In this matter, Collier J heard an interlocutory application filed by Queensland South Native Title Services (QSNTS) seeking to be joined as a party to the native title proceedings brought on behalf of the Wulli Wulli #2 claim group. The Wuilli Wulli #2 applicant opposed the application.
The Wulli Wulli #2 native title proceedings commenced in September 2011 by the claim group’s legal representatives, Just Us Lawyers. In December 2011, an application was filed in Wakka Wakka #3. QSNTS provided the Wakka Wakka #3 claim group with assistance in relation to the filing of that claim. The two claims wholly overlap geographically and share common apical ancestors. In July 2012, Collier J ordered that the proceedings in Wulli Wulli #2 and Wakka Wakka #3 be heard together.
The applicants in both Wulli Wulli #2 and Wakka Wakka #3 attended mediation in June 2014. Following the mediation, the Form 1 applications in both claims were amended in accordance with an agreement of 17 June 2014 signed on behalf of both claim groups. The Form 1 was amended to include descendants of Maggie Hart and Mi Mi as members of the Wulli Wulli #2 claim group. The name of the applicant changed to Robert Clancy & Ors on behalf of the Wulli Wulli and Wakka Wakka Peoples.
In April 2017, Just Us Lawyers sent a letter to QSNTS advising that the applicant had received the State’s response in relation to connection in the Wulli Wulli #2 and Wakka Wakka #3 matters, and proposed a number of meetings in the context of urgent case management. On or about 13 April 2017, a notice was published in the South Burnett Times newspaper inviting Wulli Wulli and Wakka Wakka People to attend an information meeting on 5 May 2017 and an authorisation meeting on 7 May 2017. After QSNTS became aware of the notice, the application for joinder was prepared and filed.
Following the authorisation meeting of the Wulli Wulli #2 claim group, the applicant filed an interlocutory application for leave to amend the Form 1 native title determination. In June 2017, Collier J made orders granting leave and the application amended to:
Remove Maggie Hart and Mi Mi from the list of apical ancestors;
Add Bessie Rawbelle to the current list of apical ancestors;
Amend the description of existing ancestors consistent with the Wulli Wulli determination; and
Revert to the former name of the proceeding, that being Wulli Wulli People #2.
In order to warrant joinder as a party to proceedings, the applicant for joinder must demonstrate the follow elements:
The person has an interest in the proceedings;
The interest may be affected by a determination in the proceedings; and
In the interests of justice, the Court should exercise of its discretion to join the person as a party.
QSNTS submitted that it has an interest in the proceedings which could be affected because of its status as a recognised native title representative body under s 203AD of the Native Title Act 1993 (Cth) (NTA), with a statutory responsibility for representing the interests of native title holders in the southern region of Queensland. QSNTS further submitted that it was in the interests of justice that it be joined to the current proceedings because, in summary:
The interests held by QSNTS in this case are materially indistinguishable from those held by QSNTS in Edwards on behalf of the Wongkumara People v State of Queensland [2014] FCA 282, in which the Court found QSNTS specifically to have an interest supporting joinder to native title proceedings;
QSNTS promptly sought to be joined once it became aware of the notice of the planned authorisation meeting seeking to remove the descendants of Maggie Hart and Mi Mi from the Wulli Wulli #2 claim group description, in breach of the processes set out in the mediation agreement;
There is a public interest in QSNTS properly performing its statutory functions, particularly in light of the fact that it has already committed substantial financial resources to ascertaining the person who holds or may hold native title in relation to the claim area; and
Joining QSNTS to the proceeding may obviate the need for the Court to entertain at this stage a multitude of joinder applications from the descendants of Maggie Hart and Mi Mi.
The Wulli Wulli #2 applicant submitted that it opposed joinder by QSNTS because, in summary:
QSNTS had demonstrated no interest of any kind necessary to support joinder. The status of QSNTS as a recipient of funding under s 203FE and such obligations as it may hold as a consequence of receipt of that funding do not constitute interest of a kind sufficient to permit joinder;
At best, the interests of QSNTS are indirect, undefined and lacking in substance;
QSNTS had not shown that it was in the interests of justice that the Court exercise its discretion to allow joinder. In particular:
The delay of QSNTS in seeking joinder was substantial;
Joinder of QSNTS could result in delay in the resolution of the substantive proceedings. QSNTS had not defined or disclosed the role it proposed to take in the proceedings if joined;
No benefit had been demonstrated by the joinder of QSNTS; and
The applicant held concerns that, if QSNTS were permitted to join the proceedings, it would seek to re-agitate, review and re-open issues which had been the subject of prolonged and costly management, negotiation, mediation, investigation and consideration. This would result in delays and possible frustration of the prompt and efficient resolution of the proceedings.
Collier J rejected the applicant’s arguments as being of little substance. To the contrary, her Honour held at [27] that there is extensive authority that representative bodies have both an interest in native title proceedings in respect of claims in their statutorily mandated regions of Australia, and that that interest could be affected by a determination of native title in the proceedings. In particular, her Honour considered the issues arising in Edwards [2014] FCA 282 to be almost identical to those arising in this case.
At [36], her Honour stated: ‘I am not satisfied that QSNTS was or is required to articulate a detailed plan explaining its likely participation in the proceedings. Section 84(5) of the Native Title Act certainly does not include any such requirement, over or above the existence of an interest in the proceedings. In his affidavit sworn 4 May 2017, Mr Kevin Smith of QSNTS deposed that it was not possible at this stage of the proceedings for QSNTS to identify each respect in which the performance of its statutory functions could be enhanced or adversely affected if QSNTS were joined as a party to the proceedings. However, he claimed that if joined, QSNTS would be better equipped to determine, if requested, how to allocate resources to provide assistance. In my view this is a practical and sensible approach to the likely involvement of QSNTS in the proceedings.’
Her Honour considered that while the native title application was filed in 2011, the application for joinder cannot be considered late in the context of the proceedings, given that no agreement had been reached on the terms of the determination and that the claim group composition remained a live issue. That issue also counted against the applicant’s delay of resolution argument.
In relation to QSNTS’ interest in the proceedings, Collier J stated at [39] that ‘QSNTS, as the relevant statutory representative body, has a role in facilitating and assisting participants in the native title process, to ensure proper composition of the claim group seeking native title. This role is perfectly compatible with QSNTS taking a neutral stance so far as concerns the outcome of these proceedings. The fact that QSNTS seeks joinder to the proceedings is not indicative of partisanship. Rather, the material before the Court points to QSNTS fulfilling its statutory role.’
Collier J held that the inclusion or not of the descendants of Maggie Hart and Mi Mi in the claim group description is ‘clearly contentious’. Her Honour ordered that the parties engage in further confidential case management to seek to resolve the issue.