Pegler on behalf of the Widi People of the Nebo Estate #1 v State of Queensland

1. The interlocutory application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 The principal proceeding is an application for a determination of native title over an area encompassing Nebo to the southwest of Mackay in central Queensland. 2 The interlocutory application presently before the Court is by Vassa Iris Hunter for joinder as a party to the proceeding. 3 Ms Hunter asserts that she is a member of the claim group through her great-grandmother, Mary of the Widi Tribe. Mary was originally named in the application as an apical ancestor of the claim group, but the application was amended in 2013 to remove her name. 4 The applicant and the State of Queensland oppose Ms Hunter's application. They submit that the evidence is inconsistent with Mary having held native title interests in the claim area. They also submit that it would not be in the interests of justice to allow the joinder. 5 It is necessary to consider the history of the proceeding. The claim was commenced in 2006. On 16 July 2013, a meeting was held at which the claim group resolved to amend its description by removing the names of several apical ancestors including Mary. It was also resolved to change the title of the proceeding to its present name. 6 On 5 June 2013, Collier J granted leave to the applicant to make the amendments authorised by the claim group: Butterworth on behalf of the Wiri Core Country Claim v State of Queensland (No 2) [2014] FCA 590. As a result, Ms Hunter ceased to be a member of the claim group. 7 Ms Hunter then applied for joinder as a party to the proceeding. That application was refused on 28 August 2014 by Collier J: Pegler on behalf of the Widi People of the Nebo Estate #1 v State of Queensland [2014] FCA 932. Her Honour considered that Ms Hunter's evidence should be understood as referrable to her membership of a broader Wierdi/Widi cultural and/or language group over a large area of central Queensland. However, that broad affinity did not give Ms Hunter a sufficient interest in the claim area. Justice Collier also relied upon the evidence of anthropologists Daniel Leo and Ray Woods who agreed that Mary was traditionally affiliated with the Clermont district (to the southwest of Nebo), and not the Nebo district. They considered that Mary was part of the wider language identity, but not part of the particular landholding group now known as the Widi of Nebo Estate. Her Honour noted that Dr Alison Pembroke, another anthropologist, had initially arrived at a preliminary opinion that Mary had traditional connections with areas including Nebo, but that she now concurred with Dr Leo that Mary was not an apical ancestor of the claim group. Justice Collier was not satisfied that Ms Hunter had demonstrated a prima facie case that she had an interest warranting her joinder to the proceeding. Her Honour was also not persuaded that it was in the interests of justice to allow the joinder, as it would reopen matters determined by the claim group and resolved by the previous orders of the Court and prejudice the conduct of the proceeding. Accordingly, her Honour dismissed the application for joinder. 8 Ms Hunter's present application relies substantially upon the same evidence as she placed before Collier J, but also relies upon some additional material. 9 Section 84(5) of the Native Title Act 1993 (Cth) provides: Joining parties (5) The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings and it is in the interests of justice to do so. 10 In an application for joinder under s 84(5), it is necessary to consider: (1) whether the applicant for joinder has an interest; (2) whether that interest may be affected by a determination in the proceedings; and (3) whether it is in the interests of justice for the applicant to be joined as a party. 11 It is necessary for an applicant for joinder to demonstrate a prima facie case that he or she has interests that may be affected by a determination: Wakka Wakka People # 2 v State of Queensland [2005] FCA 1578 at [6]; Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [8]. 12 The interests of persons who claim to hold native title rights and interests in relation to the land or orders the subject of the proceeding may be sufficient interests: Munn v State of Queensland [2002] FCA 486 at [8]; Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 at [22], [24]-[25]; Worimi Local Aboriginal Land Council v Minister for Lands for New South Wales (2007) 164 FCR 181; at [10]; Holborow v State of Western Australia [2009] FCA 1200 at [4]; Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [10]; A.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 2) [2013] FCA 1000 at [53]; Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369 at [21]. 13 I consider that Ms Hunter has not demonstrated a prima facie case that she is a member of the claim group for the present claim. Ms Hunter relies upon Tindale's Cherbourg Sheet #9, but that document identifies Mary as being "of Clermont". Ms Hunter also relies upon the field notes of Caroline Tennant-Kelly which show that Ms Hunter's ancestor Abraham Johnson was the informant in relation to the Wierdi [Wiri/Widi] language and social organisation. However, those field notes also record Mr Johnson as being associated with the Clermont district. 14 Ms Hunter relies upon evidence that she asserts shows recognition by others that her family is Wiri/Widi. This evidence includes the affidavits of Frank Fisher and Linda Wailu. However, I am not satisfied that this evidence, which is somewhat vague and uncertain, assists to demonstrate a prima facie case that Ms Hunter is a member of the claim group. 15 There is evidence, particularly from Mr Leo, that Wiri is a language associated with a very wide area including with Clermont, Nebo and Mackay districts, and that there are four "separate estates". The evidence adduced by Ms Hunter demonstrates that she is a Wiri person, but it does not demonstrate on a prima facie basis that she is a member of the claim group as described in the present claim. The evidence tends to demonstrate that Ms Hunter's ancestors had an association with the Clermont district. The anthropological evidence is clear that Ms Hunter does not have native title rights and interests in the Nebo area. I find that Ms Hunter has not demonstrated that she has an interest sufficient to allow her to be joined as a party to the proceeding. 16 Further, it would not be in the interests of justice to allow Ms Hunter to be joined. The relevant factors include her delay, her explanation for the delay and prejudice to the existing parties as a result of the delay. 17 Ms Hunter's previous application for joinder was rejected in 2014. She has not provided any satisfactory explanation for why it has taken until now to make her further application. The claim has proceeded substantially in the meantime to the point where a consent determination is listed for 31 July 2019. It would derail the consent determination and cause substantial prejudice to the existing parties if Ms Hunter were to be joined. 18 For these reasons, Ms Hunter's application for joinder as a party to the proceeding must be dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.