Background
This judgment concerned two interlocutory applications. The substantive proceeding regarded a native title determination filed on behalf of the Warrabinga-Wiradjuri People. The first interlocutory application was to remove the tenth respondent to the case, Mr Bliss. Mr Bliss was the director and authorised representative of the Wellington Valley Wiradjuri Aboriginal Corporation (WVWAC). WVWAC was the fifty-first respondent and no application was made to remove it as a respondent. This first application was filed by Mr Carr and supported by Mr Riley, both of whom were respondents in the proceedings and represented the Ibbai Waggan Wiradjuri People. The second interlocutory application sought to have Mr Carr and Mr Riley to be included in ongoing mediation proceedings as representatives of the Ibbai Waggan Wiradjuri People and was filed by Mr Riley. Mr Riley and Mr Carr had previously been active participants in the mediations.
First Interlocutory Application
Griffiths J began by discussing sections 84(8) and (9) of the Native Title Act 1993 (Cth), which allows for the removal of parties. After referring to the relevant case law, his Honour stated that whether the Court would use its power to remove a respondent turned on an assessment of the interests of justice. His Honour also highlighted that the nature of the interest that a respondent needs a to be clearly defined and cannot be indirect or lacking substance. Such interest does not have to be proprietary or legal.
After detailing the law, his Honour considered the submissions made regarding the first interlocutory application. Four affidavits were presented by Mr Carr and Mr Riley which questioned Mr Bliss’s connection to the Wiradjuri People. Mr Bliss claimed that he had been approached by Mr Riley and Mr Carr and another individual to join the Gallanggabang Aboriginal Corporation and to join the WVWAC to strengthen a native title claim they were joined in. Mr Bliss’s subsequently withdrew support for the claim. He stated that the presented affidavits were part of a broader effort ‘to have him removed from positions he held within the Aboriginal and wider non-Aboriginal community.’
His Honour found that Mr Bliss had a prima facie relevant interest in the Warrabinga-Wiradjuri proceeding. The claims on both sides were at least arguable and it was not necessary at that stage in the proceeding to make a final determination on whether Mr Bliss was a Wiradjuri man. His Honour emphasised that ‘where there are real questions of law and/or fact, it is preferable that they be resolved at trial and not at interlocutory stage.’ His Honour placed significance on there being no application to remove WVWAC as a respondent and that Mr Bliss would presumably still play an active role due to his position as director. Based on these reasons, Griffiths J dismissed this application.
Second Interlocutory Application
Griffiths J upheld the application. His Honour noted Mr Riley and Mr Carr’s past withdrawal from mediation but accepted the concerns they had to protect Ibbai Waggan Wiradjuri cultural knowledge and obligations. His Honour said that it would allow them to review and provide comment on an anthropological report.