Fourmile on behalf of the Gimuy Walubara Yidinji People v State of Queensland

1. The Court has power under s 84 of the Native Title Act 1993 (Cth) to join or remove a person as a party to a native title determination application. The power to join a person as a party is conditioned on the Court being satisfied that they have an "interest" that may be affected by a native title determination in the proceeding and it is in the interests of justice that the person be joined: Act, s 84(5) and s 225. The power to remove a person as a party may be exercised at any time, but the Court must consider making such an order when, relevantly, it is satisfied that the person no longer has an interest that may be affected by a determination: Act, s 84(8) and s 84(9)(b).
2. The principles relevant to the exercise of the power in s 84 of the Act are well-settled and need not be restated here. They were helpfully summarised by O'Bryan J in Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia [2023] FCA 930 at [41] and [43]. Unsurprisingly, the considerations on an application to join a person (under s 84(5)) and remove a person (under s 84(8) and s 84(9)) are similar: Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 at [104] (White J) and Starkey v State of South Australia [2011] FCA 456; (2011) 193 FCR 450 at [54] (Mansfield J). In these applications, those considerations relevantly include:

(a) whether the native title rights and interests asserted by the Yirrganydji parties have some "factual foundation": Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310 at [16] (Greenwood J); see also, Sumner v State of South Australia [2014] FCA 534 at [25]- [26] (Mansfield J);

(b) whether the Yirrganydji parties' other described "interests" are capable of clear definition, are not indirect and lacking in substance, and are of a kind that may be affected in a demonstrable way by a determination of native title: TR (Deceased) on behalf of the Kariyarra-Pipingarra People v State of Western Australia [2016] FCA 1158 at [34]- [35] (North ACJ) and Gomeroi People v Attorney General of New South Wales [2013] FCA 81 at [24] (Jagot J); and

(c) where the interests of justice lie, including having regard to the objects and purposes of the Act, as well as the overarching purpose of the civil practice and procedure as expressed in s 37M and s 37N of the Federal Court Act: Kum Sing on behalf of the Mitakoodi People #5 v State of Queensland (No 2) [2022] FCA 248 at [17] (Perry J).

1. The native title rights and interests asserted by the Yirrganydji parties are best understood in the context of the referees' findings. That is because the referees' report answered the question of the group or groups holding native title rights and interests in the claim area immediately before the acquisition of sovereignty.
2. It is uncontroversial that the native title rights and interests asserted by the Yirrganydji parties are not tenable if they contradict or undermine the findings made by the referees' report. For convenience, I will use the shorthand "claim" to refer to the native title rights and interests upon which the Yirrganydji parties defensively rely in this proceeding: cf, Dimer at [41(c)] and Commonwealth of Australia v Clifton [2007] FCAFC 190; (2007) 164 FCR 355 at [57]- [58] (Branson, Sundberg and Dowsett JJ).

1. The referees found that immediately before the acquisition of sovereignty, both Yidinji totemic patriclans and Yirrganydji totemic patriclans (from whom the Yirrganydji parties descend) held native title rights and interests within their "study area". Their respective totemic patriclan areas were depicted in a map at Schedule 21 to the referees' report, a copy of which is annexed to these reasons (Annexure 1). A map of the area claimed by the Gimuy Walubara Yidinji people in this proceeding is also annexed (Annexure 2).
2. The Yidinji totemic patriclan area and Gimuy Walubara Yidinji people claim area coincide. But the Yirrganydji totemic patriclan area is outside the claim area and immediately to its north and west.
3. The referees found that the totemic patriclans held native title rights and interests in their respective areas under a normative system of law and custom which was based on filiation. Those laws and customs provided for mutual recognition of both patriclan estates and the general areas associated with a language variety as identified by the people themselves (as opposed to technical linguistic analysis), as well as rules of succession to the territory of dwindling or extinct patriclans.
4. The referees' report also recorded the agreement of the anthropological experts that the totemic patriclans held "unrestricted" rights to their respective areas. These included, amongst others, the "right to control the access of others" to the patriclan area. Such rights find expression under the Act as exclusive native title rights: see generally, Northern Territory v Griffiths (dec'd) (on behalf of the Ngaliwurru and Nungali Peoples) [2019] HCA 7; (2019) 269 CLR 1 at [75] and [83] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

What native title rights and interests do the Yirrganydji parties assert in the claim area?

Native title rights and interests obtained by succession?

1. The referees' report left open the possibility that a group or groups could "claim" to hold native title in the claim area based on succession to the territory of dwindling or extinct Yidinji totemic patriclans. The Yirrganydji parties do not assert that their ancestors succeeded to the claim area after effective sovereignty.
2. That has not always been the case.
3. Back in December 2020, the Yirrganydji Applicant told the Court that they may make a claim "based on adaptation, change and/or succession" to the claim area: Singleton at [70]-[71], citing Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9; (2015) 325 ALR 213 at [713]- [719] (Mansfield J). However, by October 2021, the Yirrganydji Applicant had changed their position, telling the Court that they would not now allege they had acquired native title rights and interests in the claim area by a process of succession: Singleton (No 2) at [21].
4. At that time, the Yirrganydji Applicant told the Court that while they disagreed with the factual findings made by the referees, they nonetheless acknowledged the legal consequences that followed from the adoption of the referees' report: Singleton (No 2) at [21]. Those legal consequences relevantly included the dismissal of the Yirrganydji applications on the merits, insofar as they overlapped the claim area, because without a claim based on succession they could not succeed: Singleton (No 2) at [25]-[26].

Some other bases for the asserted native title rights and interests?

1. At the hearing of the joinder and removal applications, there was some confusion as to the precise basis upon which the Yirrganydji parties claim to hold native title if there were no Yirrganydji totemic patriclans in the claim area immediately before the acquisition of sovereignty, and the Yirrganydji parties do not say that they came to acquire native title rights and interests after effective sovereignty through a process of succession to "the territory of dwindling or extinct" Yidinji totemic patriclans.
2. That confusion was exacerbated by the report of anthropologist, Mr Peter Blackwood, dated 16 June 2025 (Blackwood Report). Mr Blackwood was the expert for the Yirrganydji Applicant during the referee process. The Yirrganydji parties relied upon the Blackwood Report at the hearing of these applications to provide evidential support for the native title rights and interests they now assert.
3. The Blackwood Report is curious in that Mr Blackwood was not briefed to answer questions. Rather, he was given an "outline of case" (case outline) and asked to prepare a report "commenting upon those matters" in the case outline as "you deem appropriate ... in your capacity as an expert witness": cf, Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85] (Heydon JA).
4. The case outline appears to be premised upon succession to the claim area because, amongst other matters, it asserts that "[t]he connection of the Yidinji to the Claim Area has changed/was reduced/lapsed following effective sovereignty. This resulted in an estate which, in a practical sense, was vacated".
5. At the hearing of the applications, senior counsel for the Yirrganydji parties was "very clear that succession doesn't form part of the claim". Mr O'Gorman SC clarified that the basis of the claimed native title rights and interests is summarised in the affidavit of the Yirrganydji parties' solicitor, Ms Ann English, dated 1 September 2025 (summary). Mr O'Gorman SC further confirmed that to the extent there is any difference between the summary (provided by Ms English) and the case outline (given to Mr Blackwood), the Yirrganydji parties rely on the summary.
6. The summary relevantly provides that:

The Yirrganydji People was one of the groups that held native title rights and interests in the area in question immediately before sovereignty. That is, the Yirrganydji People held native title rights and interests in, inter alia, part of the GWY Claim area in question immediately before the acquisition of sovereignty.

(Emphasis added)

1. As can immediately be seen from that extract, the basis upon which the Yirrganydji parties now assert native title rights and interests in the claim area is untenable. That is because the summary is premised upon the Yirrganydji people holding native title rights and interests in the claim area immediately before the acquisition of sovereignty, when the referees found that they did not: cf, Singleton (No. 2) at [21]-[26].
2. A further difficulty is that the claim described in the summary is without "factual foundation": Chippendale at [16]; see also, Dimer at [41(d)] and [43(b)]. The Blackwood Report does not provide a factual foundation for the claim because he was commenting upon a relevantly different case.
3. At the outset of the Blackwood Report, Mr Blackwood provides the following summary of his understanding of the findings made by the referees:

[7] In the present case, I understand from its report that the [referees' report] did not make any findings which directly linked either the apical ancestors it found to have likely occupied the inquiry's study area ... or their descendants today, specifically to the [Yirrganydji area of interest] section of the study area or to patriclans for the [Yirrganydji area of interest]. That is, while the [referees' report] made a finding that its study area (which includes the [Yirrganydji area of interest]) was occupied at effective sovereignty by totemic patriclans of the Yidinji, Djabugay and Yirrganydji peoples ... and made a finding regarding the indicative internal boundaries within the study area occupied by each of the Yidinji, Djabugay and Yirrganydji people ... it did not make findings as to the number of, identifies of, boundaries of, or territories of individual totemic patriclans, nor does it link the apical ancestors listed at [paragraph 563 of the referees' report] to specific patriclans or patriclan territories within their respective Yidinji, Djabugay and Yirrganydji areas indicated on the map @ Schedule 21.

[8] In my opinion the [case outline] addresses this issue by spelling out a post-sovereignty process of adaptation by which the Yirrganydji respondents have been able to safeguard the continuity of traditional law and custom for [their area of interest within the claim area], and in doing so**, have come to regard themselves as today holding native title rights and interests in [that area],** even though the [referees' report] found that the Yirrganydji ancestors at the time of sovereignty did not hold native title rights and interests in [that area], in that the area the [referees' report] indicated as belonging to Yirrganydji patriclans (see [referees'] report map @ Schedule 21) did not at the time of effective sovereignty include [their area of interest within the claim area]. In my opinion, the ethnographic material which I compiled in Blackwood 2021, and to which my comments in this report are directed, are relevant to this question of continuity and that they support the sort of process of adaptation in the broader context of the regional society as is proposed in the [case outline].

1. As can be seen from that extract, Mr Blackwood is "commenting" upon a case premised upon the acceptance of the finding by the referees that the Yirrganydji people did not hold native title rights and interest in the claim area immediately before the acquisition of sovereignty. That is relevantly different to the case detailed in the summary, which is premised upon those rights and interests being possessed by the Yirrganydji people pre-sovereignty. The Blackwood Report does not, therefore, provide a factual foundation for the native title rights and interests the Yirrganydji parties now claim.
2. Further, and in any event, the view Mr Blackwood expresses in the Blackwood Report - that the Yirrganydji respondents have come to regard themselves as today holding native title rights and interests - falls short of an opinion that the Yirrganydji respondents possess those rights and interests under the traditional laws they acknowledge and the traditional customs they observe.
3. Mrs Singleton, Ms Sheppard and Ms Shaw have also provided affidavits in support of the native title rights and interests they assert. Those affidavits do not, however, provide a factual foundation for the claim as outlined in the summary. That is because, as might be expected, their affidavits are confined to an account of their family history, transmission of aspects of law and custom and the contemporary exercise of asserted native title rights and interests (including in the claim area). Such evidence does not directly bear upon whether the Yirrganydji people possessed native title rights and interests in the claim area immediately before the acquisition of sovereignty.
4. Given those matters, I am not persuaded that the Yirrganydji parties have established that the native title rights and interests described in the summary rise above "mere assertion": Sumner at [25]-[26] and Dimer at [41(d)] and [43(b)]. The evidence upon which the Yirrganydji parties rely cannot establish facts from which a finding of a requisite native title "interest" could be made. That is because the evidence either does not address the "claim" advanced by the Yirrganydji parties (the Blackwood Report) or is not evidence that, in and of itself, is capable of establishing the possession of such rights pre-sovereignty (the Yirrganydji parties' affidavits).
5. It follows that I am not satisfied that the competing native title interest asserted by the Yirrganydji parties justifies Mrs Singleton and Ms Sheppard remaining, nor Ms Shaw being joined, as parties to the proceeding: cf, Dimer at [41(d)] and [43(c)] and the authorities referred to therein.

What other interests do the Yirrganydji parties assert in the claim area?

1. The Yirrganydji parties assert two other categories of "interest" that may be affected by a determination: (i) the Alluna Land Trust; and (ii) an Indigenous land use agreement between Mrs Singleton (on behalf of the Yirrganydji people) and the Cairns City Council dated 19 January 2020 (ILUA).

1. In 2002, land within the claim area was vested in the Alluna Land Trust pursuant to the Aboriginal Land Act 1991 (Qld) for the benefit of the Aboriginal people concerned with the land, their ancestors and descendants. Mrs Singleton gives evidence that at the time of the transfer, there was an aged care facility on the site that had been constructed by the State. She deposes that the Alluna Land Trust receives significant rental income from the aged care facility, which is used to provide benefits to the members of the Alluna Land Trust, such as assistance with funeral costs and donations to Indigenous sporting events to encourage youth participation. Mrs Singleton has always been on the Executive Committee for the Alluna Land Trust, but (quite properly) acknowledges that she does not have authority to say anything further about its operation.
2. The Yirrganydji parties submit they hold cultural rights because of the Alluna Land Trust. They contend that an exclusive determination in this proceeding will have the effect of denying them the exercise of those cultural rights in contravention of s 28 of the Human Rights Act 2019 (Qld). Section 28 of the Human Rights Act recognises that Aboriginal and Torres Strait Islander peoples hold distinct cultural rights which they must not be denied the right to control, maintain, protect and develop. The Yirrganydji parties argue that they must be parties to the proceeding so that they can "ensure that the Minister and Crown Law uphold and do not reach agreement" with the Applicant in relation to the Alluna Land Trust that in any way derogates from those rights.
3. I do not accept that the Yirrganydji parties hold an "interest" within the meaning of s 84 of the Act by reason of the Alluna Land Trust. As the State outlines, there is no evidence that the continuation of the Alluna Land Trust itself would be affected by a determination in the proceeding. Further, while s 28 of the Human Rights Act enumerates cultural rights that a public entity must act compatibly with, those rights do not have a free-standing operation: Innes v Electrical Commission of Queensland (No 2) [2020] QSC 293; (2020) 5 QR 623 at [197] (Ryan J) and BZN v Chief Executive, the Department of Children, Youth Justice and Multicultural Affairs [2023] QSC 266 at [66] and [233] (Crowley J); see also, Human Rights Act, s 58 and s 59. The Yirrganydji parties' submissions fail to explain: how their cultural rights are derived from the Alluna Land Trust; how or why a determination will put at risk the exercise of those cultural rights; or, indeed, how their participation in the proceeding is necessary to prevent the Applicant from reaching an agreement with the Minister and Crown Law that may derogate from those rights. The failure to provide that explanation is particularly stark given that it is the trustee of the Alluna Land Trust, not the Yirrganydji parties, who holds the land on trust for the First Nations people concerned.
4. Given those matters, the "interest" said to arise by virtue of the Alluna Land Trust is not capable of clear definition and is properly characterised as indirect and lacking in substance: Kariyarra-Pipingarra at [34]-[35]. I am not satisfied that the asserted interest is of a kind that may be affected in a demonstrable way by a determination such that it would provide a basis for Mrs Singleton and Ms Sheppard to remain as parties, and Ms Shaw to be joined as a party, to the proceeding: cf, Act, s 84(5) and 84(9)(b) and Dimer at [41(a)], [41(e)], [43(b)].

1. The ILUA (an "area agreement") applied to the construction of a recreation facility and parklands within the claim area known as the "Cairns Esplanade Project": Act, Pt 2, Div 3, Subdiv C. The ILUA confers certain rights on the Yirrganydji people in relation to the project and contains an acknowledgement that they may be entitled to "compensation at law" if they obtain a native title determination. According to its terms, the ILUA will cease to have effect in the event there is a determination or an agreement that the Yirrganydji people do not hold native title over the site.
2. The State submits that the ILUA does not give rise to an interest that may be affected by a determination because the benefits it conferred - such as providing input into cultural and historical displays, proposing artwork and employment opportunities - all related to the construction phase of the Cairns Esplanade Project and does not create any present benefits. There is, however, no evidence before me that would enable a finding that those rights have come to an end. Given that, I am satisfied that the ILUA is an interest that may be affected by a determination in the proceeding: cf, Dimer at [41(e)] and [43(b)]. That is because its very continuation is dependent on Yirrganydji people being recognised in a determination under s 225 of the Act as holding native title rights and interests over the site of the Cairns Esplanade Project.

1. I am not satisfied that the interests of justice weigh in favour of Mrs Singleton and Ms Sheppard remaining as parties, and Ms Shaw being joined as a party, to this proceeding. That is for three reasons.
2. First, the only means by which the Yirrganydji parties could protect their interest under the ILUA would be to oppose a native title determination being made in favour of the Gimuy Walubara Yidinji people. There is no proper basis for the Yirrganydji parties to defensively rely on their asserted native title rights and interests to oppose a determination, because I am not satisfied those rights and interests have a factual foundation. No legitimate purpose would be served by permitting the Yirrganydji parties to solely rely on their interest under the ILUA as a basis to participate in the proceeding and resist a determination in light of the finding I have made about the claim to hold native title as outlined in the summary: cf, Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [37] (Mansfield J); Dimer at [41(f)] and [43(a)].
3. Second, if I am wrong and the Yirrganydji parties' asserted native title rights and interests do have a factual foundation, then their claim is untenable. That is because that claim is premised upon the Yirrganydji people holding native title rights and interests in the claim area immediately before the acquisition of sovereignty, which contradicts the findings made by the referees. It is not in the interests of justice to permit the Yirrganydji parties to defensively rely upon those claimed native title rights and interests to resist a determination in favour of the Applicant.
4. Third, and in any event, the participation of the Yirrganydji parties in the proceeding is inconsistent with the overarching purpose of the civil practice and procedure provisions contained in s 37M and s 37N of the Federal Court Act. The "dispute" at the heart of this proceeding is whether a determination of native title should be made in favour of the Gimuy Walubara Yidinji people. An aspect of that dispute was whether the Gimuy Walubara Yidinji people or the Yirrganydji people held native title rights and interests in the claim area immediately before the acquisition of sovereignty. The Gimuy Walubara Yidinji Applicant and the Yirrganydji Applicant (amongst others) engaged in a long and resource-intensive referee process supervised by the Court to resolve that aspect of the dispute. It has been resolved, in favour of the Gimuy Walubara Yidinji people.
5. It is to be expected that the Yirrganydji parties are disappointed by the outcome of the referee process insofar as it concerned the claim area. Nonetheless, that outcome is to be given effect. As such and given the findings I have made about the Yirrganydji parties asserted interests, it would be oppressive and prejudicial to the other parties and contrary to s 37M and s 37N of the Federal Court Act to permit Mrs Singleton and Ms Sheppard to remain, and Ms Shaw to be joined, as respondents, at the risk of further delay to the final resolution of the proceeding. The time has come to move on from the dispute about the group or groups that held native title in the claim area at sovereignty, to a resolution of what remains in issue in the proceeding, namely, continuity, connection and extinguishment: Act, s 223 and s 225; cf, Dimer at [41(g)] and [43(a)]. In the circumstances, it is not in the interests of justice that the Yirrganydji parties be permitted to participate in the proceeding and be given a say in the resolution of the issues which remain.

1. For all of the above reasons, it is appropriate to exercise the discretion under s 84 of the Act to remove Mrs Singleton and Ms Sheppard as parties, and refuse to join Ms Shaw as a party, to the proceeding. I will hear the parties as to costs.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Longbottom.

NORTH QUEENSLAND LAND COUNCIL ABORIGINAL CORPORATION

Schedule 21: Map of study area showing indicative internal boundaries