Alvoen on behalf of the Wakaman People #5 v State of Queensland

Background 4 The substantive proceedings have been on foot for several years. Multiple non-claimant applications have been filed. Present substantive proceedings are QUD746/2015 (Wakaman People #3) which was commenced in 2015; QUD728/2017 (Wakaman People #4) which was commenced in 2017; and QUD178/2018 (Wakaman People #5) which was commenced in 2018. 5 Mr Rodney Chong and Ms Carol Chong, either individually or through corporations in which they have an interest - initially Uwoykand Tribal Aboriginal Corporation (UTAC), subsequently Uwoykand - have at various points sought joinder as Indigenous Respondents. I understand that Ms Chong is the managing director of Uwoykand. In particular: By a respondent party notice signed by Mr Chong and Ms Chong dated 12 February 2016, they gave notice of their intention to become respondents to the Wakaman People #3 claim; and By a respondent party notice signed by Mr Chong and Ms Chong dated 15 August 2018, they gave notice of their intention to become respondents to the Wakaman People #4 claim. 6 On 14 March 2019 Mr Rodney Chong filed an interlocutory application in which he sought an order that he be joined as a respondent party to QUD178/2018 pursuant to s 84(5) of the Native Title Act. 7 On 14 March 2019 in QUD178/2018 Reeves J relevantly ordered as follows: 4. Pursuant to r30.01 of the Federal Court Rules 2011 (Cth), the following questions be decided separately from and before any other questions in the Wakaman proceedings (including questions arising under s 225(c), (d) and (e) of the Native Title Act 1993 (Cth)): (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 areas for the Wakaman proceedings? (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 native title? ii. what is the nature and extent of the native title rights and interests? (the separate questions) … 37. By close of business on 29 March 2019, Ms Chong is to file her application seeking to be joined as a respondent party in QUD 178/2018, together with any supporting materials. 38. By close of business on 5 April 2019, the applicant in QUD178/2018 is to file any materials it wishes to rely upon in opposition to the applications of Ms Chong and Mr Chong filed 14 March 2019. 39. By close of business on 12 April 2019, Mr Chong and Ms Chong are to file any materials in reply upon which they wish to rely. 40. By close of business on 26 April 2019, Mr Chong and Ms Chong are to file an outline of submissions on their applications, limited to 5 pages. 41. By close of business on 3 May 2019, the applicant in QUDI 78/2018 is to file an outline of submissions in opposition, limited to 5 pages. 8 On 6 September 2019 Reeves J dismissed an application by the Wakaman People #3 and #4 Applicants that Mr Chong and Ms Chong be removed as respondent parties from the Wakaman People #3 and #4 claims (Alvoen v State of Queensland [2019] FCA 1469). 9 On 2 October 2019, Reeves J gave leave to Mr Chong to be joined as a respondent to the Wakaman People #5 claim. 10 The hearing of lay evidence for the separate questions ordered by Reeves J took place during a preservation of evidence hearing via Microsoft Teams on 26 August 2020 and 30 September 2020, and then in and around Chillagoe, and in Mareeba and Cairns, from 2 November 2020 until 27 November 2020. 11 On 26 November 2020 I ordered as follows: 5. Leave be granted for Mr Rodney Chong, Ms Carol Chong and Uwoykand Tribal Aboriginal Corporation (UTAC) to cease being parties to the proceedings QUD143/2015, QUD746/2015, QUD728/2017 and QUD178/2018. 6. Costs of the involvement of the [sic] Mr Rodney Chong, Ms Carol Chong and UTAC be reserved. 12 On 15 February 2022 in QUD178/2018 I ordered as follows: 1. Uwoykand Corporation Pty Ltd be joined as a respondent to Wakaman People #5 (QUD178/2018) proceeding upon the condition that Uwoykand may not take any role (including pleading, leading evidence, seeking to cross-examine witnesses or making submissions) with respect to the following: (a) the issue of connection, including the separate questions ordered on 14 March 2019; and (b) the issue of tenure, other than with respect to its leasehold interest over Lot 2 on SP29996 on Crown Plan, known as 'Bulimba Pastoral Estate'; and (c) the issue of occupation under ss 47, 47 A, 47B or 47C of the Native Title Act 1993 (Cth). 2. Costs reserved. 13 These Orders were made with the consent of Uwoykand given at the hearing on 15 February 2022. 14 Subsequent to the making of these Orders there was considerable dialogue between the lawyers for the State (in particular Ms Marita Stinton), the Wakaman Applicant (in particular Ms Susan Walsh) and the respondent (who at that stage was represented by its lawyer Mr Thomas Cameron). 15 In particular, the following does not appear to be in dispute: A timetable to progress the three substantive Wakaman native title determination applications towards consent determination was initially circulated by the Wakaman Applicant on 2 June 2022 and copied to a Judicial Registrar Native title on 13 June 2023. Updated versions were subsequently circulated by the State to all parties (including the respondent), and provided to the Court on 2 December 2022, 15 December 2022, 21 February 2022, 17 May 2022 and 13 June 2023. On 17 June 2022 Mr Cameron wrote to Ms Walsh in the following terms: I refer to the above matter and the letter attached to your email below. Uwoykand Corporation Pty Ltd ("Uwoykand") has instructed me that they: 1. Consent to the applicant seeking leave to vacate the orders for the separate question hearing; and 2. Have no issue with the proposed CD timetable attached to your email below. On 17 October 2022 Mr Cameron wrote to Ms Stinton, Ms Walsh and others in the following terms: I refer to your email below. I act for Uwoykand Corporation Pty Ltd. For item 10, my client is in agreement with the State's preliminary tenure analysis position as to its interest in Lot 1 on SP299961. For item 11, my client does not assert an interest in any public works. For item 20, my client asserts an interest in the holder of a lease granted pursuant to the Land Act 1994 (Qld) for pastoral and low-key tourism purposes. My client has instructed me to seek that interest be recorded in the consent determination as follows: "The rights and interests of the holders of the following leases granted pursuant to the Land Act 1994 (Qld): (a) rolling term lease for pastoral and low-key tourism purposes (PH9/2323) over Lot 1 on SP299961 (also known as Bulimba), held by Uwoykand Corporation Pty Ltd (ACN 629 167 737); (b) …" Please advise in due course whether the State and applicant have any objection to the proposed form of the other interest clause. On 27 October 2020 Ms Stinton emailed Mr Cameron stating relevantly: I am instructed that the Sate proposes amendment to the draft clause provided for Uwoykand Corporation Pty Ltd, on the basis that the Wakaman #5 claim covers part of Lot 2 on SP299961 (rather than Lot 1), and "Bulimba" relates to the wide property name and which the State understands applies to other areas outside the claim. Reference to "Powis Holding" appears to be appropriate. The State therefore proposes the following : (a) rolling term lease for pastoral and low-key tourism purposes (PH9/2323 Powis Holdings) over Lot 21 on SP299961 (also known as Bulimba), held by Uwoykand Corporation Pty Ltd (ACN 629 167 737); Please let me know if you have any queries. I confirm that I have copied Ms Walsh into this email so that the Applicant may provide any comments. (mark-up as in original) On 29 October 2022 Mr Cameron emailed Ms Stinton and others advising that Uwoykand had no objection to the amendments proposed on 27 October 2022. On 2 December 2022 and 13 June 2023, Ms Stinton emailed further versions of the timetable to the other parties inviting comments. No concerns were expressed by Uwoykand to either the Wakaman Applicant or the State in response to those proposed timetables. 16 In her affidavit affirmed 15 July 2023 Ms Chong deposed that on 27 September 2022 she wrote to Ms Walsh in the following terms: Notice of a breach of the agreed facts between a Wakaman TO applicant/claimant of the Wakaman registered claimant area and the pastoral respondent Uwoykand Pty Ltd Last Sunday four carloads of Aboriginal people from Chillagoe, came onto Bulimba property without permission from Uwoykand Pty Ltd. They have camped on Lot 1 Ph9/2323. Which is outside of their registered claim area. A station cook and the station manager had asked them why they were on the property and did they get permission from the land owners. The Aboriginal men said no that Eddie aka Edward Thomas who is a part of the Wakaman native title group. Gave them permission to enter Uwoykand's property. Eddie Thomas has not asked Uwoykand for permission, if any of these people can enter onto the property. The station manager and the other station employees had no knowledge that the four cars of Aboriginal people were on the property. Until one of them drove back to the homestead and asked the station cook for some water and the use of a property phone and use of the Wifi. The cook and the station manager ask them to leave the property, as it is trespassing, the Aboriginal men refused to leave the property on that day but however left the next day. When the four cars left from down the river, the station men went to inspect their campsite. The campers left rubbish, dirty nappies, and uncovered human faeces along the river. When they did leave the property that late afternoon. A worker from Greg Construction company was on the property doing road maintenance work. Saw the four cars speeding as they left the property, and soon after there was a fire outbreak. The construction worker was alarmed by seeing the fire; he then quickly drove down to the station homestead to notify the station manager that there was a grass fire on Lot 1 Ph 9/4808. The station manager and his crew had just finished mustering on 4808, then had to return to where the fire had occurred and had to fight the fire. One of Greg's construction workers used one of their machinery grader to make a fire break around the fire to control it from making a disastrous damage to livestock and any other assets, and human life on the property. As a respondent party to the Wakaman native title court proceedings, Uwoykand are very angry that they are constantly targeted, by the Wakaman applicants and claimants. And believe that Uwoykand's commercial pastoral business and its people are at serious threat from being harmed by the members of the Wakaman Claimants threatening to cause considerable damages to property, cattle, assets on Bulimba Station. A letter to the Federal Courts, the State and the NQLC, needs to make aware of the serious breach by some members of the Native Title group who have breached to comply with the agreed facts order by Judge Collier of the Federal Courts served on the State Crown Law and all the parties in the proceedings. Uwoykand have given instructions that they will not consent towards a Native Title determination for the Wakaman Peoples Native Title Claim, as there is a serious dispute. A Police complaint was made against the Wakaman's Claimant Eddie Thomas and his friends/family. A police investigation is being conducted about the potential criminal activities that had taken place by the Wakaman claimants on Bulimba Station. Regards Carol Chong on behalf of Uwoykand Pty Ltd (errors in original) 17 In her affidavit affirmed 5 July 2023, Ms Walsh deposed as follows: 18. On 27 September 2022, I received an email and letter from Ms Chong on behalf of Uwoykand, a true and correct copy of which is Annexure "SW111" to this affidavit. At that time, Uwoykand was represented by Mr Cameron, and I did not respond to this communication. 18 In respect of proposed s 87A Agreement, the following facts do not appear to be in dispute: On 25 November 2022 Mr Cameron emailed Ms Stinton as follows: At the end of the clause relevant to my client (Schedule 2, clause 3(h)) please add the words "and its successors in title." Aside from that no further comments. I note that I do not appear to have received any submission. From the Applicant regarding the application of one or more of the s47-suite to the parcel of land in which my client has an interest. I recall the Applicant advising that such submissions would be forthcoming. Please advise whether the State has received any such submissions. On 9 December 2022 Mr Cameron emailed Ms Stinton, Ms Walsh and others as follows: Given the State's position on adding the words "and its successors in title", perhaps it may be easier to delete the words "held by Uwoykand Corporation Pty Ltd (ACN 629 167 737)". My concern was that the other interest clause is not taken to apply to the land held by my client only while my client holds it. By making the deleting above, the other interest clause for my client's land is identical to all other clauses for the same class of interest. It also perhaps reduces the risk of an interpretation that the clause should apply only while my client owns the land. If the State and the Applicant can consider the proposed deletion as an alternative position, and advise accordingly, I would be most appreciative. On 18 April 2023 Mr Cameron emailed Ms Stinton, Ms Walsh and others in respect of the updated draft s 87A Agreement and stated: We have reviewed the draft s87 agreements and have no comments or concerns. 19 On 23 June 2023, acting on behalf of the respondent, Mr Colin Hardie wrote to the other parties in the Wakaman proceedings in the following terms: To all Parties … RE: AGREEMENT UNDER S87A OF THE NATIVE TITLE ACT 1993 (CTH) We act for the Uwoykand Corporation (14th Respondent). We note that item 35 of timetable of 13 June 2023 requires our client to indicate whether it authorises the s87A Agreement and consents to a determination in favour of the Wakaman People #5 by 27 June 2023. We are instructed that our client will not execute the S87A Agreement in its current form and will oppose any determination of Native Title in favour of the Wakaman People over Lot 2 on SP299961. Our client also notes that clause 3(h) in schedule 3 incorrectly describes our client's rolling term lease as being for pastoral and low key tourism. We ae instructed the area of the leas is used by Kunjen People for traditional purposes as well as for commercial ventures in pastoral and tourism. We ae further instructed that the tourism ventures of our client are intended to highlight the traditional activities of the Kunjen people. Please contact the writer should you wish to discuss this matter. 20 In her affidavit affirmed 15 July 2023 Ms Chong deposed: 29. After this l heard very little from my solicitor about the Wakaman #5 until earlier this year. I am not sure of the exact date. I have seen the email of Thomas Cameron of 18 April 2023 (attached as MLS 1 to affidavit of Marita Louise Stinton of 10 July 2023). I have not seen a copy of this email before seeing it attached to this affidavit. However, I do not deny that the conversation I had with Thomas Cameron may have occurred about this time. During this conversation I told him that Uwoykand did not want to agree to anything because of the disputes that had been occurring at Bulimba. I remember him saying that a determination of native title would not affect our operations on Bulimba because it would be non-exclusive and S47 A did not apply. l did not understand what he meant by this, I had previously asked him to tell me what he meant but I do not recall that he responded. Attached and marked "CC 7" are a true copies of my text messages sent in 2022. During the conversation I recall Thomas saying if we did not agree to a determination for Wakaman #5, it was likely that there would be an award of costs against Uwoykand and he (Thomas) would face the prospect of losing his house. He said that all that we were being asked to do was agree in principle to the Wakaman #5 determination and this was the same that we had already agreed to do in February 2022 (when we were seeking rejoinder). I told him to go ahead and tell NQLC that we agree in principle to accept a determination over the bottom area of Bulimba. l am certain that he did not discuss with me the specifics of what was contained in any draft S87A agreement at this time nor, as far as l recall, did he do so subsequently.

CONSIDERATION 21 The Wakaman Applicant has sought orders that the respondent cease to be a party to QUD178/2018 pursuant to s 84(8) and s 84(9) of the Native Title Act 1993 (Cth). These sections provide: 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: (a) the following apply: (i) the person's interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and (ii) the person's interests are properly represented in the proceedings by another party; or (b) the person never had, or no longer has, interests that may be affected by a determination in the proceedings. 22 Detailed written submissions were filed by the Wakaman Applicant, the State, and Uwoykand. All parties were represented at the hearing before me, where all Counsel also made detailed oral submissions. 23 The submissions of the parties must be considered in light of the case as eventually argued by the Uwoykand. Importantly, submissions of Uwoykand referable to a conservation agreement under s 45 of the Nature Conservation Act 1992 (Qld) or a Land Management Agreement under Division 6, Part 3 of Chapter 4 of the Land Act 1994 (Qld); a Carbon Abatement Interest under Division 8C, Part 4 of Chapter 6 of the Land Act 1994 (Qld); and registration as a biosecurity entity under the Biosecurity Act 2014 (Qld), were abandoned by Uwoykand during the hearing last Friday. 24 Relevantly, the key written submission of Uwoykand was ultimately as follows: 3. Uwoykand therefore now seeks only: (a) The inclusion of a new subclause (d) to Order 11 (which deals with the relationship between the native title rights and interests and other interest) as follows: "(d) Access to that part of Lot 2 on SP 299961 ("the property") within the determination area by which (sic) the Native Title holders is subject to providing not less than 7 days written notice to the Lessor of the date, location, general activities proposed and identity of persons intending to access the property and following the Lessee's directions relating to health and safety of people and for the protection of property, chattels, crops and livestock, protected flora and fauna on the property (including in relation to the collection and disposal of garbage, vehicle access, the use of hunting dogs and firearms)." and (b) By deleting clause 3 (h) in Schedule 2 (other interests), which incorrectly identifies the lessee, and substituting the following: "3 (h) The rights, interests and obligations of the lessee under rolling term lease PH 9/4808 over Lot 2 on SP299961 and the rights, interest and obligations of the Lessee set out in: (i) Dealing 719441408 including as trustee and the rights of the beneficiaries of the Tatelyn Cattle Company Bulimba Station Community Trust; (mark-up as original) 25 Prior to consideration whether the respondent should be dismissed as a party to the proceedings for reasons of abuse of process (as contended by the Wakaman Applicant), it is useful to consider the following questions as framed by Ms Longbottom KC for the State at the hearing: (1) Are the matters in para 3 of the written submissions of the respondent able to be included in a consent determination? (2) If the answer to the first question is "yes", the second question is whether the State and the Wakaman Applicant agree to those matters being included in the consent determination? (3) If the answer to that question is "no", the third question is, is Uwoykand entitled, as a matter of law, to insist upon those matters being included in the consent determination? 26 Ms Longbottom submitted that if the answer to that third question was "no", it was not in the interests of justice that Uwoykand remain a party to the proceeding. 27 Mr Waters for the respondent agreed with the step analysis suggested by Ms Longbottom, to which I will now turn.

(1) Are the matters in para 3 of the written submissions of the respondent able to be included in a consent determination? 28 The s 87A Agreement, as signed by all parties to the proceedings other than Uwoykand, was annexed to Ms Stinton's affidavit affirmed 14 July 2023. 29 The remaining matters to which reference is made in para 3 of Uwoykand's written submissions, and which form the basis of its refusal to sign the s 87A Agreement, concern: In proposed para (a)([d]) - 7 days notice to be provided by the Wakaman Applicant to the respondent of general activities proposed, and identity of persons intending to access, Lot 2 on SP 299961, and In proposed para 3(h)(i) - specific identification of rights, interests and obligations of the lessee under rolling term lease PH 9/4808 over Lot 2 on SP299961 and as set out in Dealing 719441408, including as trustee and the rights of the beneficiaries of the Tatelyn Cattle Company Bulimba Station Community Trust. 30 Section 94A of the Native Title Act provides: An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title). 31 Section 225 of the Native Title Act in turn provides: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease--whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests. 32 In considering whether s 225(d) of the Native Title Act encompasses the terms proposed by Uwoykand, the relevant question is whether those terms would address the relationship between the interests of the respondent and the interests of the Wakaman Applicant: Brown v The State of South Australia [2010] FCA 875 at [21]-[22]. 33 At the hearing, Mr Waters submitted, in summary, that proposed para (a)([d]) and proposed para 3(h)(i) both fell within the ambit of s 225(d) because: Both paragraphs related to the relationships between the non-native title rights of the respondent and the native title rights of the Wakaman Applicant; and Both paragraphs constituted refinement of the arrangements between the Wakaman Applicant and the respondent. 34 There was no serious dispute by the Wakaman Applicant or the State that the terms as found in proposed para (a)([d]) and proposed para 3(h)(i) fell within the ambit of s 225(d) of the Native Title Act, and could have been included in the s 87A Agreement, and subsequently the consent determination.

(2) If the answer to the first question is "yes", the second question is whether the State and the Wakaman Applicant agree to those matters being included in the consent determination? 35 In short, the State and the Wakaman Applicant do not agree to the terms proposed by the respondent in para (a)([d]) and proposed para 3(h)(i) of its written submissions being included in the consent determination.

(3) If the answer to that question is "no", the third question is, is Uwoykand entitled, as a matter of law, to insist upon those matters being included in the consent determination? 36 The answer to the second question was plainly in the negative. 37 I am satisfied that Uwoykand is not entitled, as a matter of law, to insist upon the matters proposed by the respondent in para (a)([d]) and proposed para 3(h)(i) of its written submissions being included in the consent determination. 38 First, the respondent has not advanced any persuasive arguments supporting any finding that it would be entitled to insist upon those matters being included in the consent determination. 39 The high point of the submissions for the respondent in respect of proposed para (a)([d]) can be found in the following submissions: MR WATERS: Yes, your Honour. So I was emphasising the need - I mean - the biosecurity requirement is but one instance of some justification for the giving of notice of some kind as to intended presence of the land, so that compliance can be achieved. But it's also - it's going to be important for the activities or contemplated activities of both the pastoralists, my client, and the native title holders. For example, the placement of cattle that are calving in an area that's going to be occupied for the purpose of hunting may be something - certainly, something should be avoided and can be avoided simply by some degree of interaction that involves notice and cooperation. We're not trying to stifle use. We're not trying to dominate out of existence the native title rights. My client is simply trying to ensure that if a fire is seen, or people are seen camping, it will have some idea who they might be. If it has received notice that they are Wakaman people, then its concerns may be relieved. If it hasn't received notice, it's left wondering, as has been the case, who the people are and by what authority they purport to be on the property. Conversely, if the native title holders want to come on the property, it's in their interests to know that it - their presence won't be disturbed by mustering or activities at - on that occasion. (transcript 21 July 2023 pp 47-48) 40 Later, Mr Waters continued: …there is, in my submission, no good reason why something of the kind proposed in paragraph 3(a) of our submissions cannot and should not be capable of being bedded down very swiftly. It, in my submission, is in the interests of all concerned, and in the interests of justice, in that Mr O'Gorman has identified the potential - or some of the potential shortcomings in other means of enforcement, through police and so forth. I will say a little bit more about that in a minute, but it's my submission that the reasonableness of what is, on its face, put forward in 3(a), demands negotiation in good faith. Leaving aside issues of timing, it would be a matter raised - if raised in mediation, that it would be perfunctory and perhaps indicative of a want of good faith, for a party to simply say, "We're not going to say why, but we simply don't" - "aren't going to talk about that." "It's not going to be put on the agenda." And that's really the response that we've had. Now, that has been married up with perhaps poor articulation of our position. It has been married up with people taking entrenched positions and busying themselves preparing lengthy affidavits, but it remains the case that the issue is not a complicated one, and it's one that has been dealt with time and again. And I'm inviting your Honour to see some degree of benefit and wisdom in averting the sort of controversies that might happen down the track - or I should say will happen, because if parties don't know what each other are up to, or what expectations each other hold, there is going to be a worsening of relationships, rather than an improvement. (transcript p 49) 41 In summary, Uwoykand submitted that it would be reasonable for proposed para (a)([d]) to be included in the s 87A Agreement and subsequently the consent determination, because there would be "some degree of benefit and wisdom in averting the sort of controversies that might happen down the track". 42 Notwithstanding the capacity of the parties to agree upon the term as proposed by the respondent, this argument falls far short of an entitlement on the part of Uwoykand to have such a term included in the proposed consent determination (see observations of Mansfield J, albeit in a different context, in Brown at [26]). 43 Second, no argument of substance has been advanced by Uwoykand that its interests would not be protected by the s 87A Agreement, which Uwoykand has had in final draft form since 18 April 2023 (and to which it previously indicated agreement through its lawyer Mr Cameron). 44 I further note s 44H of the Native Title Act, which provides: Rights conferred by valid leases etc. To avoid doubt, if: (a) the grant, issue or creation of a lease, licence, permit or authority is valid (including because of any provision of this Act); and (b) the lease, licence, permit or authority requires or permits the doing of any activity (whether or not subject to any conditions); and (ba) an activity is done in accordance with the lease, licence, permit or authority and any such conditions; then: (c) the requirement or permission, and the doing of the activity, prevail over any native title rights and interests and any exercise of those rights and interests, but do not extinguish them; and (d) the existence and exercise of the native title rights and interests do not prevent the doing of the activity; and (e) native title holders are not entitled to compensation under this Act for the doing of the activity. Note 1: Any compensation to which the native title holders may be entitled under this Act for the grant of the lease, licence, permit or authority may take into account the doing of the activity. Note 2: This section is not intended to imply that the person carrying on the activity is not subject to the laws of a State or Territory. 45 Section 24AA also provides: … Activities etc. prevail over native title (7) To avoid doubt, section 44H provides that a valid lease, licence, permit or authority, and any activity done under it, prevail over any native title rights and interests and their exercise. 46 Section 44H was examined in detail by the Full Court in De Rose v State of South Australia (No 2) (2005) 145 FCR 290; [2005] FCAFC 110 in the following terms: 159 Section 44H of the NTA does not alter this conclusion. In our view, s 44H is not intended to apply where the rights granted under a lease extinguish the very native title rights and interests which are affected by the 'doing of any activity' in accordance with the lease. If s 44H applied in that situation, it would contradict s 23G(1)(b)(i) of the NTA which confirms the extinguishment of native title rights and interests in the same circumstances. Given the elaborate scheme of Div 2B of Part 2 of the NTA and corresponding State and Territory legislation confirming past extinguishment of native title, it is hardly likely that s 44H was intended to prevail over s 23G(1)(b)(i). 160 In any event, s 44H is concerned with the non-extinguishment of native title rights and interests by reason of 'an activity' done in accordance with a lease or other instrument. The Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) ('Explanatory Memorandum') (pars 6.21-6.28) distinguishes between rights and interests granted and activities performed in accordance with the instrument granting those rights and interests. The Explanatory Memorandum gives two examples of such activities. One relates to 'irrigation activities' conducted pursuant to an irrigation licence (pars 6.26-6.27) and the other to prospecting for minerals on land affected by native title (par 6.28). The Explanatory Memorandum refers to both of these activities as 'physical actions'. 161 The Explanatory Memorandum identifies the concern that s 44H seeks to address as the possible need, following the decision in Wik, for pastoral lessees 'to obtain the agreement of native title holders in order to control activities under their lease, such as construct a dam' (par 6.21). Section 44H is said to be: 'intended to ensure that, provided the lease is valid in accordance with the NTA, the lessee is able to carry on activities under the lease notwithstanding native title.' 162 The Explanatory Memorandum supports a construction of s 44H that restricts its operation to activities carried out in accordance with rights and interests granted under a lease and not to the rights and interests granted by the lease. In the present context, that construction would enable the lessee to use the land for any activity that is necessary or incidental to constructing improvements on the land. The lessee's right to carry out those activities would thus prevail over, but not extinguish, any conflicting native title rights and interests. But s 44H would not prevent the right granted under the lease to construct and use the improvement (that is, the house, dam, airstrip or other improvement) from extinguishing native title. However, in view of the conclusion that s 44H does not apply to the rights in question in the present case, it is unnecessary to form a final view on this question of construction. 163 Given that conclusion, it is also not necessary to decide whether (as the State submitted) s 44H applies only to an activity done after the commencement of the NTAA 1998, which introduced s 44H into the NTA. The better view, however, would seem to be that s 44H is not intended to be so limited. 164 The fact that s 44H of the NTA is expressed in the present tense does not imply that the provision is not to apply to events occurring before the date of its commencement: NTA, s 250. Item 17(2) of Sch 5 to the NTAA 1998 states that s 44H applies, inter alia, to the grant of a lease at any time, whether before or after the commencement of the section. It is true, as the Solicitor-General pointed out, that Item 17(2) (unlike Item 17(1) in relation to s 24GC) does not explicitly state that s 44H applies to activities undertaken at any time. On the other hand Item 17(2) does not seek to override s 250 by stating explicitly that s 44H is not intended to apply to activities undertaken before the commencement of the NTAA 1998. If Item 17(2) was intended to distinguish between the grant of a lease (or some other interest) and the doing of an activity required or permitted by the lease, it might have been expected to say so explicitly. Finally, as s 24GC explicitly applies only to leases granted on or before 23 December 1996 there was no need for Item 17(1) to deal with leases, as opposed to activities, prior to the commencement of the section. 165 The State's argument on retrospectivity may have more force if s 44H was located in Div 3 of Part 2 of the NTA, which is headed 'Future acts etc and native title'. The section is, however, placed in Div 4 of Part 2, headed 'Other provisions relating to native title'. It is so placed notwithstanding the oddity that s 24AA, which purports to give an overview of Div 3, summarises in subsection (7) (albeit not quite accurately) the effect of s 44H. 47 To the extent that activities of Uwoykand could conflict with proposed activities of members of the Wakaman Applicant, s 44H would appear to grant precedence to Uwoykand as the registered holder of a pastoral lease, and is supportive of the position that the interests of Uwoykand are to that extent protected. 48 Further, in relation to proposed para 3(h)(i), insofar as the s 87A Agreement describes the nature of the interest of Uwoykand, it does so in Schedule 2 to that Agreement by reference to the pastoral lease held by Uwoykand the subject of proposed para 3(h)(i). At the hearing, a copy of the relevant Title to the pastoral lease of Uwoykand was tendered, describing the Registered Lessee as follows: Dealing No: 719441408 04/06/2019 UWOYKAND CORPORATION PTY LTD A.C.N. 629 167 737 TRUSTEE UNDER INSTRUMENT 719441408 49 Ms Longbottom at the hearing submitted that the lease, in terms, picks up the trust. Plainly this is correct. Mr Waters submitted in turn: MR WATERS: Yes, I understand. Yes. Look, my submission would simply be that clarity in one location is desirable. The small step of describing the trust in the determination, rather than leaving it to be found by reference to the certificate of title, is avoidable with a handful of typed characters. That's all I can say. I mean, it's quite true that anyone with a lawyer will be able to conduct a search and so forth. It's not going to be lost, but the people that will be accessing the land will not, necessarily, have access to that sort of assistance. HER HONOUR: And the people accessing the land need to know it's a trust because--- MR WATERS: Because there will be - the beneficiaries of the trust are entitled to use the land, and it is not - in includes some Wakaman People, but it doesn't include every Wakaman person, and it includes some people that are not Wakaman. HER HONOUR: All right. Thank you. MR WATERS: So the existence of the trust explains some degree of usage beyond that of the corporate trustee. HER HONOUR: Well, I imagine that anybody who does not have a relationship with Uwoykand - would imagine that they're not the beneficiaries of the trust and not covered by that aspect of the interests asserted by Uwoykand. Surely, that would be the case. MR WATERS: It may be. It's not an issue that I seek to agitate further. (transcript pp 66-67) 50 In my view Uwoykand has no legal entitlement to the desirability of "clarity in one location" in the s 87A Agreement, referable to the existence of the relevant trust, as submitted by Uwoykand. 51 I am not satisfied that Uwoykand is entitled to insist, as a matter of law, on either para (a)([d]) or proposed para 3(h)(i) of its written submissions being included in the s 87A Agreement or subsequent consent determination.

Power of the Court to dismiss parties pursuant to ss 84(8) and 84(9) of the Native Title Act 52 It is not in dispute that the respondent has, to date, refused to execute the s 87A Agreement for reasons ultimately referable to para (a)([d]) and proposed para 3(h)(i) of its written submissions. The next question is whether this refusal warrants the Court exercising its power to dismiss Uwoykand as a respondent. 53 In Alvoen on behalf of the Wakaman People #3 v State of Queensland [2019] FCA 1469, Reeves J summarised the principles identified by White J in Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 as follows: (a) the discretion vested under s 84(8) is mirrored in that vested under s 84(5) (see at [104]); (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]" (see at [105]); (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) (see at [106]); (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 (see at [107]); (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" (see at [108]); (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 (see at [109]); (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 (see at [120]); (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 (see at [121]-[123]); (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 (see at [124]-[129]); 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 (see at [130]). 54 It is not in dispute in this case that the respondent has a clear and legitimate objective which it hopes to achieve as a respondent party, or that it does not have legitimate interests to protect in respect of the native title determination applications. The key question is whether in the present circumstances there are factors weighing in favour of dismissal of the respondent as a party notwithstanding the relevant objective or interests it asserts.

Interests of Justice 55 At the hearing the State framed its submissions in similar terms to the Wakaman Applicant, although as I have observed already in this judgment, by reference to the interests of justice warranting removal of Uwoykand rather than abuse of process principles. 56 Referring back to the step analysis submitted by Ms Longbottom , the State's position was that if Uwoykand was not entitled to insist as a matter of law that the s 87A Agreement be amended as it sought, and that ultimately the consent determination include the paragraphs sought by Uwoykand, then Uwoykand should be removed as a party to the proceedings in the interests of justice. Uwoykand took no issue of substance with this formulation of principle. 57 To the extent that the arguments of the State and the Wakaman Applicant were substantiated in this regard, such that I am satisfied that Uwoykand had no basis for its insistence on inclusion of the paragraphs it sought prior to its execution of the s 87A Agreement, it follows that the interests of justice warrant the removal of Uwoykand as a party to the proceedings. 58 On this basis, the Wakaman Applicant is entitled the order for removal of Uwoykand it sought in its interlocutory application. 59 In addition however, the State further submitted that, on the evidence before the Court, the Court could conclude that the substantive purpose for which Uwoykand sought to remain as a party concerned the connection issues that were outside the limited basis upon which it was joined. In particular, the State relied on the evidence of Ms Chong, which the State submitted in substance complained of intra-Wakaman disputes. Ms Longbottom directed my attention to annexures CC-8 and CC-9 of Ms Chong's affidavit, and submitted that the issue of connection was at the heart of Ms Chong's (and Uwoykand's) concerns. 60 I note that the respondent did not press annexure CC-8 at the hearing, as was also plain from para 30 of Ms Chong's affidavit. The extent to which the respondent relied on annexure CC-9 of Ms Chong's affidavit is unclear. 61 Ultimately, on the present state of the evidence and argument before the Court, it is unnecessary for me to find that Uwoykand's case can be regarded as concerned with the connection issues which were outside the limited basis on which it had been joined.

Abuse of process 62 While the Wakaman Applicant is entitled to an order for removal of Uwoykand in the interests of justice, at the hearing the Wakaman Applicant primarily submitted that the Court should order that Uwoykand cease to be a respondent to the substantive proceedings because the conduct of Uwoykand constituted an abuse of process of the Court. The Wakaman Applicant further submitted that the refusal of Uwoykand to execute the s 87A Agreement must be considered in light of not only the previous agreement by Uwoykand, through its lawyer Mr Cameron, to the terms of the s 87A Agreement after extensive discussions between all parties, but also the timing of Uwoykand's communication of its refusal (being less than 2 months before the proposed date of the consent determination). 63 Uwoykand submitted that the submissions of the Wakaman Applicant relied substantially on steps taken by Uwoykand to give effect to its agreement to participate in the progression of the Wakaman #5 claim through to a consent determination. It submitted that this represented a conflation of the agreement of Uwoykand to enter an agreement and agreement to participate in a consent determination, with references to "the Agreement". It further submitted that until recently the timetable for progressing the proceedings towards a consent determination was only an "indicative program". Uwoykand submitted that the matters it raised were uniquely focused on its interests and the relationship between its interests and the native title and interests, and that was practicable that Uwoykand's concerns be heard, responded to and if necessary mediated in the short time now available before the matter is scheduled to be finalised. 64 Given the detailed submissions made by the parties in respect of whether the conduct of Uwoykand had constituted abuse of process, such as to warrant its removal as a respondent to the proceedings, it is appropriate for me to give consideration to those submissions. 65 In my view the submissions of the Wakaman Applicant are substantiated. 66 The entire purpose of the dialogue between the parties to QUD178/2018 during 2022 and the first half of 2023 was clearly directed at progressing the proceedings to a consent determination by execution of an Agreement between the parties. The distinction as alleged by Uwoykand, between "agreement of Uwoykand to enter into an agreement", and its "agreement to participate in a consent determination", is not only hollow in the circumstances, it is false. 67 The evidence is clear that Uwoykand had agreed to the terms of the s 87A Agreement which has now been executed by the other parties. Mr Cameron was clearly authorised to agree to the terms of the s 87A Agreement on behalf of Uwoykand, and did so. That he was authorised to do so is further supported by the evidence of Ms Carol Chong in her affidavit at [29]. 68 I further reject the submission of Uwoykand at the hearing that a "live issue" had remained unresolved between the parties since 27 September 2022 concerning the alleged desire of Ms Chong for "someone to turn to" in respect of her concerns. This was the subject of an oral submission as follows: MR WATERS: And I would say, your Honour, there is a difference between agreement in principle and "I'm locking myself in for all time with this and no more to contribute." I would also suggest that the - if one looks at the correspondence that has occurred, emanating from Ms Chong, whilst there is a residual of regret, I will call it, concerning the limits of her participation in the proceedings, that hasn't penetrated into the conduct of the proceedings. I will return to that at a latter point. But there is also apparent that - it's apparent that Ms Chong really was looking for someone to turn to. Now, the letter that was--- HER HONOUR: I don't understand what you mean. MR WATERS: Well, I--- HER HONOUR: Turn to for what? MR WATERS: For accommodation of her aspirations, in terms of the agreement. Now, by way of example, I'm going to - if I might refer your Honour to HER HONOUR: Sorry, I still don't understand why you say that. What does that even mean? MR WATERS: It means--- HER HONOUR: Given that - let me just say - Ms Chong was legally represented at the time--- MR WATERS: Yes. HER HONOUR: ---there were negotiations going on in relation to the contents of any consent determination, why does she need someone else to turn to? I don't understand that at all. MR WATERS: Well, your Honour, the fact is that she wrote correspondence to Ms Walsh of North Queensland Land Council on 27 September, in which she said that the corporation has given - have given instructions that they will not consent towards a native title determination for the Wakaman claim as there is a serious dispute. And this is in the context of disputes about the entry onto the land. She then continues to-- HER HONOUR: This is 27 September 2022? MR WATERS: Sorry? HER HONOUR: 2022? MR WATERS: Yes. That's - in September - it's '22. Now, your Honour, that - Ms Walsh gives an explanation that she didn't reply because Ms Chong - or the corporation had its own lawyers, which may be appropriate. It doesn't seem to have been referred to the lawyers. But it was very direct - a very direct indication that these controversies about access need to be worked through. HER HONOUR: Can I just ask you, though, Mr Waters, are you starting to go down the path of the instructions to the lawyers - to Mr Cameron weren't accurate, and there were other issues going on, which I think has now been - well, my understanding is to the extent that Mr Hardie's affidavit has not been pressed, at paragraphs 2 to 6, those arguments were abandoned at that point. MR WATERS: Your Honour--- HER HONOUR: I'm just a bit - I'm just - I must admit, I'm just wondering if you're trying to have your cake and eat it too, at the moment, Mr Waters. MR WATERS: I'm not - well, in one sense, I may be, and I - I'm trying to assist your Honour in appreciating the full scope of the evidence. Now, a solicitor was engaged, but not all correspondence seems to have passed in all the directions it should have gone - or have been understood, or received, or whatever the case may be. But I'm referring to a letter that was sent and was received. HER HONOUR: I'm really wondering what I can do with that evidence, though, Mr Waters. MR WATERS: Well, your Honour--- HER HONOUR: I really am wondering. MR WATERS: Your Honour, it can be taken as--- HER HONOUR: Well, that submission, actually - that submission. MR WATERS: Well, it can be taken as an indication that matters concerning the relationship between the rights was a subject that required attention, coming--- HER HONOUR: Required attention by whom? MR WATERS: By the parties to any agreement. Now, your Honour may say, "And subsequent correspondence on its face makes no follow-up or commentary pressing that matter further, until Mr Hardie became involved a month ago." But, your Honour, it is there, and to say that the matters of concern were not raised at all is not quite right. Now, your Honour--- HER HONOUR: So - okay. So your articulation of this point is the evidence before the court indicates that there was a live issue of dispute - is this right-- MR WATERS: Yes. HER HONOUR: ---between the parties, concerning protection of the interests of your client? MR WATERS: Yes. HER HONOUR: Okay. And that was never resolved? MR WATERS: It was never--- HER HONOUR: Is that your submission? MR WATERS: It wasn't resolved. HER HONOUR: Right. (transcript pp 56-58) 69 The evidence before the Court is that Ms Chong wrote directly to Ms Walsh on 27 September 2022 in respect of Ms Chong's concerns regarding access by strangers to the pastoral property. However to submit that there remained, as a result, a "live issue" completely misrepresented the reality that Uwoykand was legally represented at that time, that Mr Cameron was plainly the proper person for Ms Chong to "turn to" if she had concerns, that at relevant times Mr Cameron was acting under Uwoykand's instructions, that those instructions were to agree to the s 87A Agreement, and that Mr Cameron did so. 70 There was no unresolved "live issue" as submitted by Mr Waters. 71 Returning to principles of abuse of process, as the High Court observed in Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd [2009] HCA 43; 239 CLR 75 at [28] the categories of abuse of process are not closed, and … the courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of the procedural rules of court, would nevertheless be "manifestly unfair to a party to litigation ... or would otherwise bring the administration of justice into disrepute among right-thinking people". 72 On the material before the Court, there is no reason for me to find that the interests of the respondent are not protected by the s 87A Agreement, or by the laws of the Commonwealth and State of Queensland, including s 44H of the Native Title Act. Indeed it did not appear to be in dispute that Uwoykand was at liberty to seek police intervention in circumstances of unwarranted trespass, and that it had in fact sought such intervention. The extent to which it is entitled to such intervention is not an issue for this Court in the present case. 73 Uwoykand has refused, by reference to the paragraphs identified in para 3 of its written submissions, to execute a previously-agreed s 87A Agreement, in the weeks immediately prior to an agreed consent determination date. I have found that Uwoykand was not entitled to insist on inclusion of those paragraphs in the s 87A Agreement. However it appears that Uwoykand has indicated preparedness to sign the s 87A Agreement only if its demands as set out in paragraph 3 of its written submissions were met (and continued to take that position up to and including the date of the hearing). 74 I also note that no explanation for the delay on the part of Uwoykand to reverse its previous agreement to the s 87A Agreement was ultimately argued. As Mortimer J (as her Honour then was) observed in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 1) [2021] FCA 1463: 23. The point of explaining this is to make very clear that in a native title case, there are times to speak up and there are times where it may be too late to speak up. There are times to object and there are times where it may be too late to object. People in this region know by now the Court is open to listening to what claim group members have to say where they speak up about significant issues and where they speak up early so problems can be addressed. The joinder of Ms Symonds and Mr Miller to this claim back in August 2019 is an example of that. But as I have said in other cases in Western Australia (see Lawson on behalf of Badimaya Barna Guda People v Western Australia [2020] FCA 104 at [99], Sturt on Behalf of the Jaru Native Title Claim v Western Australia [2018] FCA 1923 at [57]), people cannot delay; they cannot wait until just before a big and expensive event like a consent determination and put forward a complaint that they could have made a lot earlier and could have made at a more appropriate stage in the proceeding. There is just too much disadvantage to other parties, and to the way the Court must conduct its judicial business, to allow that to occur. (emphasis added) 75 The conduct of Uwoykand is unjustifiably oppressive to the Wakaman Applicant and to the claim group (see Lawson on behalf of the Badimaya Barna Guda People v State of Western Australia [2020] FCA 104 at [139]), and is, in my view, an occasion where a party has sought to use the "carrot of consent to the determination as leverage to secure agreement on other matters" (see Mansfield J in Brown at [38]). 76 I am satisfied that the conduct of Uwoykand as I have described constitutes an abuse of process of the Court, warranting dismissal of Uwoykand as a party pursuant to s 84(8) of the Native Title Act.

CONCLUSION 77 I will order that Uwoykand cease to be a party to the proceedings pursuant to s 84(8) of the Native Title Act 1993 (Cth). 78 I understand that the Wakaman Applicant no longer seeks costs reserved pursuant to Order 2 of the Orders of 15 February 2022 when leave was granted to Uwoykand to be joined as a respondent party. 79 However the Wakaman Applicant and the State have both sought costs of this interlocutory application. I will hear the parties in respect of the filing of written submissions concerning those costs. I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.

SCHEDULE OF PARTIES Second Applicant ROBYN HOOLEY Third Applicant RAELENE MADIGAN Fourth Applicant CAROL PAYNE Fifth Applicant WILLIAM THOMAS Second Respondent MAREEBA SHIRE COUNCIL Third Respondent TABLELANDS REGIONAL COUNCIL Fourth Respondent ERGON ENERGY CORPORATION LIMITED ACN 087 646 062 Fifth Respondent TELSTRA CORPORATION LIMITED Eleventh Respondent JOHN ANTHONY FOOTE Twelfth Respondent JANELLE FLORANCE FOOTE Thirteenth Respondent HEATHER JEAN MATTHEWS Fourteenth Respondent UWOYKAND CORPORATION PTY LTD Fifteenth Respondent PENNY RENEE MCCLYMONT Sixteenth Respondent REX EDWARD MCCLYMONT Seventeenth Respondent ROBERT O'SHEA Eighteenth Respondent WHITE RIVER RESOURCES PTY LTD Nineteenth Respondent AUSTRALIAN FINEGRAIN MARBLE PTY LTD Twentieth Respondent EUGENE JOHN MATTHEWS