Federal Court of Australia

Briggs on behalf of the Wulli Wulli People #3 v State of Queensland (No 2) [2024] FCA 1530

ORDERS

THE COURT ORDERS THAT:

1.    The Further Amended Interlocutory Application filed by the applicant on 22 February 2024 be dismissed.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The principal proceeding is an application brought by the applicant on behalf of the Wulli Wulli people for a determination of native title over an area of Central Queensland.

2    On 6 February 2018, the Court made orders partitioning the claim area into three parts, described as Part A, Part B and Part C. In respect of Part A, a further order was made that the following questions be heard and determined separately:

(a)    But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, land and waters of the claim area?

(b)    In relation to that part of the claim area where the answer to (a) above is in the affirmative:

(i)    Who are the persons, or each group of persons, holding the common or group rights comprising the native title?

(ii)    What is the nature and extent of the native title rights and interests?

3    There are four respondents actively participating in the determination of the separate questions. They are the State of Queensland and three Indigenous persons, namely Steven Collins, Lyall Appo and Una Appo.

4    Mr and Ms Appo are brother and sister and identify themselves as Wakka Wakka people. They each assert that the Wakka Wakka people hold, and Wulli Wulli people do not hold, native title rights and interests in at least part of the Part A claim area.

5    The applicant filed an interlocutory application seeking the removal of Ms Appo (but not Mr Appo) as a party under s 84(8) of the Native Title Act 1993 (Cth) (the NTA). On 5 July 2024, I dismissed the interlocutory application and indicated that I would provide my reasons in due course. These are my reasons.

6    The application to remove Ms Appo as a respondent has a lengthy history. Ms Appo was self-represented in the proceeding, leading to difficulties for her in complying with orders of the Court and delays. Initially, the applicant conceded that Ms Appo had, through her claim that her ancestor Maggie Hart had rights and interests in the claim area as a Wakka Wakka person, an adequate interest to allow her to remain a party, but argued that she should be removed on discretionary grounds, including her failure to comply with orders. However, by the time the interlocutory application came on for hearing on 22 April 2024, the position had changed in two ways: first, Ms Appo had gained legal representation; and, second, the applicant withdrew the concession that the respondent had a sufficient interest through Maggie Hart.

7    After hearing initial arguments, I considered that the preferable course was to adjourn the hearing to allow Ms Appo to file a Further Amended Defence. After Ms Appo filed that document, the grounds for removal relied on by the applicant narrowed, as reflected in the applicant’s written submissions filed on 4 June 2024 and oral submissions made at the resumed hearing on 5 July 2024.

8    The applicant’s Further Amended Originating Application and Statement of Claim allege that the Wulli Wulli #3 claim group (the Wulli Wulli) hold native title rights and interests in the Part A area. The Wulli Wulli people are defined, relevantly for present purposes, as the biological descendants of 17 named apical ancestors.

9    One of the persons named as a Wulli Wulli ancestor in the Statement of Claim is “Ginalene (mother of Ernest Pope)”. It is not in dispute that Ms Appo is a biological descendant of Ginalene (who might be a person also known as Jenny Lind) and Ernest Pope. Accordingly, the effect of the applicant’s pleading is to assert that Ms Appo is a Wulli Wulli person.

10    Ms Appo’s Further Amended Defence asserts that:

     A large tract of the claim area, described as the “Three Moon Creek research area”, is in fact within the “traditional lands” of the Wakka Wakka. I take this allegation to mean that the Wakka Wakka have held rights and interests in that area in accordance with their traditional laws and customs since before sovereignty.

    The Wulli Wulli people only “came across” to that area after 1857.

    Ms Appo’s contentions are based upon “traditional knowledge” passed on to her by her ancestors, as well as certain anthropological records.

    Ms Appo’s biological ancestors Ginalene and Ernest Pope were Wakka Wakka people, not Wulli Wulli, and Ms Appo is consequently Wakka Wakka, not Wulli Wulli.

    Ginalene and Ernest Pope held rights and interests in the Three Moon Creek research area under the traditional laws and customs of the Wakka Wakka.

    Another of Ms Appo’s ancestors, Maggie Hart, also held rights and interests in the Three Moon Creek research area under the traditional laws and customs of the Wakka Wakka.

    As a result of her biological descent from those ancestors, Ms Appo holds rights and interests in the Three Moon Creek research area under the traditional laws and customs of the Wakka Wakka.

    Three other persons asserted in the Statement of Claim to be apical ancestors of the Wulli Wulli (Tommy father of Wonga Pope, Bessie Rawbelle and Mergwin Blay) were in fact Wakka Wakka; and two others (Billy and Selina) “do not exist”, but if they existed, were Wakka Wakka.

    The remainder of the persons named in the Statement of Claim as Wulli Wulli ancestors did not hold rights and interests in the Three Moon Creek research area according to any traditional laws and customs and, consequently, their descendants do not hold rights and interests in that area.

    The first separate question should be answered such that the Wulli Wulli claim group does not hold native title in relation to the land and waters of the Three Moon Creek research area, or, alternatively, any part of the claim area.

11    Section 84 of the NTA provides, relevantly:

84    Parties

…

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.

…

Dismissing parties

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

Court to consider dismissing parties

(9)    The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:

…

(b)    the person never had, or no longer has, interests that may be affected by a determination in the proceedings.

12    The applicant relied on the following grounds for removal of Ms Appo as a respondent:

(a)    Ms Appo is not merely seeking to protect her own interests from dilution or discount, but is running her case on a representative basis and seeking to protect the interests of the descendants of all the persons she asserts are Wakka Wakka apical ancestors.

(b)    As Ms Appo is a biological descendant of Ginalene and Ernest Pope, she is a member of the Wulli Wulli claim group, and is impermissibly seeking to raise an intra-mural dispute by remaining a respondent.

(c)    Ms Appo has not established any tenable case that Maggie Hart had rights and interests in the claim area.

(d)    Ms Appo impermissibly seeks to impugn two previous consent determinations obtained by the Wulli Wulli people, by asserting that persons recognised as Wulli Wulli ancestors in those determinations were not in fact Wulli Wulli people.

(e)    Ms Appo’s interests are adequately represented by her brother, Mr Appo, who remains a respondent to the proceeding.

13    In Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599, White J identified a number of principles relevant to the application of s 84(5) and (8) of the NTA, which Reeves J summarised in Alvoen on behalf of the Wakaman People #3 v State of Queensland [2019] FCA 1469 at [28] as follows:

(a)    the discretion vested under s 84(8) is mirrored in that vested under s 84(5);

(b)    the “‘interests’ to which s 84(5) refers are not confined by the definition of the word ‘interest’ in s 253 of the [NTA]”;

(c)    the particular circumstances specified in s 84(9) are not exhaustive of the circumstances in which a person may be removed as a party under s 84(8);

(d)    a person joined as a respondent party under s 84(3), or s 84(5), cannot seek a determination of native title in favour of a group of persons without making an application under ss 13 and 61 of the NTA;

(e)    however, a person can be joined and remain a respondent party “for the quite separate and different purposes of seeking to protect the native title rights and interests they claim to hold from erosion, dilution or discount”;

(f)    a prospective or existing respondent who can point to a “clear and legitimate objective which he or she hopes to achieve” as a respondent party will usually be successful in a joinder application unless there are other factors weighing against the exercise of that discretion;

(g)    dissatisfaction of a claim group member with the institution of proceedings or the manner of their conduct does not, of itself, warrant that person being joined, or remaining, a respondent party;

(h)    however, if such a person contends that their native title rights and interests exist by reason of their membership of a different and competing claim group, they may be permitted to remain a respondent party;

(i)    further, such a person may also be permitted to remain as a respondent party where they are disputing the composition of the claim group, rather than pursing an intra-mural dispute; and

(j)    a person who is a member of a sub-group of the native title claim group will not usually be joined as a respondent party.

(Underlining added, paragraph references omitted.)

14    In respect of the applicant’s ground that Ms Appo is impermissibly seeking to run a case on a representative basis, the reasons of O’Bryan J in Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia [2023] FCA 930 are instructive. His Honour at [41] summarised the principles in respect of joinder under s 84(5), including the following:

A person who claims native title rights and interests in relation to the land or waters the subject of the proceeding may be joined as a respondent party to defensively assert their native title rights and interests in order to protect them from erosion, dilution or discount: Isaacs on behalf of the Turrbal People v Queensland (No 2) [2011] FCA 942 at [18] (Reeves J); Harkin on behalf of Nanatadjarra People v Western Australia [2020] FCA 1015 at [11] (Griffiths J); Blackburn v Wagonga Local Aboriginal Land Council (2021) 287 FCR 1 at [54]. Such a person may not act in a representative capacity: Blackburn at [54], and they may not secure a determination of native title in their capacity as a respondent party: Commonwealth v Clifton (2007) 164 FCR 355 at [57]-[58].

15    His Honour went on to hold at [44]-[45]:

…As stated above, a person who claims native title rights and interests in relation to the land or waters the subject of the proceeding may be joined, or remain, as a party to that proceeding in order to defensively assert, and thus protect, their native title rights and interests. That person may not, however, act in a representative capacity; nor may they secure a determination of native title in their capacity as a respondent party. It does not follow, however, that a respondent who asserts native title rights and interests on their own behalf cannot, in opposing the claimant application, assert and adduce evidence in support of their asserted rights and interests, including those which they may hold as a member of a community that holds the same rights and interests. In doing so, a respondent does not, without more, advance a positive claim for a determination of native title; nor do they purport to act in a representative capacity. Rather, the respondent seeks to provide a legal and factual basis for their opposition to the claim and thus to negative the applicant’s claim to hold native title rights and interests on behalf of the claim group. As observed by the Full Court in Clifton at [37], in determining an application for native title made under s 13(1), the Court may be required to resolve disputes as to: (a) the true membership of a native title claim group; (b) the boundaries of the area over which the claim group holds native title; or, (c) the nature and extent of the native title rights and interests held by the claim group.

In the context of the present applications, it is also relevant to observe that the Court has the power to make a determination of native title on terms that differ from the terms of the application made under s 61 of the Act. For example, the Court may make a determination that reduces the boundaries of the claim area or alters the composition of the claim group (including, relevantly, the identity of apical ancestors): Ross v Queensland [2021] FCA 1464 at [41]-[43] (Mortimer J, as her Honour then was); see also Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 1122 (Mortimer J, as her Honour then was); State of Western Australia v Graham on behalf of the Ngadju People [2013] FCAFC 143; 305 ALR 452. A respondent’s opposition to a native title determination application on the basis of competing native title rights and interests may, therefore, meaningfully affect the outcome of the application, even if no positive determination can be made in respect of the respondent’s asserted rights and interests.

(Underlining added.)

16    His Honour also held at [118]:

…I do not accept that Ms Sambo is seeking to act in a representative capacity or is seeking from the Court a determination of native title in her favour. Rather, she is asserting her personal native title rights and interest as a member of the Kapurn people, and is seeking to contest the Marlinyu Ghoorlie claim. She is entitled to do so. As noted earlier in these reasons, the Court has the power to make a determination of native title on terms that differ from the terms of the application made under s 61 of the Act. For example, the Court may make a determination that reduces the boundaries of the claim area or alters the composition of the claim group (including, relevantly, the identity of apical ancestors). It follows that a respondent’s opposition to a native title determination application on the basis of competing native title rights and interests may meaningfully affect the outcome of the application, even if no positive determination can be made in respect of the respondent’s asserted rights and interests.

17    In this case, the applicant contended that Ms Appo ought to be removed as a respondent because she is seeking to bring a representative claim for a determination of native title. It is apparent that Ms Appo asserts that she has a personal interest, namely native title rights and interests derived under the traditional laws of the Wakka Wakka in the Three Moon Creek research area, which would be affected by any determination that the applicant has native title rights and interests in that area. Ms Appo does not purport to seek any declaration that the Wakka Wakka hold native title in the claim area. Instead, Ms Appo seeks to defeat the Wulli Wulli claim in whole or part by demonstrating that the Wulli Wulli (properly described) do not hold native title in the Three Moon Creek research area, or alternatively, any part of the claim area. This does not involve making any claim for a determination of native title.

18    The applicant argues that Ms Appo’s claim, that the descendants of persons she asserts to be Wakka Wakka ancestors have rights and interests in the Three Moon Creek research area, means Ms Appo is running her case on a representative basis. It is the case that Ms Appo’s protection of her personal interest may involve demonstrating that the Wakka Wakka hold native title rights and interests communally (noting, however, that it may be enough to merely demonstrate that the Wakka Wakka held such rights and interests to the exclusion of the Wulli Wulli at sovereignty). The demonstration of that communal title would necessarily demonstrate the rights and interests of other Wakka Wakka people in the claim area. However, the purpose of Ms Appo in adducing evidence demonstrating that the Wakka Wakka people communally hold rights and interests would merely be to prevent the orders sought by the applicant in favour of the Wulli Wulli being made. As O’Bryan J observed in Dimer at [44], a respondent may assert and adduce evidence in support of their own asserted rights and interests, including rights and interests they may hold as a member of a community that holds the same rights and interests, without acting in a representative capacity.

19    If there were any doubt remaining about whether Ms Appo is seeking to act in a representative capacity, that doubt was removed by Ms Appo, through her counsel, making a clear statement in open Court that she is not seeking to bring any representative claim. The applicant has not sought any order requiring Ms Appo to amend her Further Amended Defence to specifically plead that she is not making a representative claim, presumably because that much is clear from her counsel’s concession.

20    The applicant relied on Hippi on behalf of the Gamilaraay People v State of Queensland [2024] FCA 380, where Collier J, by reference to the affidavits of the Indigenous applicants for joinder, concluded at [65] that they sought joinder in a representative capacity, to assert native title rights on behalf of members of a group. Similarly, in Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942, Reeves J concluded at [26], by reference to the Indigenous respondents’ affidavits, that they wished to pursue a representative claim. Further, in Lander v State of South Australia [2016] FCA 307, White J, by reference to the affidavits of an Indigenous respondent, determined at [74] that she should be removed because, “her purpose in seeking to remain a respondent may be not to preserve a personal interest, but instead to pursue [a] claim on behalf of [a] group”.

21    The applicant pointed to particular assertions made in Ms Appo’s affidavits which might suggest that she is seeking to bring a representative claim. However, there is no suggestion in the Further Amended Defence that Ms Appo is making the claim in a representative capacity. It is a fundamental characteristic of the adversarial system that trials are conducted on the basis of the issues the parties agitate in their pleadings: Stefanovski v Digital Central Australia (Assets) Pty Ltd (2018) 368 ALR 607 at [65]. The majority of the High Court in Water Board v Moustakas (1988) 180 CLR 491 at 496 observed that, “a trial is not at large but is of the issues joined by the parties”. Ms Appo’s affidavits (which were prepared while she was self-represented) have been overtaken by the Further Amended Defence, together with the statement made by Ms Appo’s counsel in open Court. The applicant could properly object to any attempt at trial by Ms Appo to use her affidavits to assert that the proceeding is brought in a representative capacity.

22    In the cases relied upon by the applicant, there were no relevant pleadings. Accordingly, in those cases, the issue of whether the relevant persons purported to act in a representative capacity had to be determined from their affidavits. As has been indicated, in this case, Ms Appo’s affidavits have been overtaken by her Further Amended Defence.

23    It must be concluded that Ms Appo is merely seeking to protect her asserted personal interests from erosion, dilution or discount and is not seeking to act in any representative capacity.

24    The applicant argued that since Ms Appo is a descendant of Ginalene and Ernest Pope, she is already a member of the Wulli Wulli claim group. They argue that she is impermissibly seeking to agitate an intra-mural dispute within the proceeding by remaining a respondent.

25    Ms Appo’s Further Amended Defence asserts that a determination of native title should not be made in the form proposed by the applicant. She asserts that the applicant wrongly claims as Wulli Wulli ancestors, persons who were in fact Wakka Wakka, and that she has been wrongly conscripted into the claim group through the inclusion of Ginalene and Ernest Pope, and wrongly given a Wulli Wulli identity. Further, Ms Appo asserts that the persons descended from ancestors other than the Wakka Wakka ancestors do not hold native title in at least the Three Moon Creek research area.

26    However, the effect of the applicant’s argument was that by framing the claim group by a description which encompasses Ms Appo, the applicant is entitled to characterise Ms Appo as a mere “dissentient member” of the claim group and the matters she disputes as merely “intra-mural”, thereby precluding her from disputing any of those matters. That argument involves an element of circularity in circumstances where Ms Appo claims that she is not in fact a member of the claim group. The argument cannot be accepted.

27    As was observed in Alvoen at [28], a person who comes within the claim group description and contends that their native title rights and interests exist by reason of a “different and competing claim group”, or who is disputing the composition of the claim group rather than pursuing an intra-mural dispute, may be permitted to remain as a respondent. The issues Ms Appo raises are within both categories. Those issues are fundamental to the Court’s determination of whether native title exist in relation to any and, if so what, part of the claim area and the identity of the persons holding the native title. They cannot be regarded as raising a dispute that is merely intra-mural, or internal, to the claim group. The applicant’s description of the Wulli Wulli claim group as including the descendants of Ginalene and Ernest Pope does not provide a basis to remove Ms Appo as a respondent, in circumstances where Ms Appo disputes that they were Wulli Wulli ancestors and consequently disputes that she is Wulli Wulli.

28    The applicant’s next argument was that a reason for removal of Ms Appo as a respondent is that she cannot demonstrate any arguable case that Maggie Hart had rights and interests in the claim area. The Further Amended Defence also asserts that Ms Appo holds rights and interests in the Three Moon Creek research area through her descent from Maggie Hart, who is said to have been Wakka Wakka. Maggie Hart is not named in the Statement of Claim as an ancestor of the Wulli Wulli.

29    The applicant initially conceded that Ms Appo has a sufficient interest to remain a respondent on the basis of her claim that Maggie Hart had rights and interests in the claim area but subsequently withdrew that concession. The applicant relied on a report of Dr Kevin Mayo, an expert anthropologist, in which he states, in respect of Maggie Hart, that the “records do not indicate an early association with the Three Moon Creek research area”, and that, “Granny Lizzie Hart is not remembered by contemporary claimants with whom I have spoken”.

30    In the course of submissions, the applicant’s counsel conceded that the applicant’s case was not that there is no relevant evidence of Maggie Hart’s rights and interests in the claim area, but that the evidence is weak. Ms Appo relies upon the oral history she asserts she was given about Maggie Hart’s connection with the Three Moon Creek research area. Dr Mayo’s report is not necessarily inconsistent with that history. In these circumstances, I do not accept that Ms Appo has failed to demonstrate an arguable case that she holds rights and interests in the Three Moon Creek research area by reason of her descent from Maggie Hart. In any event, Ms Appo’s case that she holds rights and interests in that area as a Wakka Wakka person, by reason of her descent from Ginalene and Ernest Pope, demonstrates a sufficient interest to allow her to remain as a respondent.

31    The applicant’s next argument was that Ms Appo should be removed as a respondent because she permissibly seeks to impugn two previous consent determinations obtained by the Wulli Wulli People, by asserting that persons recognised as Wulli Wulli ancestors in those determinations were not in fact Wulli Wulli People. The applicant argued that there would be inconsistency between fundamental findings made in two previous consent determinations and Ms Appo’s claim that some of the persons asserted to be Wulli Wulli ancestors were not Wulli Wulli.

32    The applicant pointed out that in Anderson on behalf of the Wulli Wulli People v State of Queensland (No 4) [2017] FCA 800 and Clancy on behalf of the Auburn Hawkwood People v State of Queensland [2019] FCA 1908, the descendants of Ginalene and Ernest Pope were recognised as native title holders in respect of areas adjacent to the present claim area. The applicant submits that Ms Appo is not entitled to dispute the fundamental matters determined in those cases, including that the descendants of Ginalene and Ernest Pope are members of the society of Wulli Wulli People who hold rights and interests in the determined areas. The argument was not fully developed.

33    In Stuart v State of South Australia (2023) 299 FCR 507, Rangiah and Charlesworth JJ observed at [69] that it is an abuse of process for a party to seek to re-litigate a fundamental matter expressly or necessarily encompassed within an earlier determination, and to do so may give rise to an issue estoppel. Their Honours went on to observe at [70] that, “the factual matters essential to a valid determination of native title are geographically specific”. Their Honours also observed at [73] that it is necessary to identify the facts that are essential to the validity of a previous consent determination and those that are not. Their Honours also noted at [76] that while determinations of native title made by consent are judgments in rem having the same force as those made after a contested trial, it does not follow that all factual matters referred to in the reasons accompanying a consent determination necessarily have the status of a finding that may give rise to an issue estoppel or abuse of process. Nor that they are “findings” essential to the validity of the judgment. The factual matters essential to the validity of the consent determination must be determined by reference to the NTA itself. It may be noted that the judgment in Stuart is the subject of an appeal to the High Court.

34    In the consent determinations, the Court accepted that Ginalene and Ernest Pope were appropriately described as Wulli Wulli and their descendants were amongst the people who held native title in the relevant claim areas. However, the area claimed in the present case is geographically distinct from the areas determined under the previous consent determinations. It is reasonably arguable that a finding that only the descendants of Ginalene and Ernest Pope, Tommy father of Wonga Pope, Bessie Rawbelle, Mergwin Blay and Billy and Selina hold rights and interests in at least part of the present claim area would not be inconsistent with fundamental matters encompassed within the previous consent determinations. In the absence of a fully developed argument by reference to the circumstances of the earlier determinations, the terms of the NTA and the relevant case law, I am not persuaded that an issue estoppel must arise in respect of the claims made by Ms Appo.

35    The applicant also argued that Ms Appo should be removed as a matter of discretion because her interests are adequately protected by her brother, Mr Appo, who will remain a respondent to the proceeding. The applicant did not explain why she only applied to remove Ms Appo, and not Mr Appo, as a respondent. The applicant’s approach would mean that the applicant effectively chooses which of the siblings is to run their defence.

36    Ms Appo has provided evidence of a personal interest, namely a claim that she has rights and interest in the claim area as a Wakka Wakka person, which may be affected by the proposed determination. Her position may be contrasted with that under s 84(9)(a) of the NTA, which requires the Court to consider making an order for the removal of a respondent whose interest is merely a public right of access over, or use of, any of the claim area if, relevantly, the person’s interests are properly represented in the proceedings by another party. The applicant has not pointed to any authority supporting the proposition that it is an appropriate use of the discretion under s 84(8) of the NTA to remove a respondent who has demonstrated a personal interest on the basis that another respondent can be expected to adequately protect their interests.

37    In any event, Ms Appo’s Further Amended Defence raises an issue which is not raised by Mr Appo’s Amended Defence. That issue is Ms Appo’s allegation that Ginalene and Ernest Pope were not Wulli Wulli but were instead Wakka Wakka. Mr Appo’s focus is on his claim to hold rights and interests in the claim area in accordance with the traditional laws and customs of the Wakka Wakka by reason of his descent from Maggie Hart. It cannot be concluded that the case proposed to be run by Mr Appo provides adequate protection of Ms Appo’s interests.

38    For these reasons, I considered that the applicant’s interlocutory application seeking the removal of Ms Appo as a party should be dismissed.

Associate:    

Dated:    12 March 2025

SCHEDULE OF PARTIES