Findings on the joinder application
217 The evidence very clearly demonstrates that the joinder applicants have an interest, as Badulgal, in the shared native title claim. It is an interest which is affected, in their contention adversely, by the structure of the shared claim. I accept that position. I have also given weight to the State's position, which is to support the joinder application, for carefully articulated reasons.
218 The basis of the change resulting from the addition of the Mualgal and Kaurareg people as claimed native title holders can be ascertained by extracting the description in the amended form 1 under the heading "Association Between the Claim Group, their Ancestors and the Area Covered by the Application":
1. At the time of acquisition of sovereignty over the Torres Strait by the Crown ancestors of the applicant's claim group ancestors possessed the claim area.
2. At the time of acquisition of sovereignty ancestors of the claim group were associated with the claim area through their presence at and responsibilities for the claim area under traditional law and custom.
3. The applicants' claim group's rights and interests in the land making up the Claim Area were inherited from their ancestors in accordance with traditional laws (lore) and customs which continue, somewhat altered but uninterrupted, until the present time.
4. The applicants claim group continues to acknowledge traditional laws (lore), observe traditional laws (lore) and customs and exercise rights and interests in relation to the claim area that derive their source from the traditional laws (lore) and customs.
219 It is clear from the evidence of the joinder applicants that they dispute each of these propositions, as they are alleged to apply in the same way to the Mualgal and Kaurareg people as to Badulgal.
220 While the system of law and custom relied on in the proposed amended application (see the entries under the heading "Traditional Laws And Customs On Which Native Title Rights Are Based") is that recognised in Akiba (No 3), as the State contended in its submissions, the working out of what kinds of interests are held by various groups within the Torres Strait is not necessarily straightforward.
221 However, it is clear on the evidence that the joinder applicants are asserting the native title held over Warral and Ului is a substantively different native title to that for which the shared claim contends. The joinder applicants have provided ample evidence at this interlocutory stage to support that contention.
222 What may or may not have been said in previous consent determinations in the region is not, in my opinion, determinative, at least not at the stage of the Court considering joinder. No doubt the terms of those consent determinations may need to be weighed in the balance in any final determination by the Court about the nature and content of the native title held in these islands.
223 There were many examples in the affidavits provided by the joinder applicants of why Badulgal history and custom favoured the position they were putting forward. I set out a sample here, to illustrate the depth and breadth of the evidence given.
224 George Nona stated (at [32]-[33] and [48]-[49] of his first affidavit):
Me and my brothers used to dive around all these islands with my father, the late Morris Nona. He told me that Badu people used to live on these islands. He was born in 1924 and knew a lot of history and he planted some gardens on Warral (Hawkesbury Island) and Ului (West Island).
My father told me about how they used to work seasonally on pearl shell boats. He was a skipper, and when I asked him, "whose island is this?" he told me, "all these islands, there's a line here that goes right down all the way through between Moa and Badu, right down to the end of POW. The islands on the west of the line belongs to Badu, and on the other side, that belongs to the Aborigines (probably meaning the Kaurareg people)."
…
From my knowledge, we never gave permission to anyone to use Warral and Ului for anything. They knew Badu owned these islands before time. These 'new' people are saying we gave them permission when we didn't at all.
All our life we knew that Warral and Ului were occupied by Badulgal. Gardens were planted and kept. Turtle eggs gathered, camping, waterholes, fishing. All Badu families from Badu only would go there because it was already inside our borders.
225 After setting out the accounts he had been told by his elders about ownership and control of the islands south of Badu, including Warral and Ului, Tommy Tamwoy stated (at [26] of his first affidavit):
If the Mualgal and Kaurareg people have equal rights with Badulgal, then it will be like they get those rights without a battle, which is against customary law.
226 Ronnie Nomoa stated (at [18] of his first affidavit):
I do not wish to share our claim with the Mualgal and Kaurareg people because it means that I will disrespect what my grandfathers have told me about our ownership of Warral and Ului.
227 At [28]-[39] he explained what he had been told, and what he had seen and heard himself about which people under customary law own Warral and Ului:
Our grandfathers told us stories, but the main grandfather who told us stories is Simina Baira (sic). He told stories about the grandfathers, great-grandfathers, and maybe even further back in time. He said they took the foods from Badu to replant on the other small islands, because we had bandicoots and wild pigs here on Badu island.
By my grandfather's time (his name is Numa, known as Nomoa) he used to plant in Ului and other Badu families planted in Warral.
Athe Jackonia and his wife Aka Mary lived on the sandbeach on the southern end of Warral. When they lived there, they planted when they were young. When their first son was born, Tom Jackonia, they moved back to Badu for health reasons. If you stand on the beach where they lived and look outside into the blue (deep) water, you can see the stone 'Pitouli'.
The Kaurareg elders have always said that Pitouli is in the deep water, now the Kaurareg young generation says that Pitouli is on the beach.
Once, I asked Kevin Murphy (Anthropologist) if he thinks it's possible for a rock to move from the ocean to the reef? His response was that he didn't know.
When Athe Jackonia lived on the southern end of Warral, Athe Lama and Aka Manama, his wife, lived on the Sansuit Island. Buzi was their surname. They planted all the coconut trees there. On the northern end of Warral, some other families planted there, but this was before I was born.
The neighbouring island to Sansuit and Warral is Dadalai and it was occupied by Athe Sagi, known as Sagigi, and there is also a grave on the island where a Badu man named Jimmy Wakaid was buried.
Back in 1963, we were working together on the Pearl Lugger name 'Tilona' and the skipper was Benjamin Nona Snr. This was the crew: Benjamin Nona Snr. - Skipper; Whap Charlie; Phillip Wasaga; Ponky, known as Poung; Nagibu; Oza Bosen; Akitau and Alua Savage (two brothers); Souli Charlie (Whap Charlie's Son) (dec.); Passi Namai; Guru Phiniasa; Athe Tui Sapua Nomoa; Myself - Ronnie Nomoa; Bettie Andrew Warria; Waria Wigana and Maia Au - 15 of us altogether.
At that time we were working on the northside of Badu, on the Jervis Reef, and Phillip Wasaga and Whap Charlie told us and showed us (mainly us Badu People), that there is a line that runs between Badu Island and Moa Island to the point Bumpulaid, Prince Of Wales point, they call it Badukut, meaning "this is where Badu ends".
At the time when I travelled with Athe Israel Baira, I was still a young boy. When we went over the small islands, including Warral and Ului, we never saw people from Moa Island come to plant gardens there, it was just us, Badu People.
When the elders would plant and keep the gardens on the small islands, our warriors were always present and they knew they were safe and secure. While they worked, they knew they were safe, even when they couldn't see the warriors.
This is why I believe that as Badulgal, we are the only group that can claim ownership of Warral and Ului according to customary law.
228 George Nona's third affidavit also deals with these kinds of matters, and engages directly with Dr Murphy's anthropological report on connection, and the work of Mr Wood, none of which was before the Court. I have not taken account of the descriptions of those anthropological opinions given by George Nona. What I have taken into account is evidence such as the following (at [11] and [12] of that affidavit, with bracketed insertions in the original):
At paragraph 116, Kevin Murphy says that he did not want to intervene with an anthropological argument that might "endanger the agreement" [that was made in February 2015]. I think he has not sat and took Badulgal seriously in our story. It's like he's going against Badu in this case, and he is supposed to work for Badulgal.
Maybe this is not important to white people, but to us [Badulgal] the different versions are very important. Our history has always depended on the stories being accurate.
229 The Court makes no findings at all about contentions such as this, but these are the kinds of matters which, at the moment, strongly suggest a trial may be required. Subject to s 13(1)(b) of the Act (revocation and variation applications), a determination of native title is a final pronouncement of who holds native title for an area. It is good against the whole world. It is vitally important the Court makes the correct determination.
230 As the State submitted, the joinder applicants contend for the status quo which has prevailed for more than 17 years, where the native title claim is made only on behalf of Badulgal. The Badu applicant submits the Court should give weight to the fact the joinder applicants only came forward now after more than 17 years. I reject that submission. The existing Badu claim over Warral and Ului reflects the joinder applicants' understanding of customary law; they had no reason to object to anything until earlier this year when the authorisation meetings were held so as to change that position. I consider they have acted promptly, and properly. That is a further reason that it is in the interests of the administration of justice for them to be joined. While the claim over Warral and Ului has sat effectively idle for a long time, that is not the fault of the Badu claim group, or the joinder applicants. When a step was taken likely to affect their interests adversely, they acted: that is what the Court expects and they are to be commended, with Ms Bowie, for the way they have developed their application.
231 The State submitted at [67]:
In the State's submission, it is tolerably clear that the Joinder Applicants assert that the relevant claim area is subject to native title held by Badulgal only, with the other groups having, at best, some kind of personal rights under traditional law and custom within the second or third category of "sharing" identified by Finn J in Akiba Part A. The State apprehends this to be consistent with the references in the Joinder Applicants' submissions to Badulgal as "the underlying native title owners of Warral and Ului according to customary law" (at [15], [128]), and to "Badu's underlying ownership of native title" (at [21]).
232 I accept this is a possible characterisation of the joinder applicants' position. It is certainly sufficient to order joinder. Time will tell whether this is how it is ultimately put.
233 In the reply submissions made by the joinder applicants there was a point I found particularly persuasive. At [41(e)], Ms Bowie on their behalf said:
Post determination, the Applicant's lawyers and the anthropologist will not be there to defend the conduct of the group who (according to the interlocutory application for amendment) "decided for everyone" at the 1 February meeting, but the Joinder Applicants will be.
234 This submission emphasises who it is that must live with the long-term consequences of a native title claim, especially one which is settled by compromise. Where there are genuine and substantive issues raised about who holds native title, it is a matter to which considerable weight should be given in the Court's determination of the appropriate process for a claim.
235 It is important to emphasise that the Court's findings on joinder, and the observations made, are made only in the context of its view that it is appropriate for the five individuals to become parties to the proceeding as respondents. No view at all is expressed about the ultimate issue in the proceeding; namely, who holds native title over Warral and Ului.