; [2007] FCA 1357 at [39], Kum Sing on behalf of the Mitakoodi People # 5 v State of Queensland (No 2) [2022] FCA 248 at [19]. Accordingly it is reasonable that their joinder be limited in respect of the disputed area.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. |
QUD 20 of 2019 | |
HELENA GULASH | |
Third Applicant | CECILIA COMBO |
Fourth Applicant | MELISSA BOND |
Fifth Applicant | NORMAN BOND |
Sixth Applicant | KERRY JONES |
Seventh Applicant | BRIAN WARNER |
THE COMMONWEALTH OF AUSTRALIA | |
Fifth Respondent | FRASER COAST REGIONAL COUNCIL |
Sixth Respondent | GYMPIE REGIONAL COUNCIL |
Seventh Respondent | MORETON BAY REGIONAL COUNCIL |
Eighth Respondent | NOOSA SHIRE COUNCIL |
Ninth Respondent | SUNSHINE COAST REGIONAL COUNCIL |
Tenth Respondent | AUSTRALIAN GAS NETWORKS (QLD) LIMITED |
Eleventh Respondent | AMPLITEL PTY LTD |
Twelfth Respondent | ENERGEX LIMITED ABN 40 078 849 055 |
Thirteenth Respondent | ERGON ENERGY CORPORATION LIMITED ACN 087 646 062 |
Fourteenth Respondent | NORTHERN SEQ DISTRIBUTOR-RETAILER AUTHORITY, TRADING AS “UNITYWATER” |
Fifteenth Respondent | QUEENSLAND BULK WATER SUPPLY AUTHORITY, TRADIN AS “SEQWATER” |
Sixteenth Respondent | TELSTRA CORPORATION LIMITED ACN 33 051 775 556 |
Seventeenth Respondent | BRETT ROBERT MARSH |
Eighteenth Respondent | TAMMY EVELINE MARSH |
Nineteenth Respondent | JUDITH LESLEY MATTHEWS |
Twentieth Respondent | NEVILLE RAY MATTHEWS |
Twenty First Respondent | COLIN DAVID ROCKEMER |
Twenty Second Respondent | CATHERINE ANNE HARRIS |
LUKE BARROWCLIFFE | |
Interested Person | KATHERINE BARROWCLIFFE |
