Federal Court of Australia

Douglas on behalf of the Kabi Kabi First Nation Traditional Owners Native Title Claim Group v State of Queensland (No 4) [2024] FCA 641

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application for joinder filed by Margrett Gilson on 12 June 2024 be dismissed.

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

REASONS FOR JUDGMENT

COLLIER ACJ:

1    On 10 June 2024 the Federal Court of Australia made an order that a consent determination hearing be listed at 10.30am on 17 June 2024 in Brisbane in respect of Part A of a Native Title Determination Application of the Kabi Kabi First Nation Traditional Owners Native Title Claim Group (Kabi Kabi People).

2    On 12 June 2024 an interlocutory application to join parties to the main application after relevant period was filed in these proceedings by Ms Margrett Gilson (joinder application). Ms Gilson sought to be joined to these proceedings as a respondent party pursuant to s 84(5) of the Native Title Act 1993 (Cth) (Native Title Act).

3    The joinder application was opposed by both the Kabi Kabi People and the State of Queensland.

4    For reasons that follow the joinder application filed by Ms Gilson is dismissed.

BACKGROUND

5    Relevant background facts to the present joinder application are set out in my judgment in Douglas on behalf of the Kabi Kabi First Nation Traditional Owners Native Title Claim Group v State of Queensland (No 2) [2024] FCA 385 at [4]-[13] (Kitson judgment). I adopt that summary of relevant facts.

6    In the Kitson judgment I ruled that a joinder application to the present proceedings commenced by another applicant, Mr Gregory Kitson, be dismissed.

7    I note that Mr Kitson annexed to his affidavit filed 11 October 2023 an affidavit of Ms Gilson dated 7 October 2023 (Gilson October 2023 affidavit). In the Kitson judgment I observed:

28.    I note that in Ms Gilson’s affidavit she referred to her interlocutory application seeking joinder as a respondent to the Kabi Kabi Claim because of her claimed rights and interests in and around Kilkivan.

29.    No interlocutory application of Ms Gilson is currently before the Court.

MS GILSON’S AFFIDAVIT

8    For the purposes of the joinder application, Ms Gilson relied on an affidavit sworn on 11 June 2024 (Gilson June 2024 affidavit). In this affidavit Ms Gilson deposed:

    Ms Gilson was not acting on behalf of the Wakka Wakka community as a group, but rather for her individual interests in her Country.

    Ms Gilson sought to be joined as a respondent party to the Kabi Kabi Claim because she had Native Title rights and interests in and around Kilkivan.

    She had been taught by her Wakka Wakka elders since she was young that the Kilkivan Area belonged to the Wakka Wakka People, and that she had rights and obligations to all of that area under Wakka Wakka traditional laws and customs.

    Nearly all of the Kilkivan Area fell within the Kabi Kabi claim, although some areas fell within Wakka Wakka country.

    If there was a determination of Native Title in favour of the Kabi Kabi People over those parts of the Kilkivan Area that fall within the Kabi Kabi People, then she believed that her ability to exercise her Native Title rights and interests as a Wakka Wakka person in and around these areas would not be possible.

9    Ms Gilson deposed that the interests which would be affected by a determination in the proceedings were as follows:

9.    I was born in 1945 on Cherbourg Aboriginal Settlement, Queensland. I grew up in Cherbourg community and surrounding areas.

10.     I am a descendant of Wakka Wakka apical ancestors Wigton Davey Law and Kitty Law and I identify as a Wakka Wakka person through them, who are my great grandparents on my father's side of my family.

11.     As a descendant of Wigton Davey Law and Kitty Law, I am a common law Native Title holder with respect to the land and waters of the Wakka Wakka #3 Area, as a result of a Native Title Determination by Justice Rangiah of the Federal Court on 12 April 2022.

12.     Six of Wigton Davey and Kitty Law's children were born in Kilkivan including – Eric Law 1880's, Julie Law 1899-1900, Robert Law 1887, Lucky Pickering (nee Law) 1886-1892, Lockwood Law born 1889, Ida Law 1890. This comprises of six siblings of my Grandfather George who was born at Gayndah in the 1800's. My grandfather George has no recorded birth certificate. My Great grandparents Wigton Davey and Kitty Law had a total of 11 children. This family information has been confirmed from my personal history information research through the Department of Aboriginal and Torres Strait Islander Affairs. Please see Annexure MG2 - copy of letter dated 7 July 1938 stating birth place of Ida Chapman (Law) contained within my family information from the Department of Aboriginal and Torres Strait Islander Affairs.

13.     From what I have learned from archival records including letters of Archibald Meston dated 9 May 1901 and 20 August 1901, Great Grandfather Law was living in Kilkivan, on his traditional Country, with his wife Kitty Law and younger siblings including my grandfather George Law at the time that they were forcibly removed by Queensland authorities to the Barambah settlement (now Cherbourg and part of the Wakka Wakka #3 Area) in 1901. The Meston Letter records that my grandfather, George Law was 30 years of age at the time of their removal from Kilkivan to Barambah, making his approximate year of birth 1863, 1873 or 1880. I have confirmed this information from the Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships, Community and Personal Histories Office. After my ancestors' forced removal from Kilkivan to Barambah in 1903, Meston wrote that "the Kilkivan blacks and those from Durundur are in separate camps about 60 yards apart. The Kilkivan blacks, being in their own Country, and having plenty to eat, are apparently contented'. The Meston letters confirm what I have always been taught by my elders, and what I have always known, that when my ancestors were removed from Kilkivan, they were living on their own traditional Wakka Wakka Country and taken to another part of Wakka Wakka Country at what is now Cherbourg.

14.    I am the eldest child of Vincent Fredrick Law (Snr) and Marjorie Joan Law (nee Clevens). I am the eldest of twelve children. My father was born in Cooyar and is the son of George Law and Kate Garde. My father grew up around the Kilkivan area and then the family got moved to Cherbourg near the Barambah Creek.

15.     I was raised by my Wakka Wakka father Vincent Fredrick Law (Snr) and my Grandfather George Law and his brothers Robert and Lenny also lived in the same house during my childhood. My grandfather George and my uncles commenced introduction to our custodianship of our Country after the birth of my younger brother, Vincent (Jnr). With the arrival of my first-born brother Vincent Law (Jnr) - it was Wakka Wakka lore that he, as the first born of a Law man, was required to be introduced to his responsibilities of his custodial Country, which is his ancestral right. My whole family accompanied my father – Vincent Law, they included my grandfather - George Law and my uncles - Robert and Lennie Law to sacred sites. Other members of my family also attended my mother Marjorie Law, my younger brother Vincent Law (Jnr), my sister Patricia Daanen (nee Law) and witnessed ceremonies such as Grandmothers Dreaming, Ole Stone Man, Old Man dancing rituals at Proston and we were taught the stories and lore by them. My father, Vincent Law, reinforced these teachings to me and my siblings through story-telling and ceremony as this is the custom of the Wakka Wakka people. My father taught me that this knowledge was passed down through selected generations of people that identify and display responsibility and respect for Wakka Wakka Country. The bora rings were for ceremonies for initiation, joining's such as marriage, death and children. There are both men and women places. As the first-born girl, under customary Wakka Wakka lore, my title was Mim Bardi and I as taught by my father that I am to look after all children of my siblings during my lifetime in this culturally specific role. I was taught by my father that this lore existed before colonisation and continues. My father, uncles and grandfather taught me and I have always known that I am Wakka Wakka, and that I have traditional rights and obligations that are grounded in the Kilkivan Area of Wakka Wakka Country, including my role as Mim Bardi. As a patrilineal tribe its lore that the Mim and the eldest males carry "bardi". So it is my responsibility to see that the descendants of Davey Law and George Law share this knowledge.

16.    Based on what I have been taught by my Wakka Wakka elders, our traditional law and custom is that Aboriginal people who identify as Wakka Wakka inherit traditional rights to Wakka Wakka Country through their descent from a parent who holds (or held) rights in Wakka Wakka Country through their descent from a Wakka Wakka ancestor. Although we as Wakka Wakka people hold communal rights over all of Wakka Wakka Country as one mob through the native title system, I was taught by my father and grandfather that only certain families belong to particular areas within Wakka Wakka Country that we may speak for, have an obligation to look after and protect, and who must participate in important decision-making about matters that may impact on the area. The Wakka Wakka nation was originally a small tribe with 4 clans, 2 moieties and had 4 sacred sites with 5 bora rings. The trade route was marked as the song lines predicated. I was taught that the Law family, being the descendants of Wigton Davey and Kitty Law is one of a small number of Wakka Wakka family groups who are allowed to speak for and participate in important decisions about the Kilkivan Area. The other Wakka Wakka family groups for the Kilkivan Area, under our traditional law and custom as I understand it, are the descendants of Aggie and Stockman Bligh and Mick and Lena Buck.

17.     The traditional rights and interests that I claim to hold over the Kilkivan Area are the same as that I, and other Wakka Wakka People, have been determined to hold over the Wakka Wakka #3 Area as described in full in QUD 276 of 2019, Wakka Wakka People #3 v State of Queensland (No 2) [2022] FCA 370, at Annexure MG-3.

18.     I was taught by my father and grandfather that hunting and gathering occurred seasonally, ceremonies and rituals were performed on specific site and maintenance of the site was done by men specifically and the women's site at Coalstoun Lakes was maintained by women of the Wakka Wakka tribe. I was taught by my father and grandfather and I fished with them at the Big River where the Uangee lived, so we had to be quiet and careful so as not to disturb the people on the other side. I was taught about and visited the medicine place with my father at Mount Walsh, which is in the Blackbutt region, for the harvesting of traditional medicine. Throughout these journeys we would together experience the earthy elements of our stories, the breathing life of our Country. These stories bought my Country to life and I strengthened my spirit and connection to Country.

10    Ms Gilson deposed that it was in the interests of justice that she be joined as a respondent to the proceedings for reasons as follows:

19.    Under Wakka Wakka traditional law and custom, as I have been taught by my elders, I have an obligation and duty to look after and protect my Country, including its important traditional cultural sites such as Grandmother's Dreaming, Old Stone Man and Snake Dreaming. The four sacred sites of my Ancestors which hold stories of my Ancestral history are Mimmbardi (Grandmother's Dreaming) Gummbard (Old Man Dancing) Guthooyim (Snake Dreaming) and Bunjibardi (Ole Stone Man). The fourth sacred site Old Man Dancing has been destroyed. Travelling from Cherbourg Aboriginal Settlement by horseback and walking, we would go to Goomeri and on to Kilkivan and on to the Grandmothers Dreaming site first. We would camp every night and travel in the day time. These visits would take the whole family approximately three weeks. We would leave the horses at the foot of the range and walk towards Grandmother's Dreaming site calling to our ancestors and stating our names and let them know we were on country. Once on site I would see my father, grandfather and uncles clear the sacred site from bush kindling and re-stack the stones and ensure that the site was clean of any underlying forest cuttings. We sometimes camped at Widgee Creek. I was taught by my father, uncles and grandfather that failure to uphold these obligations with respect to the Kilkivan Area would result in serious consequences for me and other members of the Law family, as well as the other Wakka Wakka families who have a particular connection to the Kilkivan Area. I was taught by my father, uncles and grandfather that when the Lore is broken our families would be banished from the tribe and never spoken of again. If you took something from a sacred site, as described above, without the proper rituals your fingers would be smashed as a punishment.

20    It is my understanding, based on information given to me by my daughter that the Kabi Kabi Claim is proceeding towards a consent determination, and that the proposed determination area will include parts of the Kilkivan Area covered by the Kabi Kabi Claim.

21     If there is a determination of Native Title in favour of the Kabi Kabi People over any part of the Kilkivan Area, then I will have lost my traditional rights as a Wakka Wakka person to those areas. I fear that I would no longer be able to look after and protect the important Wakka Wakka cultural sites that I have a duty and obligation under my traditional law and custom to look after and protect. This will result in me and other members of my family being unable to maintain and access the site and therefore an inability to maintain our traditional responsibilities and Lore. If I cannot uphold my obligations to Country under lore, I was taught by my grandfather, father and uncles that my family and I would have to show blood as a means of punishment for not retaining the sites. As a woman I would be forbidden to visit any other Sacred site within my area. The males in my family would be able to visit after three new moons passed. My female family members would be advised not to visit. My fear in this regard is made worse because it is my understanding that a determination in favour of the Kabi Kabi People would be permanent, and will make it impossible for me, or any other Wakka Wakka People to exercise our traditional rights over any Kabi Kabi determined areas within the Kilkivan Area in the future.

11    Ms Gilson deposed that historically she had been a Wakka Wakka claimant, and never understood why the Wakka Wakka claims did not cover all of the Kilkivan Area. She gave evidence that the Wakka Wakka People had been asking the Kabi Kabi People to remove their claim over the Kilkivan Area since it was first lodged in 2013, and had asked Queensland South Native Title Services (QSNTS) to assist with the dispute. Ms Gilson further understood that there had been meetings in 2014, that QSNTS would conduct further research on who was connected to the Kilkivan area, and that there would be a further meeting however she was not aware of any steps since May 2014. Ms Gilson deposed:

26.     I also understand that in about July 2016, the solicitor for the Wakka Wakka Applicant wrote to the solicitor for the Kabi Kabi Applicant requesting that the discussions between the two groups with respect to the Kilkivan Area be re-opened. It is my understanding, based on information told to me by people who were members of the Wakka Wakka Applicant at the time, that the solicitor for the Kabi Kabi Applicant responded to the Wakka Wakka Applicant's request by indicating that the Kabi Kabi Applicant were waiting for the State of Queensland to respond to their connection materials, and if the State indicated that it was prepared to enter into negotiations towards a consent determination, then the Kabi Kabi Applicant would be willing to re-enter discussions with the Wakka Wakka Applicant regarding the Kilkivan Area. I am not aware that any steps have been taken to re-enter discussions about the Kilkivan Area following the commencement of negotiations between the State and the Kabi Kabi Applicant towards a consent determination.

27.     Based on discussions I have had with members of the Law family, it was always their understanding that steps would be taken to resolve the dispute over the Kilkivan Area.

28.     From around September 2023, I prepared material which could be used to support an Interlocutory Application which could form the basis for a Wakka Wakka Native Title claimant application over Our Country.

29.     My hope is for an outcome that will secure the Wakka Wakka People's rights and interests in all of the Kilkivan Area.

12    Ms Gilson gave evidence as to reasons for her delay in lodging the joinder application. She deposed that she had lived in Mildura until her husband died in 2014, and she returned to Brisbane in 2015 to be closer to her country.

13    In 2016 Ms Gilson’s daughter, Ms Lauren Gilson, asked the QSNTS lawyer Andrew Preston, and QSNTS Anthropologist, Tony Eales, why the Kilkivan area was not included in the Wakka Wakka claim. Her evidence continued:

36.    At my request, Lauren asked Andrew Preston what the line on the Wakka Wakka claim map was that indicates some kind of boundary. Lauren was told that it was a watershed, and no other explanation was provided. This was confusing to me and I did not understand if QSNTS was telling Lauren that this was a cultural boundary between Wakka Wakka and Kabi Kabi and who decided that it was legitimate.

37.     This was confusing because Country had somehow already been "cut up like cake" to suit the native title process instead of QSNTS first of all finding each family with the cultural connections and family history and then proceeding with a more refined and true process.

38.    Cultural mapping, informed by the correct families for the Kilkivan area, including myself, was not part of the process.

39.     Lauren reported back to me that Andrew Preston advised that the Wakka Wakka claims were only to concentrate on areas #3 and #4 and that after the resolution of #3 and #4, QSNTS "would circle back" to assist our family with developing our claim for the Kilkivan area and other areas.

40.     Between 2016 and 2021, Lauren consistently asked QSNTS staff: Andrew Preston, Susan Powell, Ricardo Martinez, Craig Reich, Richard Mosby, Diana Healy and Tony Eales, why was the Kilkivan area not included in the Wakka Wakka claim. Florence Bell can confirm that Lauren in fact did raise this issue of the Kilkivan area constantly and consistently as Florence Bell was party to Lauren's representations on my behalf. She did this at every face to face meeting and regular phone calls with QSNTS and in emails. Please see Annexure MG3 copy of email reply to Ricardo Martinez requesting assistance for Kilkivan area and to consult with me.

41.     I decided that it was incumbent on me to be more direct with QSTNS to influence them to record my cultural knowledge and family history in relation to apical ancestor Kitty Law and our Country.

42.     At my request, Lauren asked Tony Eales to visit me at my home residence at Bray Park and interview me. Lauren also asked Richard Mosby if he could help organise for an anthropologist to visit and record my information.

43.     In 2019, Lauren and I travelled to Gayndah for a Wakka Wakka authorisation meeting that was held at the Gayndah Town Hall. At the meeting, I studied maps relating to the Wakka Wakka claims that were affixed to the walls by QSNTS staff. I voiced my concerns to Lauren again about the Kilkivan area missing from the Wakka Wakka claim and the proposed boundary line which is not the real boundary between Wakka Wakka and Kabi Kabi.

44.    In 2019, in the kitchen of the Gayndah Town Hall, Lauren and I had a conversation about the Kilkivan area missing from the Wakka Wakka claim with QSNTS Lawer, Ricardo Martinez. The response from Ricardo Martinez was that QSNTS was only working on Wakka Wakka claims #3 and #4 and that QSNTS "would circle back" to the Kilkivan area after the determinations for #3 and #4.

45.     On a few occasions not too long before the Covid pandemic, QSNTS staff visited Lauren at our home residence at Bray Park for the purposes of signing and approving documents relating to the Wakka Wakka #3 and #4 claims. However, it seemed too difficult for QSNTS to send an Anthropologist for one day to interview me.

46.     I was of the belief at this point that after the determination for Wakka Wakka #3 that QSNTS would indeed keep their word with me and assist developing my claim for the Kilkivan Area. This belief never occurred and I have been ignored and discarded, even as an Elder of my family and the Wakka Wakka community.

47.     In March 2020, the global Covid pandemic arrived in Australia and essentially stopped everything, including the progression of the Wakka Wakka claims. This also delayed and prospect of QSNTS helping me to develop my claim to the Kilkivan area.

48.     On 5 and 6 June 2021, Lauren attended the first face to face meeting for Wakka Wakka native title since the start of the global covid pandemic. At this meeting, Lauren again approached Ricardo Martinez about the Kilkivan area. Lauren was replaced as applicant for the descendants of Kitty Law by Irene Simpson.

49.     Irene Simpson has never once followed up with me or Lauren about the cultural information and family history that will assist with developing a claim for me to my Country relating to the Kilkivan area.

50.     In 2022, the Wakka Wakka claim #3 was determined at Cherbourg by Judge Rangiah, but it did not include the Kilkivan area. I waited for QSNTS to contact Lauren and I about developing a claim for me for the Kilkivan area, as they had indicated since 2016. This never occurred until over 12 months later and only due to the request by Greg Kitson because as it turns out and I knew, other families were also concerned about Kilkivan and other areas missing from the Wakka Wakka claim.

51.     On 14 September 2023, at my request Lauren attended a mediation meeting at the Virginia Palms Motel at Zillmere with other members of families who are connected culturally to the Kilkivan area and other areas. The mediation was organised by QSNTS at the request of Greg Kitson, who is a Bligh and belongs to apical ancestor, Aggie Bligh under the Wakka Wakka claims and determined areas. I am aware that several Wakka Wakka people from three different family groups attended.

52.     The mediation meeting was between the Kabi Kabi applicant group and the relevant individuals who are Wakka Wakka. The Kabi Kabi somehow are also claiming the same area around Kilkivan. The meeting was deemed a failure because the two sides could not reach any resolution as the Kabi Kabi would not listen to any clear evidence and proof provided by different Wakka Wakka individuals at the meeting.

53.     Lauren reported to me that Ricardo Martinez nominated Greg Kitson as a contact person for a subsequent Interlocutory Application to be made on behalf of the relevant individuals from Wakka Wakka community who were present at the mediation.

54.     On Saturday 16 June 2023, Lauren received a phone call from Greg Kitson and he stated that Ricardo Martinez contacted him by phone on Friday 15 June and informed him that Tim Wishart, Acting CEO at QSNTS, withdrew any assistance to be offered to the individuals who are Wakka Wakka to develop an Interlocutory Application.

55.     I think that this was an unfair and unjust decision to withdraw assistance to me because it is now apparent to me and to Lauren that QSNTS should have assisted me as an individual to make an Interlocutory Application. Whereas, QSNTS considered Lauren and I and treated us as part of a group of people who would share all the same interests in different parts of Country.

56.     To his credit, Greg Kitson did submit an Interlocutory Applicant that appended my information in an affidavit. Greg, Lauren and I thought that appending my information to his single Interlocutory Application would be logical given that QSNTS had treated us like a group who should work together, rather than to put in single Interlocutory Applications according to our individual interests.

57.     Unfortunately, Justice Collier couldn't accept Greg's Interlocutory Application that appended my affidavit. She cites that his attempt appeared to be of group based nature, rather than individuals. That this did not meet the legal requirements under the native title act for an interlocutory application process. Collier also cites that more reasons for the delay in bringing the interlocutory application were needed and some issues with descriptions about connection were present. However, all could have been resolved if an anthropologist or lawyer were to assist each individual. Collier made her decision on 18 April 2024 and dismissed Greg's Interlocutory Application based on these three points.

58.    At my request, on 21 April 2024, Lauren wrote an email to Simon Grant, Registrar, at the Federal Court of Australia and indicated that I would lodge my own Interlocutory Application within two weeks.

59.     I was unable to meet the two weeks deadline I had set for myself because we had a death in the family.

60.     On 24 April 2024, Lauren set up an account on the Federal Court Portal to prepare for the incoming Interlocutory application.

61.     Lauren, Greg Kitson and I also met with the Board of Directors for the Wakka Wakka PBC on Tuesday 7 May 2024 to present and discuss our concerns about Greg's failed Interlocutory Application. The Board are considering what can be done to assist me from their power and influence and were not in opposition to our intentions to lodge new individual interlocutory applications.

62.     I have constantly and consistently tried to have my connections and relationships to my Country in the Kilkivan area acknowledged and developed into either a formalised claim or interlocutory application since 2015. I was 70 when this started and will be 80 in 2025. I am an old age pensioner and I have not ever had the financial capacity to pay the estimated tens of thousands of dollars required to pay and anthropologist to assist me. Neither has my daughter or family. The cost is prohibitive, and the process is at the mercy of outside influences and agendas.

63.     I remember when a few white people came to our house to talk to my Dad and my grandfather. My Dad - Vincent Law would do most of the talking because Grandfather George would not participate. I do not think he shared my father's faith in people accepting the truth. The children were not allowed to sit and listen so we hid under the house. Grandfather would stop Dad sometimes but Dad answered their questions. I remember Dr Betty Watts and another old man we called Dr B. They asked questions about what my people did, where did they go and why. Wakka Wakka country is rich in many things and Grandfather and Dad knew where to find water, food, shelter and precious stones. Around Gayndah and Old Stone Man is the metal gold - blue clay can be found outside of Wondai and outside Kilkivan there are stones that make fire, Goomeri there are pools of salt water. All these places were there we three children went with our Law family. The Archaeologists, Historians and Anthropologists all interpreted my Dad's answers in their own field of interest and with their own biases. Grandfather said they would cause lots of damage to Mother Earth if we showed them there it was. Dad said we have to trust Biami to look after us. Our sacred sites are living entities not physical landscapes. When they are destroyed as Old Man Dancing was - you have destroyed part of our heart and lifestyle. Losing Grandmother's Dreaming site north of Kilkivan is I feel my failure as the eldest child of a Lore Man, my ancestors and my family. As the eldest I was fortunate to spent time with my Grandfather George Law and my Uncles and Aunties on my Dad's side.

64.     Born in the 1940's and growing up in Cherbourg Aboriginal Settlement we could still go and visit sacred sites, perform ceremony and rituals and speak our language. Even within the restrictions of our "Protectors" we could still feed our bellies on traditional foods and our spirits on ceremony and ritual. Aboriginal Law is just and without influence. My brother was allowed into men's business at the sites and he soon learned to show responsibility and respect. It is personal to me because the land owns ME. I don't own the land in a Western sense. Mother Earth is part of me and looks after me. She watches me, laughs with me, cries with me and breathes for me. So it cannot be like losing money or property - it's like losing yourself. As the eldest it was and always will be my responsibility to care for my country. I will never leave it forever because when I leave this earth for the Dreamtime I will be with Mother Earth and Father Sun.

65.     We have attempted many times to get Native Title legal team to listen to us, to help us and to be fair and truthful. We have asked about Kilkivan before.we have asked as traditional owners have to be identified because Cherbourg was a dumping ground of many tribes under the lores of my people if you are born on our lands you are historically a custodian. Traditional custodians have a responsibility - historical custodians have a Duty of Care. Today "land rights" mean money and wealth to my Aboriginal people and tribes. It is understandably the easy way out for many. If it means destroying sacred sites it is a crime under Aboriginal Lore.

66.     I have attempted to gain access to the minutes of the Native Title Wakka Wakka meetings and have had no success. I attended a few of the meetings which always ended up in a public argument between people and got out of control.

67.     I reiterate that I do not want to delay a determination of Native Title being made over the Kabi Kabi People's Country. However, I believe the Kabi Kabi People should first amend the Kabi Kabi Claim to remove any land and waters that cover the Kilkivan Area.

SUBMISSIONS OF THE PARTIES

14    Ms Gilson was unrepresented, and attended the hearing supported by her daughter Ms Lauren Gilson. Ms Gilson made oral submissions, and at Ms Gilson’s request I also allowed Ms Lauren Gilson to make oral submissions.

Gilson submissions

15    In summary Ms Gilson submitted:

    Ms Gilson grew up in Cherbourg and was taken by her aunties, uncles and other family members to many places across her country.

    She travelled to Kilkivan many times and camped just outside of Kilkivan frequently. She often rode there. Her brothers with her grandfather and uncle would go up to the sacred site of Grandmother’s Dreaming.

    As her siblings are deceased and she is the only one still alive who maintained the cultural knowledge, it was her responsibility to maintain the country. When she found out that the Kilkivan area was not in the Wakka Wakka claim, she knew it was her responsibility to get the land back. She went to lawyers but nothing was done.

    She expected QSNTS to work on her requests and assist her.

    She knew Mr Kitson’s grandfather however had never met Mr Kitson until he contacted her daughter Lauren Gilson.

    Ms Gilson began going to meetings but stopped as she got too upset.

    Insofar as her evidence was criticised by the other parties as being too general, the places are sacred to her and her family and she did not want to tell people exactly where the places were as people just want to make money out it. She was taught by her family.

16    In support of Ms Gilson, Ms Lauren Gilson, made in summary the following submissions at the hearing:

    Ms Gilson and her family were left out of the claim process. They approached QSNTS informally many times as they did not realise they had to be formal. QSNTS did not come to their house or speak to Ms Gilson about connection or apical ancestors in regards to Kilkivan.

    For years and years they asked about Kilkivan but every time they were told it would be circled back to. Until Mr Kitson spoke to them, they did not realise that from the perspective of QSNTS, Kilkivan was “off the table” for the Wakka Wakka claims.

    QSNTS never documented the countless attempts made by Ms Gilson and her daughter to ask questions and raise the issue of Kilkivan. Their family was deliberately put to the side. Ms Lauren Gilson was a Wakka Wakka applicant for many years and asked at every meeting about Kilkivan.

    Although they may seem late with their claim, they have tried for years but have been held off from the process and were not given advice that they could pursue such claim on their own for their family. They were given the wrong advice to commence a claim as a group through Mr Kitson. They would have commenced a joinder application many years ago had they known they could. They did not receive justice from QSNTS who were supposed to represent them.

    The Kabi Kabi claim has only been going for 10 years, compared to the Wakka Wakka claim that was going for 20 years.

    QSNTS represented the Kabi Kabi people as well as the Wakka Wakka people. Ms Gilson was not afforded the same rights or resources as the Kabi Kabi People. The Kabi Kabi People received anthropological and mapping support, whereas Ms Gilson did not.

    Justice has not been provided to Ms Gilson. QSNTS did not helpful in any situation they were involved in, and did not provide advice.

    There are no natural geographical boundaries in the mapping.

    Greg Kitson is not relevant to this joinder application.

    This is not the first interlocutory application in relation to this country.

17    The Kabi Kabi People and the State were both represented by Counsel. They also made written and oral submissions.

Kabi Kabi People Submissions

18    In summary, the Kabi Kabi People submitted:

    Ms Gilson has had over a decade to apply for joinder but has delayed doing so until the week before a consent determination is scheduled to be made in respect of Part A of the claim area. This in itself warrants dismissal of the joinder application in the interests of justice, because of the extreme prejudice which would be occasioned if her joinder is permitted at this very late stage.

    Ms Gilson’s own evidence was that she had been aware of the Kabi Kabi claim since at least 2019.

    Ms Gilson’s material closely resembles that of Mr Greg Kitson which was rejected by the Court in the Kitson judgment. She claims native title rights and interests in exactly the same area of land that Mr Kitson did, which comprises approximately 49% of the claim area.

    The matter has progressed further since Mr Kitson’s application was dismissed, such that an Indigenous Land Use Agreement has been filed, submissions made, a section 87A agreement executed and filed, and a consent determination listed.

    Ms Gilson, like Mr Kitson, seeks to represent the interests of the Wakka Wakka People as a group rather than in a personal capacity despite her disclaimer at the commencement of her affidavit.

    Similarly to Mr Kitson’s claim as considered in the Kitson judgment, Ms Gilson has failed to establish any factual foundation for her asserted interest. Detailed evidence would be expected, however the bases proffered by Ms Gilson for her claimed interest are even weaker than those of Mr Kitson, and her evidence of a personal association to the land is almost non-existent.

    There is no precedent for the Court permitting joinder at such a late stage in proceedings.

Submissions of the State

19    The State of Queensland joined with the Kabi Kabi People in respect of their submissions. There was considerable commonality between the submissions of the State and those of the Kabi Kabi People. In addition, the State submitted, in summary:

    For the Court to entertain an application for joinder filed so late in proceedings, one would expect a very compelling explanation for delay and a very strong case for joinder, neither of which is present in Ms Gilson’s application.

    Ms Gilson deposed that she has been agitating concerns regarding the inclusion of Kilkivan in the Wakka Wakka claim area since 2016.

    Ms Gilson’s claim that she does not act on behalf of the ‘Wakka Wakka community as a group’ appears to be an attempt to circumvent the Court’s reasons in the Kitson decision.

    Save for a short period explained by a death in her family, Ms Gilson offers no good explanation for her delay of two months after joinder was refused in the Kitson decision, particularly noting that her evidence largely mirrors that which she provided in support of the Kitson application.

20    The State concluded their submissions by contending that the Court should not be satisfied that Ms Gilson had personal interests in the area identified, could not be satisfied that the joinder application was brought for a legitimate purpose, and in any event was brought far too late such that the interests of justice require the joinder application be refused.

CONSIDERATION

21    Section 84(5) of the Native Title Act relevantly 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.

22    In summary, the power vested in the Court by s 84(5) of the Native Title Act is discretionary, and requires the Court to consider:

(1)    Whether the joinder applicant has a relevant interest;

(2)    Whether that interest may be affected by a determination in the proceedings; and

(3)    Whether it is in the interests of justice to allow joinder.

23    It is well-settled that a joinder applicant has the onus of satisfying the Court of each of the elements of s 84(5): Hippi on behalf of the Gamilaraay People v State of Queensland [2024] FCA 380 at [56]; Hoolihan on behalf of the Gugu Badhun People #3 and State Minister for the State of Queensland (No 2) [2023] FCA 1589 at [26]; Forrest on behalf of the Kakarra Part A Native Title Claim Group v State of Western Australia [2023] FCA 529 at [14]; Vea Vea on behalf of the Wadja People v State of Queensland [2020] FCA 405 at [16].

24    Turning to the first and second elements of s 84(5), namely whether the joinder applicant has a relevant interest which may be affected by a determination in the proceedings, the joinder applicant must demonstrate a prima facie case that he or she has interests that may be affected by a determination of native title: Wakka Wakka People # 2 v State of Queensland [2005] FCA 1578 at [6]; Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [8]; Pegler on behalf of the Widi People of the Nebo Estate #1 v State of Queensland [2019] FCA 711 at [11].

25    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 (No 2) at [5]; Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369 at [21]. However, whether a person does have such native title rights, and whether such rights could be affected, depends on the evidence before the Court: Isaacs (No 2) at [7]). As O’Bryan J explained in Wilson on behalf of the Wirangu People v South Australia [2022] FCA 829:

[17]    … the Court will consider whether and to what extent the applicant has adduced evidence of facts that are capable of supporting a finding that the applicant has an interest of the kind required by s 84(5), such that a prima facie case is shown: Wakka Wakka People #2 v Queensland [2005] FCA 1578 at [6] per Kiefel J (as her Honour then was). The evidence must rise beyond mere assertion, have some probative quality and be capable of establishing facts from which a finding of a requisite interest could be made: Sumner v South Australia [2014] FCA 534 (Sumner) at [25]-[26] per Mansfield J. In Gomeroi People v Attorney General of New South Wales [2013] FCA 81, Jagot J observed that a person must assert more than a remote or insubstantial interest to hold the status of a party to the proceeding (at [24]). In that case, her Honour observed in respect of an Aboriginal respondent who claimed, without further substantiation, that he held native title in relation to land or waters in the area covered by the application (at [24]):

... I am left in the position where I can do nothing more than speculate as to whether there is any interest and if there is any interest, whether it be characterised as a native title right or interest or otherwise, whether it would actually be affected by the determination in these proceedings. It seems to me, in these circumstances ... it is only those persons whose interests may be classified as genuinely, demonstrably and not indirectly affected by a determination of native title who ought to have the status of parties to the proceedings. The reason for this is obvious, given that as a party to proceedings there are vested therein, by the provisions of the Native Title Act, various rights and indeed obligations which could have the effect of substantially interfering with the timely and efficient resolution of such matters.

26    The “relevant interest” a joinder applicant must demonstrate for the purposes of s 84(5) of the Native Title Act must be a personal interest, not for the purpose of acting as a representative to assert native title rights on behalf of a group. As Rangiah J explained in Blucher at [21], this 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 Part 3 of the Native Title Act.

27    In the present case, not only is Ms Gilson’s evidence undeveloped, but much of her evidence demonstrates that she is pursuing representative interests for the Wakka Wakka People rather than for herself personally.

28    In relation to Ms Gilson’s evidence, I note for example that:

    Ms Gilson asserts an interest in 49% of the Kabi Kabi claim area. I agree with the Kabi Kabi People that claiming such a large area would require a high degree of detailed evidence of connection.

    The Kabi Kabi People contend that some sites referred to by Ms Gilson, such as “Old Stone Man”, appear to be outside the bounds of the Kabi Kabi Claim area. This contention is unchallenged.

    There is no clear description by Ms Gilson of “the Kilkivan Area”.

    The proposed joinder area extends well beyond that which could be considered the area around Kilkivan.

    “Grandmother’s Dreaming” is the only important site for which a location is provided by Ms Gilson with any detail.

    Ms Gilson’s evidence that she is unprepared to provide details of the location of important sites, for fear of misuse for financial reasons by third parties, does not assist her case concerning her alleged interest in the land for which she claims joinder.

    Ms Gilson’s evidence about her travels as a child are in general terms.

29    Further, much of Ms Gilson’s evidence is framed in representative terms. I note for example:

    At [16] of her affidavit where Ms Gilson described in detail traditional laws and customs of Wakka Wakka people and the nature of the Wakka Wakka claim group.

    At [17] of her affidavit, the fact that Ms Gilson plainly identifies herself with the Wakka Wakka People.

    At [18] of her affidavit, where Ms Gilson describes the hunting and gathering she did with her family and the roles of women of the Wakka Wakka tribe.

    At [21] of her affidavit, where Ms Gilson expresses concern about losing “her traditional rights as a Wakka Wakka person to those areas”, and the losses which would be experienced should native title be granted to Kabi Kabi by men and women, not only of her family but of other Wakka Wakka people.

    At [26] et seq where she described discussions and mediations between Wakka Wakka and Kabi Kabi.

    At [35] of her affidavit where she deposes that her daughter, Lauren Gilson, asked Mr Preston and Mr Eales “why the Kilkivan area was not included in the Wakka Wakka claim.”

30    I am not satisfied that, on the evidence before the Court, Ms Gilson has demonstrated that she has an personal interest which may be affected by a determination of Native Title in the proceedings.

31    Finally, I am satisfied that it is not in the interests of justice to allow Ms Gilson to join the proceedings. As Mortimer J (as her Honour then was) said in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 1) [2021] FCA 1463:

23.    … in a native title case, there are times to speak up and there are times where it may be too late to speak up. There are times to object and there are times where it may be too late to object… But as I have said in other cases in Western Australia (see Lawson on behalf of Badimaya Barna Guda People v Western Australia [2020] FCA 104 at [99], Sturt on Behalf of the Jaru Native Title Claim v Western Australia [2018] FCA 1923 at [57]), people cannot delay; they cannot wait until just before a big and expensive event like a consent determination and put forward a complaint that they could have made a lot earlier and could have made at a more appropriate stage in the proceeding. There is just too much disadvantage to other parties, and to the way the Court must conduct its judicial business, to allow that to occur.

(emphasis added)

32    On her own evidence, Ms Gilson has known of the Kabi Kabi claim since at least 2019. She has also known that Kilkivan was not included in the Wakka Wakka claim since 2016.

33    More concerningly, for some time she clearly had considered making a joinder application in her own right, but did not. This was clear from her affidavit dated 7 October 2023, annexed to Mr Kitson’s affidavit of 11 October 2023 filed in this proceeding in support of his joinder application, in which she deposed as follows:

Why I am seeking to join the Kabi Kabi Claim

3.    I want to be a respondent party to the Kabi Kabi Claim because I have Native Title Rights and interests in and around Kilkivan,

4.    I have been taught by my Wakka Wakka elders since I was young that the Kilkivan Area belongs to the Wakka Wakka People, and that I have rights and obligations to all of that area under our traditional laws and customs.

…

6.    If there is a determination of Native Title in favour of the Kabi Kabi People over those parts of the Kilkivan Area that fall within the Kabi Kabi People, then I believe that my ability to exercise my Native Title rights and interests as a Wakka Wakka person in and around these areas will not be possible.

…

27.     From around September 2023, I prepared material which could be used to support an Interlocutory Application which could form the basis for a Wakka Wakka Native Title claimant application over Our Country.

28.     My hope is for an outcome that will secure the Wakka Wakka People’s rights and interests in all of the Kilkivan Area.

34    I understand that Ms Gilson believed – wrongly – that she should rely on Mr Kitson’s joinder application to represent her interests. However as has plainly transpired, Mr Kitson’s joinder application was unsuccessful, several months ago, for reasons including that even at that time a joinder application was too late.

35    Ms Gilson complained extensively that she had raised the Wakka Wakka interest in the Kilkivan area many times with QSNTS, but that QSNTS had not responded to those concerns. A remedy for such inattention to her interests plainly would have been what she ended up doing, namely filing an application for joinder. An inference can reasonably be drawn that Ms Gilson has, until very recently, had only a superficial interest in the proceedings.

36    The Kabi Kabi People have executed a s 87A agreement with the respondents, which has been filed with the Court. An ILUA has been filed. Orders have been made to list the consent determination for hearing on Monday, and submissions in support have also been filed. The effect of allowing the joinder of Ms Gilson at this extremely late stage would inevitably have the effect of derailing the consent determination, notwithstanding the comments of Ms Gilson that she did not wish that this should happen. The prejudice to, in particular, the Kabi Kabi People, would be extreme. I also accept that significant prejudice would be occasioned to the State, which would almost certainly have devoted considerable resources to achieving its state of satisfaction that connection for the purposes of the Native Title Act had been established. To a lesser extent, but nonetheless real, would be the prejudice experienced by other respondents, all of whom have participated in the process resulting in the listing of a consent determination.

37    The application for joinder by Ms Gilson three business days prior to a consent determination hearing is, in my view, far too late. It is contrary to the interests of justice that such joinder be permitted.

38    The appropriate order is that the joinder application be dismissed.

Associate:

Dated:    14 June 2024

SCHEDULE OF PARTIES