Rangiah J.
The matter involved an application for a determination of native title made by the Wakka Wakka People over land and waters to the west of Maryborough in south-east Queensland (the Wakka Wakka #4 claim). The issue before the court was whether the applicants to the Wulli Wulli #3 proceedings and another person, Mr Leslie Stewart, could be joined as respondents to the Wakka Wakka #4 claim under s 84(5) of the Native Title Act 1993 (Cth) (‘NTA’). Under this section, the Federal Court may 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.
Background
The Wakka Wakka #4 claim comprised two parts, Part A and Part B. Part B was contested by other Indigenous parties, including the Wulli Wulli #3 applicants and Mr Stewart, who claimed an interest as a descendent of Nellie. On 6 February 2018, the Part B overlap dispute was ordered to be resolved by way of an Alternative Dispute Resolution Agreement (ADR Agreement). A report written as a part of the ADR Agreement found that only the Wakka Wakka #4 claim group held traditional rights and interests in Part B. Nellie, who had not been named as an ancestor in either the Wakka Wakka #4 claim or the Wulli Wulli #3 claim, held traditional rights and interests in the northern parts of Part B. Therefore the descendants of Nellie were entitled to be included in any determination over Part B.
Consideration
Before the court could grant joinder for either applicant under s 84(5), it had to establish the following:
whether the applicant for joinder has an interest;
whether that interest may be affected by a determination in the proceedings;
whether it is in the interests of justice for the applicant for joinder to be joined as a party.
Interest
The Wakka Wakka #4 claimants later included Nellie as an apical ancestor, and removed the requirement in the claim group description that descendants identify as Wakka Wakka (Mr Stewart identified as Wulli Wulli). However, Rangiah J, accepted that the removal of the requirement to identify as Wakka Wakka did not ‘unquestionably’ result in Mr Stewart being included in the claim group. Therefore, Mr Stewart had a relevant interest.
The Wulli Wulli #3 claimants submitted an interest on the basis of being party to the ADR agreement. His Honour ultimately did not determine this issue, as he found that even if the applicants had a sufficient interest, it was not in the interests of justice to allow the joinder.
Whether interest may be affected by a determination in the proceedings
Mr Stewart’s interest was capable of being affected by a determination in the proceedings because the determination concerned the area of land over which Mr Stewart had an interest by way of descent from Nellie.
Whether in the interests of justice
His Honour acknowledged that the Wakka Wakka #4 applicants might be prejudiced by the joinder of Mr Stewart at such a late stage. However, the joinder was warranted in the interests of justice as the inclusion of Nellie as an apical ancestor and the release of the ADR Report had only occurred recently.
The joinder of the Wulli Wulli #3 claimants was held not to be in the interests of justice as their involvement would be limited to issues that would be agitated by Mr Stewart (claim group composition).
Orders
His Honour held that Mr Stewart be joined to the Wakka Wakka claim under under s 84(5) of the NTA. However, the joinder was limited to contesting issues relating to the composition of the claim group. Whether Mr Stewart’s interests would be properly represented by the Wakka Wakka claimants was an intra-mural dispute for which joinder was an inappropriate solution. The joinder of the Wulli Wulli #3 applicants was dismissed as it would be inconsistent with the ADR Agreement (which found they had no rights or interests to Part B of the Wakka Wakka claim) and in any case contrary to the interests of justice.