Rangiah J
The Court dismissed the interlocutory application of Ms Vassa Iris Hunter seeking to be joined as a party to the Widi claim proceeding under the Native Title Act 1993 (Cth) (NTA).
Background
The principal claim was commenced in 2006. On 16 July 2013, a meeting was held where the claim group resolved to amend its description by removing the names of several apical ancestors. On 5 June 2013, Collier J granted leave to the applicant to make the amendments authorised by the claim group (Butterworth on behalf of the Wiri Core Country Claim v State of Queensland (No 2) [2014] FCA 590). As a result of this application, Ms Hunter ceased to be a member of the claim group.
Ms Hunter made an application for joinder which was refused on 28 August 2014 by Collier J (Pegler on behalf of the Widi People of the Nebo Estate #1 v State of Queensland [2014] FCA 932). Ms Hunter asserted that she was a member of the claim group through her great-grandmother, Mary of the Widi Tribe. Collier J concluded that Ms Hunter’s evidence illustrated her membership of a broader Wierdi/Widi cultural and/or language group over a large area of central Queensland, however, it did not give her a sufficient interest in the claim area. Her Honour also relied upon the evidence of anthropologists who noted Mary was traditionally affiliated with the Clermont district and not the Nebo district. Furthermore, Collier J was not satisfied that Ms Hunter demonstrated a prima facie case that she had an interest warranting her joinder to the proceeding, nor was it in the interests of justice to allow the joinder.
Current application
Ms Hunter’s Claim
Ms Hunter brought an application for joinder under s 84(5) NTA. Ms Hunter’s present application relied substantially upon the same evidence as placed before Collier J in 2014, with additional new material.
Opposition to joinder
This application was opposed by the Widi applicant and the State of Queensland. The parties submitted that the evidence was inconsistent with Mary having held native title interests in the claim area and that it would not be in the interests of justice to allow the joinder.
Court’s decision
Under s 84(5) NTA it is necessary to consider: whether the applicant for joinder has an interest; whether that interest may be affected by a determination in the proceedings; and whether it is in the interests of justice for the applicant to be joined as a party. Additionally, an applicant for joinder must demonstrate a prima facie case that they have interests which may be affected by a determination.
Rangiah J held that Ms Hunter was not able to demonstrate a prima facie case that she was a member of the claim group. His Honour stated that Ms Hunter relied upon evidence that demonstrated her ancestors had an association with the Clermont District not the claim area group. For example, Ms Hunter relied upon Tindale’s Cherbourg Sheet #9, but his Honour noted that this identified Mary as being of 'Clermont' (at para [13]). Additionally, Ms Hunter used as evidence the field notes of Caroline Tennant-Kelly which showed Ms Hunter’s ancestor Abraham Johnson was also associated with the Clermont district.
His Honour also concluded that it would not be in the interests of justice to allow Ms Hunter to be joined (at para [16]). Ms Hunter did not provide any satisfactory explanation for her delay in making a further application after her previous application for joinder was rejected in 2014. The claim had proceeded substantially during this time and a consent determination was listed for July 2019. Rangiah J held that it would derail the consent determination and cause substantial prejudice to the existing parties if Ms Hunter were to be joined now.
It was for these reasons that his Honour dismissed the application for joinder.