Federal Court of Australia

Hippi on behalf of the Gamilaraay People v State of Queensland [2024] FCA 380

ORDERS

THE COURT ORDERS THAT:

1.    The amended interlocutory application filed on 21 October 2022 be dismissed.

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

REASONS FOR JUDGMENT

COLLIER J

1    Before the Court is an amended interlocutory application (joinder application) filed on 21 October 2022 in this proceeding: QUD 290 of 2017 Darryl Hippi & Ors on behalf of the Gamilaraay People and State of Queensland. The joinder application was filed by four individuals seeking to be joined as parties to Native Title proceedings commenced by the Gamilaraay People, namely:

(a)    Regina Munn;

(b)    Clara Munn;

(c)    Raechel Lousie Missen; and

(d)    Leah Mann.

(joinder applicants)

2    The joinder applicants seek the following orders:

1.    Regina Munn, Clara Munn, Raechel Lousie Missen and Leah Mann be joined as parties to the proceeding;

2.    No order for costs; and

3.    Such further orders as the Court sees fit.

(tracking in original)

3    The joinder applicants are Bigambul People.

4    The joinder application was opposed by the Gamilaraay Applicant in these proceedings.

Background

5    The substantive proceedings of this matter have been on foot for several years, with the Native Title Determination Application being filed on 12 June 2017 (Gamilaraay Claim). The Gamilaraay Claim was accepted for registration and entered on the Register of Native Title Claims on 20 November 2017.

6    The notification period in respect of the Gamilaraay Claim commenced on 27 December 2017 and concluded on 26 March 2018.

7    The joinder applicants did not seek to become parties to the Gamilaraay Claim during the notification period.

8    On 30 June 2022, the Gamilaraay Claim was set down for an on-country consent determination to take place in Thallon, Queensland, on 9 September 2022.

9    On 3 August 2022, solicitors, Just Us Lawyers, caused a letter to be sent to the State of Queensland advising that they held instructions from the Bigambul People’s prescribed body corporate, Bigambul Native Tile Aboriginal Corporation RNTBC (BNTAC), to make an application for Bigambul People to be joined to the Gamilaraay Claim, and foreshadowed the filing of an overlapping claim on behalf of the Bigambul People over part of the Gamilaraay Claim Area (3 August 2022 Letter).

10    On 12 August 2022, an interlocutory application (as was originally filed) seeking joinder by the joinder applicants to the Gamilaraay Claim was filed in these proceedings and was scheduled to be heard on 19 August 2022.

11    On 18 August 2022, an application for determination of Native Title was filed by the Bigambul #2 Applicant in QUD281/2022 in respect of an area substantially overlapping the claim in the Gamilaraay proceedings (Bigambul #2 Claim). The Bigambul #2 Applicant was constituted by Ms Leah Mann and others.

12    This joinder application was held in abeyance whilst the Bigambul #2 Claim was heard and determined.

13    On 11 May 2023 I ordered that the Bigambul #2 Claim be struck out pursuant to s 84C of the Native Title Act 1993 (Cth) (Native Title Act), or alternatively be summarily dismissed pursuant to r 26.01 of the Federal Court Rules 2011 (Cth): Mann on behalf of the Bigambul People #2 v State of Queensland [2023] FCA 450.

14    The joinder application came before the Court on 12 September 2023.

Evidence

Evidence of the Joinder Applicants

Leah Mann

15    In her affidavit filed on 12 August 2022 Leah Mann deposed, in summary, the following:

    Through her mother, Ruth Turnball, she descended from the Bigambul ancestor Nellie Yumbeina. Her mother’s family all identified as Bigambul, and she had been told about Bigambul country by her mother and her mother’s siblings such as Aunty Josie and Uncle Tony Turnbull.

    Bigambul country was described to her in terms of the major waterways. She was told that Bigambul’s western boundary was the Moonie River, while the eastern boundary was the Condamine and Dumaresq Rivers. The Barwon and McIntyre Rivers and the McIntyre Brook were also important waterways in Bigambul country. This was called Cap Rock country. The country that drained into those waterways was Bigambul country.

    Ms Mann was also told they were on country when they were at places such as Toobeah, Bungunya, Talwood, Daymar, Thallon, Mungindi, Goondiwindi, Yelarbon, Tara, Milmerran and Inglewood.

    Ms Mann detailed where her ancestors lived before she was born, including at Bungunya and where she lived at a child, including at Turtle Bend on Yarrlawaana Creek which runs from Talwood to Toobeah. Her family moved around when she was young, following work for her parents and grandparents, and avoiding authorities who took children.

    When she was a child she either lived at or went on family trips to most of Bigambul country. Much of the time when her family travelled, they would take back-roads and bush tracks to get to places and stop for bush tucker that they saw.

    Ms Mann gave the following evidence concerning the most important things she learnt to do on Bigambul country:

15.    The most important thing I learned to do was to look after our country. In those days a stock route ran alongside the Barwon Highway. These days the stock route is not used any more. It is all done by road trains. The droving of cattle did a lot of damage to our country, especially when they strayed. Bush tucker plants were eaten and trampled underfoot. The noise and dust would drive the wildlife away - the pigeons and kangaroos would clear out and the vegetation would take weeks to grow back. This was very serious for us, because we could not depend on the odd stray sheep to feed us, although I cannot deny that I might have seen a bit of duffing in my time. We depended on the bush to feed us so it was our job, my cousins and mine, to make sure that all along the stock route from Nindigully, right though to Talwood, Bunguyna, Toobeah and the stock yards at Callandoon the cattle did not stray from the stock routes. We also kept them away from our waterholes especially from Yarrilawaana Creek and Redbank Creek, so they are not muddied up or soiled.

16.     Another important job I was taught to do when I returned home as a teenager was to care for our important sites. We made sure that the native rock wells at Weengallon were clear of debris and that saplings did not grow on the Talwood bora ground and that our burial sites were kept clear of rubbish and respected. Even where graves are marked, and most are not, I find chip packets left by kids and old tyres by car stealing vandals.

17.     One of the most useful skills I learnt was how to feed myself and survive in the bush.

My regular diet was made up of Quandongs, Coori Tree berries, snotty gobbles, thistle stems, pig weed, prickly pear, gubbas, napans, bumble tree fruits, bush limes and bush apples. I learnt when these bush foods were in season and where to they grew and how to harvest them. My uncles and aunts taught me to hunt. I lived off porcupine, rabbits, kangaroos, sand goannas and snakes. As I grew older and better with practise, I never came back without a Kangaroo tail or a porcupine. As well as skinning and curing a kangaroo hide I also became pretty skilled at dressing a sheep. I have taught my kids these skills and they know how to live off the land.

    Ms Mann gave evidence of using traditional bush medicines found on her Bigambul country and using these medicines as a barter trade for food with other families in the district.

    Ms Mann further summarised the relationship between the Bigambul People and the Gamilaraay People:

22.     Getting back to the claim by the Gamilaraay people, it isn't right that they can claim our country like that. In the old days when I was living down there, the Gamilarray families I knew such as the Knox's, Cubby's and the McGrady's accepted that country west from Bungunya to Mungindi and north following the Moonie River was Bigambul country. Most of the Gamilaraay families were married in with us. We lived together as one mob and there was never really an issue with them using our country. However, it came as quite a shock that they had claimed this country as their own without even talking to us.

    In relation to the Gamilaraay Claim, Ms Mann deposed:

23.     I am very disappointed that the QSNTS and the State Government didn't consult with my family before agreeing to recognise Gamilaraay families as the traditional owners of Bigambul country. It is not as though QSNTS didn't know about us, as they spoke to members of my family when we were going for recognition over the adjoining area which at the time included Talwood. Since becoming aware of the Gamilaraay claim I have spoken to my brothers and sisters and not one of them has said that QSNTS asked them whether we were ok with the Gamilaraay claim taking in Bigambul country.

24.     As for the State Government, at the authorisation meeting which I spoke of earlier, I was shown a map which was prepared by the anthropologist commissioned by them, which placed Talwood and the area around the Moonie River within Bigambul Country. I don't see how they could have ignored this advice and agreed to recognise the Gamilaraay families as the traditional owners of this country, cutting out my family and the Bigambul people.

16    In a subsequent affidavit filed on 9 August 2023 Ms Mann deposed, in summary:

    Her family had never followed or supported Russell Doctor. Ms Mann stayed away from all Bigambul authorisation meetings when Russell Doctor was “in charge”.

    Ms Mann “used to get snippets of information from Uncle Tony who tried to keep tabs on what was going on”.

    The area west of Talwood was very significant to her and her family. She believed her family was sold out by Russell Doctor and his supporters.

    Ms Mann had actively pushed for BNTAC to lodge a new claim to cover her family’s country to the west of Talwood, which was the reason why she became an applicant for the Bigambul #2 Claim and sought to join the Gamilaraay Claim. Ms Mann further deposed that she wanted to “stop those who now style themselves as Gamilaraay People as being recognised by the Court as the traditional owners of my family’s country.”

    Ms Mann further deposed that at the time she became an applicant to the Bigambul #2 Claim, she did not know that the Gamilaraay Claim had been filed or that it was proceeding to a consent determination.

    Ms Mann further clarified that Granny Emily, to whom she referred in her affidavit filed 12 August 2022, was an Armstrong, and that Ms Mann was also connected to Bigambul through the Armstrong line.

    Ms Mann gave evidence concerning stories associated with her family’s country that she had learned from her family members.

    Ms Mann gave evidence of her totem from the men on her mother’s side, which connects her to the country of her family.

    Ms Mann elaborated on her earlier evidence regarding her responsibility caring for the Aboriginal rock wells at Weengallon, and in particular that her family was the custodian of an ancient ceremonial track in the area.

Clara Munn

17    In her affidavit filed on 12 August 2022 Clara Munn deposed, in summary:

    Her mother, Josephine Turnbull, was a Bigambul woman through Nanna Armstrong (“Nanna Emily”). They were descendants of Nellie Yumbeina. Her father, Reginald Munn, did not belong to the same country or mob as her mother. Her family followed her mother’s line.

    For most of her childhood she lived at Toobeah. Nanny Emily first told her at Toobeah that that land was their country. She deposed that her elder brother, Tony Turnbull, later explained to her what this meant:

10.     I did not dare ask Nanna Emily what she meant but later I asked my elder brother, Tony Turnbull. He explained to me that we were direct descendants of the original aboriginal people who lived on the country before the settlers and pastoralists came to the area and our rights to the country were passed on from them. Tony told me that our country wasn't just Toobeah but the whole district. He explained to me that our family was part of a larger group of aboriginal people whose traditional country extended west from Toobeah to include the Bungunya, Talwood, Thallon and then north to Nindigully, following the Moonie River to its headwaters. He said that it included all the country about Tara between the Balonne and the Condamine Rivers and east wards to around Cecil Plains, Millmerran and Inglewood. He told me that our traditional country also extended south across the NSW border and included Whalan Creek.

    Ms Munn gave detailed evidence of the bush medicines and food:

16.    Mum knew a lot about bush medicines and tucker and we scoured the country side for bush tucker and medicinal plants. We went out on country hunting echidna and sand goanna. We were on the lookout for snotty gobbles, thistle stems, pig weed, prickly pear, naipan and bumble tree fruits, bush limes and bush apples. To name a few, we collected medicines from the Euraba bush (boiled leaves for colds, skin irritations and scabies), gumbi gumbi tree (sticky eyes and tea for muscle soreness and general ills), quinine bundi bush (for bites), penny royal plants and the lemon scented Eucalyptus (to deter mosquitos and midges which were at times in plague proportions in the low lying country of the Weir River) and bloodwood sap (treats sore eyes, wounds, burns and sores and to tan kangaroo skins).Although our main places to get these things were from around Toobeah because it was within walking distance from where we mostly lived, Mum didn't draw any distinctions as long as she was on her country. She was just as happy to get medicines from Talwood and Thallon if we were out that way. As I said, she was always on the lookout (from the old rattler) for a good specimen of a plant, tree or shrub that could be of use to us. When she found one, we would go back to the place, time and time again, being careful not to take too much at one visit so as not to kill or damage the plant.

18    In her affidavit filed on 16 August 2023 Ms Munn deposed, in summary:

    Ms Munn attended the authorisation meeting of the Bigambul People held on 17 April 2015. At the authorisation meeting, a QSNTS representative told them that if they voted to remove the country west of Talwood (which was her granny’s country) he would not allow other people to put a claim over it without talking to the Bigambul People. Ms Munn voted against this but the vote was ultimately lost.

    Ms Munn did not know that QSNTS had put in a Native Time Claim over her granny’s country without speaking to them first. There were no meetings called, and Russell Doctor and the other applicant did not say anything about it.

    The first Ms Munn heard about the Gamilaraay Claim was when her nephew, Justin Saunders, came to see her about her previous affidavit of 4 August 2022 and told her that Gamilaraay People were claiming Native Title over Talwood, Thallon and west of the Moonie River.

    Ms Munn had not heard of the “Gamilaraay” until recently.

    Ms Munn’s family had lived on country with Toobeah, Bungunya, Talwood, Thallon and Nidigully for all time, and she grew up on that country.

19    Ms Munn further deposed:

14.    I do not see how the Gomeroi or the Gamilaraay people have a right to get Native Title on my granny’s country. It is disrespectful to us, as the real owners of that country.

15.    I want to stand up and fight for my granny’s country. I will not stand by and let the Court make the mistake of giving it to wrong people who do not belong to it.

Regina Munn

20    In her affidavit filed on 12 August 2022 Ms Regina Munn deposed, in summary, that she had corresponded with QSNTS, in her capacity as Chair of BNTAC, in July 2022 in respect of the board of BNTAC being aware of and consulted in respect of the proposed Gamilaraay consent determination. Ms Munn annexed correspondence with QSNTS to that affidavit.

21    In her affidavit filed on 9 August 2023 Ms Munn deposed, in summary:

    She did not know about the Gamilaraay Claim or that it was going to consent determination before writing to QSNTS on 22 July 2022.

    The new Bigambul claims were filed without any discussion by the Board of BNTAC in respect of the area covered by the Gamilaraay Claim. The focus of the Bigambul People was internally on the extent of Bigambul traditional country. The new Board of BNTAC wanted to find out whether it was possible to claim the full extent of Bigambul traditional country because they knew from their families that the determination did not cover it all.

    The previous leadership of BNTAC ran it in a dictatorial fashion, and, after it was removed, the BNTAC Board had no files, records, office or money. They also inherited legal battles.

    She belongs to Bigambul country through Granny Emily and Grandfather Bob Turnbull, and is a direct descendant of two Bigambul apical ancestors, James Armstrong and Nellie Yumbeina. She is also related to the descendants of Susan of Welltown.

    The Gamilaraay Applicant Audrey Flick is also a descendant of Susan of Welltown, who was Bigambul.

    Except for these proceedings, she had never heard of Gamilaraay. She had only heard of people being described as Kamilaroi or Gomeroi. The traditional country of the Kamilaroi or Gomeroi people is further south, beyond Gil Gil creek in New South Wales.

    She learned about her country from her mother Josie Turnbull and Granny Emily. As a child she lived at Toobeah, Bungunya, and Talwood. She went to school at Talwood school and her mother worked on Talwood station. She was taught by elders the traditional way of collecting bush tucker, surviving off the country, and what plants were good for medicine.

    She detailed her physical and spiritual connection to the land, particularly the totem of her family (the Wedge Tailed Eagle).

    When a member of her family passes, away from her family’s country, they take their ashes back and scatter them on waterways such as Yurrilwarina Creek (Turtle Bend) which flows into the Weir River.

    It is her family’s responsibility to care for their country.

Raechel Missen

22    In her affidavit filed on 12 August 2022 Raechel Missen deposed, in summary:

    Her father, Peter Turnull, was a Bigambul man through James Armstrong. Her mother, Gwendoline Knox, was a Gamilaraay woman although she spent much of her life and raised her family on Bigambul country. Ms Missen has two brothers and a sister, and they know they are Bigambul People. Her father and other relatives told her that she was a Bigambul person, and a direct descendant of the Aboriginal people who inhabited the country since the dream time.

    Ms Missen’s father told her that she was a Bigambul person and taught her about Bigambul People and Bigambul country. He told her that Bigambul country extended from Bungunya to Thallon and west to the Moonie River near Mungindi. She was also said that Bigambul country followed the Moonie River north all the way to Tara and all the country between Balonne and Upper Condamine belonged to the Bigambul People. Towards the east, she was told that Bigambul country included the Cap Rock country (north east of Goondiwindi) and on both sides of the McIntyre and Weir Rivers.

    The areas around and including Bungunya, Talwood, Thallon and Nidigully are Bigambul country, not Gamilaraay country. Ms Missen did not know until recently that Gamilaraay People had made a claim over that country. When she was growing up, there was no distinction that those areas belonged to Gamilaraay People and not the Bigambul People.

23    In her affidavit filed on 10 August 2023 Ms Missen deposed, in summary, the following:

    Ms Missen and her family were not supporters of Russell Doctor. Russell Doctor did not talk to her or her family and did not tell her or her father that QSNTS had told him they were putting a claim over Talwood, Daymar, and Thallon. If this information had been communicated to her and her family, her family would have demanded that something be done to stop it.

    QSNTS should have told the Bigambul People that they were also looking after the Gamilaraay Claim. Ms Missen had never known the Gomeroi or Gamilaraay to lay claim to lands in Queensland. She understood from her mother’s family that their traditional lands were in New South Wales.

    She first found out about the Gamilaraay Claim in July 2022 when the board of BNTAC discussed it. Prior to this, it was not discussed by the board of BNTAC from the time Ms Missen joined the board in January 2022 and was not discussed at the authorisation meeting on 24 April 2022.

    Despite having a Gomeroi connection through her mother’s side, she has never discussed Native Title business or the existence of a Gamilaraay Claim with her mother’s family members.

    Ms Missen reiterated evidence in her previous affidavit, including that places around Toobeah, Bungunya, Daymar, Thallon, Lalaguli, Talwood, Meriott, Gradna and Nindigully Reserves were on Bigambul country. Her father told her that there were rock wells connected by an ancient Aboriginal track to the camps around the Bigambul bora ground at Talwood, and that he was the caretaker of the rock wells and the track.

    She was told by her father that she had a responsibility to care and look after his country. She wants to stop the Court from recognising the wrong people as the traditional owners of that country. The Gamilaraay Claim covers her father’s country.

Colin Hardie

24    In his affidavit dated 12 August 2022, Mr Hardie deposed in summary as follows.

25    He attended a meeting of the Bigambul People held on 17 April 2015 held for the purpose of considering whether to authorise amendments to the Bigambul People’s Native Title Claim, including whether to remove areas around Talwood from the claim.

26    Mr Hardie deposed that Mr Wishart of QSNTS advised that he would be prepared to give a solicitor’s undertaking that if the Bigambul People authorised the removal of the Talwood area from their claim, no further claim over that area would be made with the support of QSNTS until the Bigambul People had been consulted. Mr Hardie deposed that on 13 October 2016 he received a letter from Mr Wishart in relation to the Talwood area advising of a proposed Native Title claim over the area. Following further correspondence, on 31 October 2016 Mr Hardie received an email from Tim Wishart stating that the recommended claim would include an area “proximate to Talwood”.

27    On 3 August 2022 Mr Hardie sent a letter to the State of Queensland advising that the Bigambul People would be making application to the Court to join the Gamilaraay Native Title Determination Application, and file an overlapping claim.

28    Prior to the Bigambul determination, the Bigambul Applicants instructed Mr Hardie to join the Gomeroi Application NSD37/2019 in New South Wales.

29    He did not seek nor receive instructions for Bigambul People to become respondents to the Gamilaraay Claim notwithstanding that many of the families involved in that claim were the same, because until his firm began working on a new claim for the Bigambul People adjoining the determination area he was unaware of the Gamilaraay Claim. He believed that QSNTS was committed to consulting with the Bigambul People before proceeding with any claim over the Queensland side of the border.

30    Mr Hardie deposed that his firm had instructions to file a new Native Title claim on behalf of the Bigambul People which overlapped the Gamilaraay Claim.

31    Mr Hardie subsequently gave more detailed affidavit dated 4 August 2023. Mr Hardie gave evidence of his history in working with the Bigambul People and some of the history of the disputation between various groups, including when he became the solicitor on the record for them on 18 July 2011.

32    Mr Hardie gave evidence of circumstances attending programming orders to take the first Bigambul Claim to trial on 6 March 2015, and his view that a compromise with QSNTS was required to avoid the prospect of a trial. Agreement was reached that the Bigambul Applicant support the joinder of QSNTS on the basis that the anthropologists attending the expert conference consider whether the descendants of certain apical ancestors related to Sally Nerang were incorporated into the Bigambul claim group, and the areas west of Talwood would be removed from the claim on the basis that the Bigambul People reserved their right to reassert their Native Title rights and interests in that area.

33    Mr Hardie gave evidence of the apparent financial pressures suffered by the Bigambul People at that time, as they received no funding or financial support for the Bigambul Native Title claim.

34    Mr Hardie referred to anthropological evidence, including the opinion of anthropologist Daniel Leo that the area west of Talwood should not be deleted from the Bigambul Claim area.

35    Mr Hardie deposed that a meeting of the Bigambul People was held on 17 April 2015 attended by, inter alia, Tim Wishart, Andrew Preston and a researcher from QSNTS. Mr Hardie deposed:

24.    The meeting for me was very emotional, there were a significant number of people who clearly did not want to remove the descendants of Sally Nerang from the claim group description. Tim Wishart addressed the meeting and assured those in attendance that no claim over Talwood would be filed with the support of QSNTS unless the Bigambul People were consulted and further research was completed. Having regard to the contents of paragraphs 10 and 18 above, where NTSCorp asserted to having extensive consultations with QSNTS and the admission of Tim Wishart that it had already received a report from Jitendra Kumarage, I had little faith that there would be genuine consultation with the Bigambul People about any new claim. I decided not to challenge what Tim Wishart said at the meeting. It was already a difficult meeting and I did not want to affect the outcome (my instructions were to support the resolutions proposed by the Applicants)…

36    Mr Hardie gave further evidence concerning the significant financial pressure the Bigambul Applicant was experiencing at that time.

37    Mr Hardie gave detailed evidence about an authorisation meeting held on 9 September 2016 by the Bigambul People, where the claim group gave approval to the s 87 Agreement, the approval for the proposed PBC, and to enter into various indigenous land use agreements. He further gave detailed evidence about his difficulty in receiving instructions, liaising with QSNTS, and the progress of the Bigambul Claim. Importantly he deposed:

39.    On 21 January 2019, I met with Justin Saunders who was the CEO of BNTAC at my office. On resoltution [sic] of the dispute with Russell Doctor for control of the Bigambul entities, he had emailed me to say that he was keen to catch up to discuss some of the history that led the various agreements with proponents on Bigambul Country. During the meeting we discussed amongst other things the history relating to the Bigambul Native Title determinations. It became apparent that BNTAC had very little corporate knowledge of the history behind the Bigambul determinations and they did not possess any records or files in relation to these matters. For example, they did not possess the expert reports. At his request, the next day I forwarded by email all of the anthropological reports used to support the Bigambul determinations. I also informed Justin Saunders that there were a number of matters that had been in abeyance since the conclusion of the determination proceedings that I had been unable to progress because I could not get instructions from Russell Doctor. I told him that one of the most important matters was pursuing a new Native Title claim over the areas identified as Bigambul Country by Daniel Leo. He asked me to draft letters of engagement for consideration by the Board of BNTAC of all the matters that were currently in abeyance. On the 7 Febrauary 2019, I forwarded to him an email attaching a draft terms of engagement for a new Bigambul Native Title claim.

38    Mr Hardie gave evidence concerning the default judgment given against Russell Doctor in the Federal Court on 13 September 2019, and Bigambul Limited being placed in liquidation on 22 September 2020. The liquidator demanded the amount of $1,014, 923.73 from BNTAC, being the amount awarded against Russell Doctor in the Federal Court, following which a claim against BNTAC was filed in the Supreme Court of Queensland. Mr Hardie deposed that defending that proceeding required extensive resources from BNTAC, and the proceedings remained on foot. Mr Hardie deposed that BNTAC faced further litigation in both the Supreme Court of Queensland and the Federal Court.

39    Mr Hardie deposed:

48.    As can be seen from the above, almost from the day that I was engaged to prepare the new Native Title claim (refer to paragraph 42 above) BNTAC had been mired in litigation. This effectively sapped its financial capacity to authorise a new Native Title claim. Added to this was this was the issue of the COVID-19 outbreak which effectively ruled out large gatherings of people for authoristion [sic] meetings from March 2020 to November 2021.

40    Mr Hardie gave detailed evidence concerning the attempts in 2021 and 2022 to organise an authorisation meeting of the Bigambul People.

41    Mr Hardie repeated his evidence concerning when he became aware that the Gamilaraay Claim had been set down for a consent determination.

42    In respect of the joinder application Mr Hardie deposed:

58.    I refer to the amended interlocutory application dated 21 October 2023 to add Regina Munn to the joinder application. The amendment resulted from the refusal of the Gamilaraay Applicant to talk to Regina Munn in the Court ordered mediation process about her interests in the area of the Gamilarray claim area because she had no "official status" as either a Bigambul Native Title Applicant or as a prospective indigenous respondent to the Gamilaraay claim. Regina was chair of BNTAC at the time and she told me she felt very strongly that the Gamilaraay claim was improperly over her families traditional country. She was adamant that she didn't want to standby and see a determination of native title made in favour of the wrong people because the Court or and the Gamilaraay Applicant would not listen to her.

Justin Saunders

43    At material times Mr Saunders was the Executive Director of BNTAC. In his affidavit dated 5 September 2023, Mr Saunders deposed that at the time of the Bigambul authorisation meeting of 24 April 2022, he was not aware that the Gamilaraay People had filed a Native Title claim; that Gary Saunders was an applicant for that claim; and that the Gamilaraay Claim was proceeding to a consent determination. He did know that the Gomeroi People had made a Native Title claim up to and inclusive of the McIntyre River, and he had learned from his discussions with the Goondiwindi Regional Council that the Gomeroi/Gamilaraay People had been involved in cultural heritage clearances in the area covered by the existing Bigambul determination. He believed that the Gomeroi/Gamilaraay People were attempting to expand their influence across the border from New South Wales.

44    Mr Saunders deposed that since mid-2019 the Board of BNTAC had considered a new Native Title claim to cover the balance of the Bigambul traditional country not covered by the existing determination, noting that anthropological reports confirmed that the Bigambul determination area did not cover the full extent of Bigambul traditional country. However, until the beginning of 2022 BNTAC lacked the resources to progress a further Native Title claim.

Evidence of the Gamilaraay Applicant

Mr Allbrook, Mr Wishart and Ms Sharma

45    In his affidavit filed 30 August 2023 Mr Allbrook deposed, in summary:

    On 14 September 2017 the directors of the BNTAC resolved to engage and instruct QSNTS in all matters pertaining to future acts and cultural heritage, however such representation ceased no later than 26 October 2018 and did not appear to have included any services relating to Native Title claims matters.

    Until 30 August 2023 QSNTS had expended $450,038.00 in public money on the Gamilaraay Native Title claim application, excluding costs associated with the St George Regional Research Project or costs associated with various steps in progressing matters to the point where connection was accepted by parties such as day to day file management.

46    The affidavits of Timothy Wishart filed on 10 January 2023 and Sheree Sharma affirmed on 4 November 2022 were summarised in Mann on behalf of the Bigambul People #2 v State of Queensland [2023] FCA 450 at paras [29]-[45].

Mr Gary Saunders

47    Mr Saunders deposed, in summary, as follows:

    He was one of the persons comprising the Gamilaraay Applicant, and one of his roles was to deal with persons or organisations seeking to work on or to arrange for work to be done on the Gamilaraay Claim area. In September 2021 he engaged with an organisation doing work on a property overlapping both the Gamilaraay area and the Bigambul area, and Mr Justin Saunders.

    He attended the authorisation meeting for the Gamilaraay Claim in 2017. In his experience, the holding of authorisation meetings is the type of event that Aboriginal people in a local community will hear about and discuss among themselves. Mr Saunders referred to this type of discussion as the “Murri Grapevine”, being communication by word of mouth in the Aboriginal community. He further deposed:

5.    …When an authorisation meeting like this is held the Murri grapevine goes into overdrive….When authorisation meetings happen I know that people go out of their way to let their family members and other members of their community know about what is happening.

6.    I am informed continually about all types of happenings across all Aboriginal mobs that know me. For example about the success or failure of native title claims or about water and cultural heritage matters. All of these types of issues are discussed by phone continually.

48    Mr Saunders also deposed that Gamilaraay Elders were disappointed because the Gamilaraay determination was cancelled because of the conduct of the joinder applicants.

Mr Stanley McGrady

49    Mr McGrady deposed in his affidavit filed on 30 August 2023, in summary:

    He referred to para [22] of the affidavit of Ms Leah Mann, in particular her evidence that the McGrady family accepted that country west from Bungunya to Mungindi and north following the Moonie River was Bigambul country. Mr McGrady deposed that he did not know Leah Mann, and rejected her evidence in this respect.

    Talwood, Thallon, Nindigully down to Mungindi was all Gamilaroi country. He was told so by older relatives, and learned of this sitting around the campfire.

    His Uncle George Orchard told Mr McGrady the country around Talwood and Thallon was Gamilaraay country.

Submissions

50    At the hearing, the joinder applicants, the Gamilaraay Applicant and the State of Queensland were all represented by Counsel.

Submission of the Joinder Applicants

51    The joinder applicants submitted, in summary:

    The joinder applicants have traditional roles and responsibilities in respect of the area west of Tallwood to the western watershed of the Moonie Rivers. Their interests would be affected if a determination of Native Title which failed to have regard to their rights and interests were to be made.

    The joinder applicants did not seek to become parties to the Gamilaraay Native Title claim during the notification period under s 84(3) of the Native Title Act as they were unaware of the existence of the Gamilaraay Native Title claim.

    The joinder applicants did not become aware of the Gamilaraay Claim until Mr Hardie brought the claim to their attention on or about 20 July 2022.

    The Court should be satisfied by both the indigenous witness evidence and the expert evidence that the joinder applicants have an “interest” that would be affected by any determination.

    Self-evidently, a determination of Native Title in favour of a group other than the Bigambul People, in respect of land in which Bigambul People hold an interest, affects the interest of Bigambul People. Not only would such a determination by its nature destroy any pre-existing interest in land, it would also have the added effect of characterising the assertions of Bigambul People as illegitimate whilst potentially giving the imprimatur and finality of the Court’s determination to claims that have not withstood proper scrutiny or been shown persuasively to be legitimate. Such an outcome would be a denial of rights coupled with humiliation and would plainly affect Bigambul interests.

    Although the joinder applicants conceded that there had been a delay in commencing the joinder application, this must be properly understood in the broader context. The passage of time since lodgement of the Gamilaraay Claim did not disclose neglect or inattention, weighed against the substance of the matters the joinder applicants sought to raise, so as to deprive the joinder applicants of the right to participate in the proceedings. Various factors, including change in governance of BNTAC and issues related to the exit of Russell Doctor, cumulatively weighed in favour of the Court exercising its discretion to allow the joinder application.

    For the entirety of the notification period relating to the Gamilaraay Claim, the only legal representation afforded to Bigambul interests was that representation provided by QSNTS. QSNTS appeared to have left Bigambul People to entirely their own devices. The absence of effective representation of the interests of Bigambul People in relation to the Gamilaraay Claim coincided with revelations and repercussions concerning the conduct of Russell Doctor, including a legacy of litigation involving BNTAC. Any consultation that QSNTS may have had with Bigambul People prior to filing the Gamilaraay claim seemed to have omitted any meaningful contact with persons who ought to have been consulted, including the lay witnesses relied upon by the joinder applicants.

    QSNTS served the interests of the Gamilaraay claimants whilst offering no information or advice concerning the Gamilaraay Claim to the Bigambul claimants. QSNTS did not take any steps to bring the commencement, registration and notification of the Gamilaraay Claim to the attention of Bigambul People, which disadvantaged the joinder applicant as persons who might have joined as respondents during the notification period.

    Evidence of the joinder applicants was that they did not know of the Gamilaraay Claim, nor were they or their families consulted by QSNTS about it.

    Even if a submission that the joinder applicants must have had notice either directly or indirectly was maintainable, such submission faced extreme difficulties by reason of the complete absence of any benefit to the joinder applicant in failing to promptly respond to such notice.

    The suggestion that notice of the Gamilaraay Claim had been received by the joinder applicants but was deliberately ignored seemed to contemplate wide and calculated collusion where there were four joinder applicants and other parties involved. The probabilities firmly favour a conclusion that the Gamilaraay Claim did not come to the attention of the joinder applicants other than as indicated in their evidence after authorisation of the Bigambul #2 Claim.

    In any event, delay on the part of a Native Title applicant does not prevent joinder, where the interlocutory applicant has established that they have asserted Native Title rights and interests in the subject area for a substantial time.

    Despite a focus of the cross examination of each of the joinder applicants being the common lineage from Nellie Yumbeina, there was not a need to demonstrate the existence of a group of a kind capable of prosecuting an application for a determination of Native Title under the Native Title Act. It should not have been seen as part of the joinder applicants’ case that their respective ancestries did not include other forbears who might equally or otherwise give rise to a legitimate interest in the land and waters covered by the Gamilaraay Claim.

    Reliance on lineage from Nellie Yumbeina provided an efficient means by which each of the four joinder applicants had demonstrated a necessary interest. The fact that the interest might be one which allowed or founds an assertion of Bigambul identity is an incidental consequence of the particular interest concerned and does not give rise to a wider obligation to explain the demographic limits of Bigambul identity or to bring forward witnesses who are representative of all branches or a representative set of branches in lines of descent associated with Bigambul identity. That the four joinder applicants could trace their descent from a single ancestor disclosed no deficiency in their joinder application.

    It is not appropriate in determining an interlocutory application to attempt to resolve issues of controversy amongst anthropologists or to delve into and weigh the merits of opinions, sources and more remote materials.

    At the hearing, it was not put to the joinder applicants (except insofar as Ms Regina Munn was questioned concerning the scattering of ashes in waterways) that their evidence of past and contemporary affiliations and patterns of behaviour were an inadequate foundation for the holding of an interest that may be affected by a determination of Native Title.

    Noting that the Bigambul #2 Claim has been struck out, there was no plan or intention to initiate or advance a comparable claimant application in respect of the area included in the Gamilaraay application. The joinder application represents the only opportunity for the joinder applicants to be heard and/or influence any determination that may be made in respect of an area over which the joinder application have genuinely asserted interests.

    The joinder applicants relied on anthropological research of Dr Philip Clarke, who concluded (inter alia) that on the western side of the Bigambul People’s determination area, Nindigully, Talwood and Thallon were considered to be Bigambul country.

    The existence of inconsistencies of evidence amongst Aboriginal witnesses as referred to by the Gamilaraay Applicant as to matters communicated to them or observed in their lifetimes, is commonplace unsurprising and ultimately, if of importance a matter for determination on the airing of the full facts at a hearing.

    The “concession” of Dr Clarke relied upon by the Gamilaraay Applicant could not be taken to go further than to describe a state of affairs at a considerable time after effective sovereignty and support the potentiality of a presence at that later time of some Gamilaraay People among landowning groups in respect of areas possibly within some part of the overlap area.

    The Gamilaraay Applicant’s submissions in respect of the joinder applicant’ knowledge of the Gamilaraay Claim relied only on the availability of information and not the actual knowledge of the joinder applicants.

    Correspondence between Justin Saunders, Paul Webb of landscapes Queensland and Garry Saunders was routine correspondence concerning fencing works, and had nothing to do with the Bigambul determination area.

    The submissions of the Gamilaraay Applicant in relation to the Bigambul #2 Applicant’s willingness to compromise were misplaced.

    That four persons asserting Bigambul identity jointly applied caused no deficiency in their application.

    Reliance on public notification as amounting to “all reasonable notice” was not adequate where the aspirations of the Bigambul People were known to QSNTS.

    To the extent that the Gamilaraay Applicant pressed a case against the joinder applicants relying on the availability of information concerning the Gamilaraay Claim, factors weighing against imputing such knowledge or capacity to the joinder applicants were:

•    The potential for a claim being made in the Talwood area by a group other than the Bigambul People was uncertain, and no timeframe for the eventual filing of such a claim was identified;

•    The promised “consultation” with the Bigambul People took the form of a St George Regional study in relation to which information sessions were announced without any specific indication that the regional study should be treated as the consultation promised at the time the Bigambul #1 applicants chose to reduce the area of their then current claim;

•    There was no suggestion that the disarray in BNTAC and the distraction caused by that disarray and consequential developments had been exaggerated or was in any way confected; and

•    The suggestion that the register could have been searched assumed an access to technology, a capability of managing it and a knowledge of and capacity to confidently navigate and reliably extract information from the Internet.

Submissions of the Gamilaraay Applicant

52    The Gamilaraay Applicant submitted, in summary:

    The authorisation of the Gamilaraay Claim and its existence were always matters of public record. The email sent by QSNTS to Mr Hardie in October 2016 made it clear that a Gamilaraay Claim which included Talwood was to be made. Mr Russell Doctor and Ms Cheryl Moggs were informed of this by Mr Hardie.

    The existence of the Gamilaraay Claim was foreshadowed by an extensive and inclusive research project in which the joinder applicants could have participated, as did other Bigambul People. There was also public notice of the proposed Gamilaraay Claim.

    The lack of contact between Mr Hardie and Mr Russell Doctor, the alleged internal troubles of Mr Doctor and BNTAC, and the blaming of QSTNS did not provide explanation of why the joinder applicants did not inform themselves via publicly available avenues under the Native Title Act at any time since 2017.

    There could be no doubt that Justin Saunders and BNTAC knew of the existence of the Gamilaraay Claim in September 2021 at the latest. Justin Saunders and Gary Saunders were sent an email by Southern Queensland Landscapes informing them of a proposed cultural heritage assessment required over an area of a fencing project which indicated that 80% of the area was Gamilaraay Claim area and 20% was Bigambul determination area.

    It was implausible that the BNTAC Board who were “in support of the Fencing Program” did not know about the Gamilaraay Claim. Ms Regina Munn was a director of BNTAC in 2021 and 2022.

    That the joinder applicants were allegedly not aware of the Gamilaraay Claim in the circumstances was unexplained and surprising.

    The claims made by the joinder applicants were that Bigambul country continued beyond the existing determination area and continued to run from Talwood to the Moonie River. Expert reports revealed that evidence from other Bigambul People was contradictory to that of the joinder applicants in this respect.

    Neither the joinder applicants nor Mr Hardie on their behalf took any proactive steps to seek to be joined to the proceeding, or to file an overlapping claim, at any stage after commencement of the Gamilaraay Claim.

    Joinder would delay and frustrate the resolution by consent of the Gamilaraay Claim and would bring considerable injustice to the Gamilaraay Applicant, and several elderly Gamilaraay members who may not survive to see the resolution of the claim if it is further substantially delayed. Allowing joinder at this late state would be oppressive to the interest of the Gamilaraay People.

    It was grossly unreasonable conduct for the joinder applicants to, without adequate explanation, wait almost 5 years before seeking joinder to the proceeding and raising the prospect of an overlapping Native Title claim, and to do so less than a month before the proposed consent determination and after the determination has been authorised by the Gamilaraay claim group.

    The Bigambul People were not inexperienced in Native Title litigation and it was extraordinary that the joinder applications or the BNTAC chair were unaware of the publicly advertised authorisation meeting or of the proceeding. There could be no excuse for failing to consult the Native Title claims register in the circumstances.

    The evidence of the joinder applicants contained omissions and in part was inconsistent with that of other Bigambul People from the same descent line. This ought to be taken into consideration by the Court.

    The joinder applicant’s reliance upon their solicitor, the CEO of BNTAC and the internal procedures of the BNTAC for not being aware of the Gamilaraay Claim was not sufficient.

    It was implausible that the name “Gamilaraay” could not have been known by the joinder applicants by, at the latest, September 2021. This was so in circumstances where Raechel Missen gave evidence that “her mother was a Gamilaraay woman” and Justin Saunders was aware that persons from the neighbouring group referred to themselves as, among other names, “Gamilaraay”.

    The submissions of the joinder applicants ignored the fact that Nellie Yumbeina’s country was in and around Goondiwindi and Toobeah, and it was a matter for the joinder applicants to provide some evidentiary foundation as to how they acquired rights via her lineage to the overlap area and to explain why no other Bigambul lineages now supported this application.

    If the Gamilaraay People were the landowning group in control of Talwood and the Moonie River south of Nindigully, logic dictated that the Gamilaraay People were also the landowning group in control of the “overlap area”. That was fatal to the joinder applicants’ assertion that they held an interest in Bigambul country as descendants of Nellie Yumbeina.

    The evidence of the joinder applicants in respect of the boundaries of Bigambul country was contrary to that of older and more knowledgeable Bigambul persons.

    The evidence of Justice Saunders was contrary to all common experience that Justin Saunders (a Nellie Yumbeina descendant) and two sisters (one of whom was on the Board) would not communicate once one of them had even the suspicion that people identifying as Gamilaraay were conducting cultural heritage work in the Talwood area to the exclusion of the Bigambul People.

    Except for the assertions of the joinder applicants, the evidence was that at sovereignty the overlap area was Gamilaraay country. There was no evidence that tied Nellie Yumbeina to the overlap area.

    The joinder application should be dismissed.

Submissions of the State of Queensland

53    The State of Queensland, in summary, submitted:

    There were two inter-related questions that arose:

(a)    Did the joinder applicants establish a prima facie case that they possessed a relevant interest that might be affected by a determination of the Gamilaraay Claim?

(b)    If the answer to that question was in the affirmative, did the interests of justice favour the joinder to the proceeding of the joinder applicants?

    The joinder applicants had each provided evidence asserting that they were Bigambul People who had Native Title rights in, and a connection to, an area generally around and including Thallon in the Gamilaraay Claim area.

    The joinder applicants had also filed an anthropological report prepared by Dr Phillip Clarke dated 13 June 2023.

    The State’s position was that the joinder applicants had established a prima facie case as to the existence of a claimed interest, and that in the circumstances it was in the interests of justice to allow them to be joined to these proceedings.

    The State did not make submissions in respect of respect of the evidence concerning whether the joinder applicants knew or ought to have known about the existence of the Gamilaraay Claim, as those matters were not of a kind ordinarily to be resolved on an interlocutory basis concerning a question of joinder.

    The joinder applicants had given evidence and identified their belief that Gamilaraay People did not possess rights and interests in those parts of the Gamilaraay Claim that were said to be Bigambul. They had identified that a determination of Native Title in favour of the Gamilaraay People would result in the non-recognition of Bigambul interests.

    Whilst the delay of the joinder applicants in commencing their application late was a relevant matter to weigh in the overall balance, there presently were no orders or Court dates that would be lost as a result of the joinder. The date has already been lost. Further, if joinder was allowed, it was likely that a contested hearing would be required which would cause the Gamilaraay Applicant to lose the expectation that the claim would resolve by consent.

    The Gamilaraay Applicant’s submission that the joinder applicants did not adduce evidence from other Bigambul People in support of their claim was not persuasive. The joinder applicants themselves claimed a relevant interest. That claim was to be assessed on a prima facie basis and was not representative in nature.

    Any inconsistencies in respect of evidence was not a matter to be resolved at an interlocutory application for joinder.

    Whilst one interlocutory application had been filed, four individuals sought to be joined to these proceedings. The question of joinder was to be resolved in respect of each of the four joinder applicants as individuals. The Gamilaraay Applicant had not provided distinction or analysis as to what the evidence established in respect of each individual applicant.

    The joinder applicants’ failure to call either Ted Besley or Kathy Hippi to give evidence in respect of the joinder application did not give rise to a Jones v Dunkel inference.

    There was a contest (including on the expert evidence) as to the existence of the interest claimed by the joinder applicants. The effect of any determination of Native Title would be to conclusively determine that question. In those circumstances, it would be in the interests of justice for the joinder applicants to have an opportunity to be heard in relation to those claims.

    During cross-examination, the Gamilaraay Applicant did not put to any of the joinder applicants that they did, in fact, know about the existence of the Gamilaraay Claim at some earlier time, or that their claim to possess interest in the Gamilaraay Claim was untruthful or otherwise incorrect.

    The Gamilaraay Applicant’s submissions as to delay must be considered in light of the failure to put critical matters to the joinder applicants, and must be weighed against the consequence of a determination of Native Title.

    Even if the evidence established that Mr Justin Saunders knew or ought to have known about the Gamilaraay Claim, it did not follow that that knowledge ought to be imputed to the joinder applicants.

Consideration

54    Section 84(5) of the Native Title Act provides:

Joining parties

(5)     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.

55    Principles applicable to the exercise of the Court’s discretion under s 84(5) were explained in Sumner v State of South Australia [2014] FCA 534:

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] FCA 797; (1997) 78 FCR 1 at 7E-G, 8A (Black CJ) (Byron) (emphasis added); Davis-Hurst v Minister for Land and Water Conservation (NSW) [2003] FCA 541; (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.

(see also Forrest on behalf of the Kakarra Part A Native Title Claim Group v State of Western Australia [2023] FCA 529, Wilson on behalf of the Wirangu People v South Australia [2022] FCA 829)

56    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].

Prima facie interest

57    It is uncontroversial that a person claiming to hold Native Title rights and interests in an area of land and waters affected by a Native Title determination application has a sufficient interest to be joined as a party to those proceedings under s 84(5): Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [5]. Further, a member of another Native Title group may seek to be joined as a respondent for the purpose of “defensively asserting” Native Title rights and interests. Such a person is only permitted to pursue a personal claim to such rights and interests, that is, to protect them from erosion, dilution or discount: Blackburn v Wagonga Local Aboriginal Land Council (2021) 287 FCR 1; [2021] FCAFC 210 at [54]; Blucher on behalf of the Gaangalu Nation People [2018] FCA 1369 at [21].

58    However a person cannot seek to be joined as a party to a Native Title claim in a representative capacity for the purpose of asserting Native Title rights on behalf of another group. As Rangiah J explained in Blucher at [21]:

… That is because the combined effect of ss 13, 61, 213 and 225 is that an application for a determination of native title can only be made by a duly authorised applicant using the procedures in Pt 3 of the NTA.

59    The facts the subject of the decision of Reeves J in Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 provides a useful analogy to the present case.

60    In Isaacs, the Court considered a joinder application in respect of a Native Title claim made under s 61 of the Native Title Act on behalf of the Turrbal People, which covered numerous parcels of land within the external boundary of the lands and waters of the Turrbal People, including the central business district of the City of Brisbane and many of its suburbs lying north and south of the Brisbane River. The relevant joinder applicants were three individuals who claimed to hold Native Title rights and interests as members of the Yugarapul People in an area overlapping land and waters covered by the Turrbal claim, and gave evidence to that effect. Justice Reeves found that the joinder applicants had:

17.    … shown, at least on a prima facie basis, that the native title rights and interests they claim to hold as members of the Yugarapul People could be affected by the determination of the Turrbal People’s application because a part of the Turrbal People’s claim area appears to overlap those lands and waters.

61    His Honour at [18] noted that various decisions of the Federal Court had established that where a person sought to be joined as a respondent to Native Title proceedings on the basis that he or she claimed to hold Native Title rights and interests in an area of land or waters that may be affected by a determination in those proceedings, that person may only do so if he or she wished to pursue a personal claim or interest in defensively asserting those Native Title rights and interests or, in other words, to protect them from erosion, dilution or discount. His Honour continued:

18.    However, if that person wishes to obtain a positive determination of native title on behalf of his or her people, clan or group, then the Act prescribes that the only method by which that can be achieved is an application under s 13(1), complying with the requirements of s 61 et seq of the Act. Among other things, this means that a person cannot be joined as a respondent party if his or her purpose in being so joined is to act as a representative to assert native title rights on behalf of other people: Munn at [9]; Moses v Western Australia (2007) 160 FCR 148; [2007] FCAFC 78 at [18]; The Commonwealth of Australia v Clifton (2007) 164 FCR 355; [2007] FCAFC 190 at [48], [52], [53], [57], [58] and [61] and Bonner at [19].

62    His Honour observed at [20] that it was clear from the form of the joinder applicants’ original notice of motion and the affidavits they filed in support that they wished to pursue a representative claim on behalf of the Yugarapul People. His Honour referred to evidence including the following:

22.    In Ms James’ affidavit in support of that notice of motion filed on 18 May 2011, she said, among other things, that:

We, the Yugarapul People, wish to claim native title rights in the area defined by the Yugarapul People traditional boundary map (Annexure B2). This is the traditional land of the Yugarapul People where we have continually exercised our native title rights throughout history from traditional days up until today when we, the descendants continue the usage of the Yugarapul land and waterways in accordance with our traditional laws and customs.

23.    Ms Sandy’s affidavit also filed 18 May 2011 contained an almost identical statement. She said:

My people wish to claim native title rights in the land defined by the Yugarapul People (Annexure B). This is the traditional land of the Yugarapul People where we have continually exercised our native title rights throughout history from traditional days up until today when we, the descendants, continue the usage of the Yugarapul land and waterways in accordance with our traditional laws and customs.

24.    As I have alluded to above, the applicants appear to have become aware of this impediment to their application because, on 29 June 2011, they filed an amended notice of motion which, as well as including Mr Desmond Sandy as an applicant, deleted the words: “on behalf of their family clans and the Yugarapul People or as Yugarapul Elders”. Despite this deletion, both Ms James and Mr Sandy filed affidavits in support of the amended application that made it clear that, while the form of their application may have been changed, the true substance of it was that they wished to pursue a representative claim on behalf of the Yugarapul People. In his affidavit filed on 29 June 2011, Mr Sandy said, among other things, that:

My people wish to claim native title rights in the area defined by the Yugarapul ... People (Annexure B). This is the traditional land of the People where we have continually exercised our native title rights throughout history from traditional days up until today when we, the descendants, continue the usage of the Yugarapul land and waterways in accordance with our traditional laws and customs.

25.    While Ms James was not quite so frank about the purpose of the amended application in her affidavit filed on 15 July 2011, in my view it is clear from its contents that she is seeking to positively assert the native title rights and interests of the Yugarapul People rather than pursue any personal interest she may have to protect those native title rights and interests from erosion, dilution or discount by the process of the Court determining the Turrbal People’s application. An example of this is contained in the final paragraph of her affidavit where she says:

The Turrbal claim area needs to totally withdraw from the southside of the Brisbane River. Some of my people are ‘sick’ today because they felt second-class and suffered from living in the shadows of white man’s society, now that should not happen again by not being properly recognised on our own country. In the 1800’s there was more than one Aboriginal in Brisbane and surrounding areas. Many descendants live there now, the southside of Brisbane is connected to my and their traditional country.

26.    For these reasons, I consider it is clear that the applicants are seeking to pursue a representative claim on behalf of the Yugarapul People rather than a personal claim. It follows that their application to be joined as respondents for that purpose must be refused.

63    Returning to the joinder application presently before me, I am satisfied on the evidence that the joinder applicants have shown, at least on a prima facie basis, that the Native Title rights and interests they claim to hold as members of the Bigambul People could be affected by the determination of the Gamilaraay People’s application within the meaning of s 84(5) of the Native Title Act, because of the claimed overlap between the area the subject of the Gamilaraay Native Title determination application and the land and waters the four joinder applicants contended as Bigambul.

Are the joinder applicants pursuing personal claims?

64    The next question however is whether the joinder applicants wish to pursue personal claims or interests in defensively asserting those Native Title rights and interests to protect them from erosion, dilution or discount, or whether they are seeking joinder as respondent parties for the purpose of acting as representatives to assert Native Title rights on behalf of other people.

65    On the material before me, I am satisfied that the joinder applicants seek joinder in a representative capacity, to assert Native Title rights on behalf of members of the Bigambul People, rather than a personal claim.

66    First, while the joinder applicants claim personal Native Title interests in the Gamilaraay Claim area, on balance the evidence in the present proceedings indicates that the purpose of the joinder applicants is to assert a Native Title claim in respect of the Gamilaraay Claim area on behalf of the Bigambul People. So for example, in her affidavit filed 12 August 2022, Ms Leah Mann deposed:

22.    Getting back to the claim by the Gamilaraay people, it isn’t right that they can claim our country like that. In the old days when I was living down there, the Gamilaraay families I knew such as the Knox’s, Cubby’s and the McGrady’s accepted that country west from Bungunya to Mungindi and north following the Moonie River was Bigambul country. Most of the Gamilaraay families were married in with us. We lived together as one mob and there was never really an issue with them using our country. However, it came as quite a shock that they had claimed this country as their own without even talking to us.

23.    I am very disappointed that the QSNTS and the State Government didn’t consult with my family before agreeing to recognise Gamilaraay families as the traditional owners of Bigambul country. It is not as though QSNTS didn’t know about us, as they spoke to members of my family when we were going for recognition over the adjoining area which at the time included Talwood. Since becoming aware of the Gamilaraay claim I have spoken to my brothers and sisters and not one of them has said that QSNTS asked them whether we were ok with the Gamilaraay claim taking in Bigambul country.

24.    As for the State Government, at the authorisation meeting which I spoke of earlier, I was shown a map which was prepared by the anthropologist commissioned by them, which placed Talwood and the area around the Moonie River within Bigambul Country. I don’t see how they could have ignored this advice and agreed to recognise the Gamilaraay families as the traditional owners of this country, cutting out my family and the Bigambul People.

67    Similarly in her affidavit filed 9 August 2023, Ms Leah Mann deposed:

4.    …I am currently a member of the Bigambul Elders Advisory Committee, and I am on the Gunawinna Bigambul Trust.

5.    I have actively pushed for BNTAC to lodge a new claim to cover our family’s country to the west of Talwood. That is why I became an Applicant for the Bigambul #2 claim and that is why I am persisting with my application to join the Gamilaraay claim. I want to stop those who now style themselves as Gamilaraay People as being recognised by the Court as the traditional owners of my family’s country.

68    Ms Raechel Missen’s affidavit of 12 August 2022 is to the effect that her father is a Bigambul man who is very knowledgeable about Bigambul culture. She deposed for example:

9.    …Dad tells me that he would be prepared to tell the Court about my family’s connection to Bigambul people and our traditional country, as he feels very strongly about our obligation to fight for what is rightfully ours.

69    Ms Missen continued:

12.    Dad described Bigambul country to me. He told me when I was young that Bungunya belonged to us, but he also told me that the country of the Bigambul people didn’t just stop at Bungunya, but it included the other settlements all the way to Thallon and west to the Moonie River near Mungindi. He said that the Bigambul country followed the Moonie River north all the way to Tara … Dad told me that in the north all the country between the Balonne and Upper Condamine belonged to the Bigambul people and in the east it included the cap Rock country (north east of Goondiwindi) and on both sides of the McIntyre and Weir Rivers.

13.    I have been told that country west of Talwood to Thallon and south to Mungindi and north to Nindigully has been claimed on behalf of the Gamarilaraay People. Until recently, I did not know that this country had been claimed by them. Some of the people involved in this claim I recognised as being related to my mother’s family… When I was growing up there was no distinction made by Aboriginal families that Talwood, Thallon and Nindigully belonged to my mother’s people (Gamilaraay People) and not the Bigambul People and I do not see how such a distinction can be made now. As far as I am concerned this is Bigambul country and it belongs to my father’s family.

70    In her affidavit dated 10 August 2023 Ms Missen continued her evidence, in particular as follows:

7.    …In my previous affidavit of 12 August 2022, I said that my dad is very knowledgeable about Bigambul country. We lived at Bungunya when we were growing up. He took me and our family out bush at every opportunity. There are reserves all around the Toobeah, Bungunya, Daymar, and Thallon. Some reserves are no more than paddocks that were once used for agistment on the stock routes (not much droving these days), but others had a reliable source of water. There is quite a good reserve at Newinga. It fronts onto the Weir River and has some good fishing spots nearby. Other places we went to were the Toobeah, Lalaguli, Talwood, Woolonga, Meriott, Daymar, Gradna and Nindigully Reserves. Dad told me that these places were on Bigambul Country and that in days gone by his people lived on those reserves (that had water) with their families (because these were the only places they were allowed to go). He said that when the authorities in Queensland came after them to take their children, they slipped across the Weir River into NSW. One of the important places we went to were the Aboriginal rock wells at Weengallon. Dad used to go there all the time to clean up the mess left by travellers.

He told me that the rock wells are connected by an ancient Aboriginal track to the camps around the Bigambul bora ground at Talwood. He told me that they were the last place for water for clans travelling south to the bora grounds for ceremony. He also said that Bigambul people camped at the rock wells before travelling north to country along the Moonie River. He told me that he was the caretaker for the rock wells and the track that connected them to the camping grounds and bora at Talwood. This track as well as the reserves (apart from Toobeah, Lalaguli) referred to above are on the country covered by the Gamilaraay claim (although the rock wells and the bora ground may lay just outside it).

8.     Dad told me as a child that I had a responsibility to care and look after his country. That is why I became a director of BNTAC and why I agreed to make application to join the Gamilaraay claim .

9.     I know that the Gamilaraay claim covers my dad's country and they have done this without asking the permission of dad or my family. This is the reason I want to join the Gamilaraay claim. I want to stop the Court making a terrible mistake by recognising the wrong people as the traditional owners of this country.

71    In her affidavit dated 12 August 2024, Ms Regina Munn relevantly deposed:

3.    The truth is that I did not know, nor did I hear anything from the other members of the Board about the Gamilaraay claim. I was on the Board of BNTAC when we authorised the new Bigambul claims. The intention of the Board in arranging the authorisation meeting was to reclaim all of Bigambul traditional country. …..

4.    My point is that the discussion about filing the new Bigambul claims (which as it turned out partly overlapped the Gamilaraay claim), was made without any discussion or consideration by the Board of the area covered by the Gamilaraay claim. Our focus was internally on the extent of Bigambul traditional country. The new Board of BNTAC wanted to find out whether it was possible to claim the full extent of Bigambul traditional country because we knew from our families that the determination didn't cover all of it.

…..

9.    Except for my involvement in the current proceedings, I had never heard of Gamilaraay. It is certainly not a word used to describe people in the local community now or when I was growing up. However, I have heard people in the aboriginal community where I live as being described as Kamilaroi or Gomeroi people. The problem for the Gamilaraay Applicant is that the traditional country of the Kamilaroi or Gomeroi people is further south beyond Gil Gil creek in NSW. I do not see how the very same people can assert they are the Gamilaraay people, in their own right, on the Queensland side but over the border in NSW, they are Gomeroi or Kamilaroi people and hold their traditional lands not on their own but in conjunction with the descendants of other ancestors.

…..

13.    It is because of the physical and spiritual connection of my family and I to the country west of Talwood to just beyond the Moonie River, that I must stand up for it.

14.    The country needs to be cared for and it is my family's responsibility to do it. I do not wish to see other people recognised as the traditional owners of this country when they are not.

72    The evidence of Ms Clara Munn is less suggestive of being in a representative capacity than that of the other joinder applicants. I note that Ms Clara Munn, for example, referred to the fact that her family had lived on country around Toobeah, Bungunya, Talwood, Thallon and Nindigully “for all time” (affidavit 16 August 2023 para 13) and that she did:

14.    …not see how the Gomeroi or the Gamilaraay people have a right to get Native Title on my granny’s country. It is disrespectful to us, as the real owners of that country.

73    However I also note the following evidence of Ms Clara Munn in her affidavit dated 16 August 2023:

1.    I attended the authorisation meeting of the Bigambul people held on 17 April 2015 at the Princess Theatre in Toowoomba.

2.    People from Queensland South Native Title Services (QSNTS) attended the meeting. I did not know who they were until they told us.

3.    This stuck in my mind because we were asked to agree that they could enter and I knew that ever since the Applicants stopped them from being lawyers for our Native Title claim, they were not helping us.

4.    I was suspicious of why they were attending the meeting.

5.     My suspicions were well founded when one of them tried to persuade us to agree to remove the country west of Talwood from our Native Title claim. This country is part of my granny's country, and it is very special to me and my family.

74    Ms Munn further deposed:

14.    I do not see how the Gomeroi or the Gamilaraay people have a right to get Native Title on my granny’s country. It is disrespectful to us, as the real owners of that country.

15.    I want to stand up and fight for my granny’s country. I will not stand by and let the Court make the mistake of giving it to wrong people who do not belong to it.

75    I am satisfied that each of the joinder applicants are positively asserting Native Title rights and interests of the Bigambul People rather than seeking to protect personal Native Title rights and interests from erosion, dilution or discount by the process of the Court determining the Gamilaraay People’s application.

76    My views in this respect are strengthened by the fact that Ms Leah Mann was the lead applicant in respect the Bigambul #2 Claim in which, as I have noted above, the Native Title applicant, on behalf of the Bigambul People, sought a determination of Native Title under s 61(1) of the Native Title Act as descendants of apical ancestors who identified and were recognised as Bigambul People in accordance with the traditional laws and customs acknowledged observed by them. The Native Title determination application filed by the Bigambul People overlapped 68.38% with the application filed by the Gamilaraay People. As I noted in Mann on behalf of the Bigambul People #2 v State of Queensland [2023] FCA 450:

    the Bigambul #2 Claim was filed contemporaneously with the present joinder application; and

    On 18 August 2022 the Bigambul #2 Native Title Applicant submitted in correspondence to the Court that the present joinder application was now “otiose” as the Bigambul #2 Native Title Applicant could now “agitate for recognition of their Native Title rights and interests directly [in the Bigambul #2 Claim] rather than making an application for joinder to the Gamilaraay Claim as a defensive measure” (see Mann at [17]);

77    The present joinder application must be refused on the basis that joinder applicants seek to be joined in a representative capacity.

Discretionary considerations

78    In any event, I am satisfied that it would not be in the interests of justice to allow the joinder application for the following discretionary considerations.

79    Submissions were filed concerning discretionary considerations for the Court to consider, referable to delay on the part of joinder applicants in seeking joinder. Evidence was given, for example, by Ms Regina Munn in her affidavit filed 9 August 2023 that she did not know, nor hear anything from the other members of the BNTAC Board concerning the Gamilaraay Claim. This evidence was consistent with evidence of the other joinder applicants, including, for example, oral evidence of Ms Leah Mann at the hearing (transcript, 12 September 2023, p 28 ll 22-26); affidavit of Ms Raechel Missen filed 10 August 2023 (paras 1, 2, 3 and 4); affidavit of Ms Clara Munn filed 17 August 2023 (para 11). Evidence was also given by the joinder applicants concerning the alleged failure of Mr Russell Doctor to keep Bigambul People informed of events referable to their country, including the Gamilaraay claim.

80    Ms Missen deposed that she only became aware of the Gamilaraay Claim at the BNTAC Board meeting in July 2022 (affidavit of Raechel Missen filed 10 August 2023 para 3). Similar evidence was given by Ms Regina Munn (affidavit of Regina Munn filed 9 August 2023 at para 2). Ms Clara Munn gave evidence that she was told of the Gamilaraay Claim by Mr Justin Saunders some time after 4 August 2022 (affidavit of Clara Munn filed 17 August 2023 para 11). At the hearing Ms Leah Mann gave evidence that she became aware of the Gamilaraay Claim after the Bigambul authorisation meeting (transcript 12 September 2023 p 19 ll 20-24).

81    In my view however, none of this evidence detracts from factual findings I made in Mann at [200], including that:

    In 2016 QSNTS communicated to the lawyers for the joinder applicants, Just Us Lawyers, that the Gamilaraay People intended to pursue a Native Title determination application in respect of an area in the region of Talwood; and

    The Gamilaraay Claim was a public claim, in a geographical area where both Gamilaraay People and Bigambul People resided, and where both claim groups had common members.

82    Importantly, I also note:

    Evidence of Ms Leah Mann that most Gamilaraay families “were married in with us [Bigambul People]. We lived together as one mob and there was never really an issue with them using our country” (affidavit of Leah Mann 12 August 2022 para [22]); and

    evidence of Ms Raechel Missen that she had “a Gomeroi connection through [her] mother’s side” and that she was quite close to her mother’s side (although she deposed that she had not discussed Native Title business with her mother’s family) (affidavit of Raechel Missen filed10 August 2023 para 5).

83    As I observed in Mann at [7], a public authorisation meeting was held on 4 March 2017 by the Gamilaraay People to authorise the bringing of a Native Title determination application, and matters had progressed such that consent orders were made on 30 June 2022 for an on-country consent determination for the Gamilaraay Claim to be held in Thallon on 9 September 2022.

84    I consider it implausible that the joinder applicants only became aware of the Gamilaraay Claim in or around July 2022, as they contended. Discretionary considerations of the interests of justice would not favour an order that the joinder applicants be joined to this proceeding, in light of the lateness of the joinder application.

CONCLUSION

85    The appropriate order is that the amended interlocutory application filed on 21 October 2022 be dismissed.

Associate:

Dated:    18 April 2024

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