FEDERAL COURT OF AUSTRALIA

Murray on behalf of the Yilka Native Title Claimants v State of Western Australia [2010] FCA 595

THE COURT ORDERS THAT:

1.         Within 28 days the parties who have previously made submissions on the motion are to file a consent minute reflecting these reasons, alternatively, submissions not exceeding 2 pages, if consent is not possible.

2.         If consent orders can not be agreed, orders will be made on the papers. 

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                          In this application, various parties have given a notice indicating they wish to become parties to the proceeding.  While such a procedure is not unusual, the applicant contends that the notices are deficient in a number of respects and should not be accepted.  Particular attention has been focussed in argument on amendments to the relevant provisions effected in 2006 and 2007.  In light of the conclusion reached, it is necessary only to consider the 2006 amendment. 

2                          The persons referred to in [3] (the Form 5 applicants) have each sought to become a party to the proceedings by giving a prescribed notice to the Court. 

3                          The applicant has moved for orders that each of the following persons is not a party to the main application:

Michael Tucker, Pearlie Wells, Fabian Tucker, Lynnette Graham (nee Blowes), Bessie Dimer, Daisy Doolkie Rundle, Alison Tucker (nee Barnes), Kathy Tucker (nee Barnes), Corina Bennell, Lisa Bennell, Jarred Dimer, Brett Dimer, Hilda Dimer, Aaron Dimer, Shondelle Dimer/Garlett, Ron Harrington-Smith, Laurel Cooper, Lorraine Griffiths, Daniel Tucker, Quinton Tucker, Shaun Dimer and Matthew Bennell.

BACKGROUND

4                          The proceeding was commenced by filing of an application on 15 December 2008.  The area covered by the claim was previously the subject of the claim Harvey Murray v State of Western Australia and Others(WAD 144 of 1988) described as the Cosmo Claim.  The Cosmo Claim was heard and dismissed by Lindgren J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1 (Wongatha).

5                          A brief chronology of events to date in this application is as follows:

·          On 15 December 2008, the Yilka Claim was filed pursuant to s 61 of the Native Title Act 1993 (Cth) (NTA);

·          On 2 June 2009, orders were made regarding mediation;

·          On 6 August 2009, the Yilka Claim was accepted for registration by the National Native Title Tribunal (the Tribunal) pursuant to s 190A NTA;

·          9 September 2009 was the notification date pursuant to s 66(8) NTA;

·          On 7 October 2009, District Registrar Jan ordered that each of the Shire of Laverton, Cosmo Newberry Aboriginal Corporation, Central Dessert Native Title Services Limited and Eleckra Mines Limited be joined as a party to the application pursuant to s 84(3) NTA;

·          On 24 November 2009, a Form 5 notice pursuant to s 84(3) NTA was received from Mr Michael Tucker;

·          On 2 December 2009, the matter was referred to mediation by the Tribunal on expiry of the notification period;

·          On 4 December 2009, pursuant to s 84(3) NTA, Form 5 notices were received from Pearlie Wells, Fabian Tucker, Lynnette Graham (nee Blowes), Bessie Dimer, Daisy Doolkie Rundle, Alison Tucker (nee Barnes) and Kathy Tucker (nee Barnes);

·          On 7 December 2009, Form 5 notices were received from other prospective applicants;

·          On 8 December 2009, Form 5 notices were received from the remaining prospective applicants;

·          On 8 December 2009, the notification period pursuant to s 66(10)(c) NTA ended;

·          On 10 December 2009, an affidavit of Michael David Tucker was filed and served.

STATUTORY FRAMEWORK

6                          For the purposes of this motion, the Form 5 notices fall for consideration pursuant to s 84(3) NTA.

7                          Section 84 NTA relevantly provides as follows:

84        Parties

Coverage of section

(1)        This section applies to proceedings in relation to applications to which section 61 applies.

Applicant

(2)        The applicant is a party to the proceedings.

Affected persons

(3)        Another person is a party to the proceedings if:

(a)        any of the following applies:

(i)         the person is covered by any of subparagraphs 66(3)(a)(i) to (vi);

(ii)        the person claims to hold native title in relation to land or waters in the area covered by the application;

(iii)       the person’s interest, in relation to land or waters, may be affected by a determination in the proceedings; and

(b)        the person notifies the Federal Court, in writing, that the person wants to be a party to the proceeding:

(i)         within the period specified in the notice under section 66; or

(ii)        if notice of an amended application is given under paragraph 66A(1A)(e)—within the period specified in the notice under that paragraph.

….

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.

…

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.  (emphasis added)

8                          The words ‘in relation to land or waters’ where they appear in s 84(3)(a)(iii) NTA were added by the Native Title Amendment Act 2007 (Cth). 

9                          As suggested in the Explanatory Memorandum to the Native Title Amendment Bill 2006, paras 4.123-4.130, the intent of the amendment was to limit the categories of persons who may become a party to the proceeding.  In the Explanatory Memorandum, in those paragraphs, relevantly, the following appeared:

…

Item 4 – Subparagraph 84(3)(a)(iii)

4.127    Existing subparagraph 84(3)(a)(iii) allows anyone who has an interest that may be affected by a determination in the proceedings to become a party to proceedings, provided they notify the Court in writing within the relevant  notification period that they want to be a party to the proceedings. The amendment will provide that to become a party as of right under subparagraph 84(3)(a)(iii) a person will be required to have an interest in relation to land or waters that may be affected by a determination in the proceedings. The phrase ‘interest in relation to land or waters’ is defined in section 253. Case law indicates an ‘interest in relation to land or waters’ is narrower than an ‘interest’. While the definition of an interest in relation to land or waters is still very broad, it does exclude some persons who may otherwise be found to have an interest that may be affected under the existing provisions, such as persons who only have rights of access held by all members of the public.  (emphasis added)

10                        By reg 6 of the Native Title (Federal Court) Regulations 1998 the form of Notice of Intention to Become a Party for the purpose of s 84(3)(b) NTA is to be in accordance with Form 5.  Form 5 in turn requires the person giving the notice to state in that notice the basis on which the person wants to become a party.  The Form includes provision for the following:

1.         Give notice under paragraph 84(3)(b) of the Act that I [or we] want to be a party in relation to the application under section 61 of the Act made by [name of the applicant] because:

[state in what way a determination in relation to the application may affect the interests of the person(s) giving notice].

11                        The particular form used by each of the Form 5 applicants also contains this guidance note, or a variation of it:

Describe the nature of your interest/s and the manner in which it/they may be affected by a Native Title Determination.

Documentary evidence should be supplied.  For example, if you hold a lease or licence in respect of the claim area please attach to this form a copy or photocopy of that lease or licence.  Identify the type of interest and its location in the claim area. 

12                        The provisions of the NTA make it clear that a person is a party to a proceeding by operation of s 84(3) if the person notifies the Federal Court in the manner prescribed by s 84(3)(b) and also the notice itself identifies the person as someone to whom any of the paragraphs of s 84(3)(a) apply. 

13                        Cases dealing with joinder of a party by the Court under s 84(5) NTA, while being decided before the 2006 and 2007 amendments illustrate the approach a court would take to joinder under that provision, albeit that the automatic provisions sought to be invoked under the lodgement of a Form 5 do not usually required such considerations to be specifically addressed. 

14                        In relation to the joinder of parties by the Court under s 84(5) NTA, again, the words (‘and it is in the interests of justice to do so’) were added by way of the Native Title Amendment Act 2007 (Cth).  As observed by French J prior to those amendments in Akiba and Others on behalf of the Torres Strait Regional Seas Claim People v Queensland (No 2) (2006) 154 FCR 513(at [32]):

The Court has a discretion to join a person as a party to a native title determination application if the Court is satisfied that "the person's interests may be affected by a determination in the proceedings". There are therefore three elements to be considered in a decision under s 84(5) of the NTA:

1.         Whether the person has an interest.

2.         Whether the interest may be affected by a determination in the proceedings.

3.         Whether, in any event, in the exercise of its discretion the Court should join the person as a party.

15                        In Byron Environment Centre Incorporated v Arakwal People and Others (1997) 78 FCR 1 (at 7-8), Black CJ said:

The nature and content of the right to become a party to proceedings for the determination of native title, with the power as a party in effect to veto the process of mediation and conciliation which the Act favours, suggests that the interests with which s 68(2)(a) and the related sections dealing with parties are concerned are interests that are not indirect, remote or lacking substance. The nature and content of the right also suggests that the interests must be capable of clear definition and, equally importantly, that they are of such a character that they may be affected in a demonstrable way by a determination in relation to the application.

There is, however, no reason to conclude from the subject matter, scope and purpose of the Act that the interests need be proprietary or even legal or equitable in nature. While the interests must be genuine and not indirect, remote or lacking substance, there is no indication that, for example, a person who has a special, well-established non-proprietary connection with land or waters which is of significance to that person is not to be regarded as having interests that may be affected by a determination.

16                        In an appropriate case, a person who is a member of the native title claim group may be joined under s 84(5) NTA.  In relation to the discretion to be exercised under s 84(5), Mansfield J noted in Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 (at [26]):

The power in s 84(5) is discretionary. It can be exercised to prevent a flood of individuals, as members of a communal group who claim to have native title rights and interests over all or part of a claim area and whose rights and interests may be affected by a determination, from becoming parties. In circumstances where there are a number of such individuals, it would not necessarily be the first such individual who would be the appropriate party. It will often be a matter for evidence as to whether any one individual has either a particular status or a particular perspective or particular circumstances which warrant that person's joinder as a party, including that person's status within the putative or competing claim group. It may be relevant to know the extent to which that person or persons has the support of, or is entitled to represent, the interests of the putative or competing claim group. No hard and fast rules can be laid down.

17                        In Kokatha, Mansfield J in exercise of his discretion determined that rather than all of the Form 5 applicants being joined, their interests would be adequately protected by the joinder of just one of them.  Similarly, the applicant submits in the present instance that if, contrary to its primary submission, the Form 5 applicants are to be parties at all, then as it is clear that they fall into one or more groups, they could be adequately represented other than by all of them as individual parties. 

18                        The authorities referred to predate the additional words ‘and it is in the interests of justice to do so’.  It may be accepted that those additional words were intended to enlarge the discretion the Court has to limit the number of persons who might become parties after the notification dated (see the Explanatory Memorandum at [4.123] and [4.130] to the Native Title Amendment Bill 2006).

19                        The applicant contends that if, contrary to its primary submission, each or any of the Form 5 applicants is a party by operation of s 84(3) NTA, they should be dismissed from the proceeding at this point in accordance with s 84(8) and 84(9) NTA.  This was the approach taken by Dowsett J in Combined Mandingalbay Yidinji - Gunggandji Claim v Queensland [2002] FCA 730in circumstances where persons who had given Form 5 notices that relied on s 84(3)(a)(i) or (iii) rather than (ii) included various recreational uses of land within the claim, a corporate lapidary club, a nearby rural property holder and such like.  (His Honour noted (at [1]-[2]) that even though some of the persons whose position was considered by his Honour did not appear at the hearing, he nevertheless ruled (at [23]) that their claim was not maintainable and ordered that they be dismissed as parties dealing with the matter in the following way (at [22] and [25]):

22        That leaves for consideration only those joining parties who have not appeared other than Mr G J Wienert.  Because of the unfortunate way in which these proceedings were brought on, I have wavered somewhat in my view as to how I should deal with them.  In the end I have decided to consider their claims on the papers to determine whether or not they demonstrate appropriate interests. 

…

25        I give to all parties who have been dismissed from the proceedings, leave to apply to be joined should they be so advised.  I do this in case they may have misunderstood the nature of these proceedings as a result of the error to which I have referred.  I am anxious to avoid any possibility of prejudice as a result of it.  As to the recreational users and other persons with similar claims, all of whom I have allowed to remain as parties, I will adjourn proceedings to see if it is possible to arrange their representation in the proceedings in such a way as to avoid undue cost and delay.  All parties will have liberty to apply.

THE COMPLAINTS AS TO THE CONTENT OF THE FORM 5 NOTICES

20                        The applicant’s primary submission is that Form 5 notices do not trigger the operation of s 84(3) NTA as

·          none of them discloses that the person giving the notice is a person to whom either s 84(3)(a)(ii) or (iii) applies

·          a notice given within time but which fails to identify a person falling within either of those categories cannot be remedied by amendment of the notice or the provision of further material out of time. 

21                        The crux of the matter is that except for Ron Harrington-Smith, Laurel Cooper and Lorraine Griffiths none of the Form 5 applicants even includes the term native title or any equivalent term in their Form 5 notice.  A claim to hold native title is essential to trigger the operation of s 84(3)(a)(ii) NTA.  Nor do any of the Form 5 notices assert any other kind of interest in relation to land or waters that may be affected by a determination in the proceeding for the purpose of subs (3). 

22                        Notwithstanding their want of proper form, the applicant does not argue that it is inappropriate to regard the Form 5 notices as applications under s 84(5) NTA.  The notice and additional material may be considered under s 84(5) NTA, it being at least doubtful that time to meet the requirements of s 84(3) can be extended (Munn v Queensland [2002] FCA 78 (at [11] per Emmett J). 

23                        However, once again, the applicant submits that if s 84(5) is considered, the application of that subsection to the material contained in the notices can be of no assistance to the Form 5 applicants because if the notices are not sufficient to trigger s 84(3) NTA, they cannot be sufficient to enable the Court to be satisfied that the person is a person who has an interest that may be affected by a determination.  This is a foundational requirement of s 84(5) NTA.  The applicant argues the Form 5 notices contain no material that goes to the additional element of s 84(5), that is, whether it is in the interests of justice to join the respective Form 5 applicants.

24                        In relation to the individual persons concerned, the following material has been provided in each instance. 

Mr Michael Tucker

25                        In relation to Mr Michael Tucker, the applicant makes the following submissions.  In his Form 5, Mr Tucker states the basis upon which he wants to become a party is as follows:

I Michael Tucker have a strong ancestral connection to country.  Am a fifth generation Wongatha to the area and have knowledge and understanding (eg) rockholes, pathways

26                        In the Form 5, Mr Tucker relies only upon his own assertion of a ‘strong ancestral connection’ to ‘country’ but does not identify any place or area as being the subject of that connection.  Nor does he identify any member of the ancestry he refers to.  Mr Tucker does not claim to be a member of any group or society or claim to acknowledge traditional laws or observe traditional customs.  He describes himself as a ‘fifth generation Wongatha to the area’ without indicating what he means by ‘Wongatha’ in that context and without identifying the ‘area’ he refers to.  He claims to have ‘knowledge and understanding’ of matters which, again, are unspecified except by giving as an example ‘rockholes, pathways’.  The nature, extent and source of his asserted knowledge is not identified in any way. 

27                        Absent a claim to hold native title, Mr Tucker’s Form 5 notice does not identify any other kind of interest in relation to land or waters that may be affected by a determination of the Yilka claim.  Thus, the applicant argues, he cannot rely on s 84(3)(a)(iii) NTA.  Similarly, the Form 5 notice does not contain material that would permit the Court to join him as a party under s 84(5) NTA. 

M/s Pearlie Wells

28                        In her Form 5, M/s Pearlie Wells states the basis on which she wants to become a party is as follows:

I have strong identity and ancestral connection to this country through my mother Cissy Nardin McIntyre and Apical Ancestor Biyuwarra and Wunu

29                        The applicant notes that she makes a bare assertion of a ‘strong identity and ancestral connection to this country’ but does not say what she means by ‘strong identity’ or link it to ‘native title’ in a way that might have satisfied s 84(3)(a)(ii) NTA.  She does not identify ‘ancestral connection’ as a matter giving rise to traditional rights and interests in the claim area.  It is not possible to construe these statements as a claim to hold native title.  Such things may be elements of native title but are insufficient to be construed as a ‘claim to hold native title’.  She does not claim to hold any interest of any other kind that may be affected by a determination in the proceeding.  Thus, the applicant submits, s 84(3)(a)(iii) NTA does not apply.  Similarly, the Form 5 does not contain material that would permit the Court to join her as a party under s 84(5) NTA.

30                        The applicant contends that if, contrary to submissions, she is a party by operation of s 84(3) NTA, M/s Wells should be dismissed from the proceeding under s 84(8) NTA on the following basis.  She gave evidence before Lindgren J in the Wongatha group of proceedings.  Her evidence is summarised by Lindgren J in Wongatha at [6898]-[6962].  Nowhere in that summary is a reference to a claim to country through her mother; whereas her Form 5 notice asserts a connection through her mother.  In Wongatha she is said to have identified her mother as ‘Cissy’ Lane, who before her marriage to M/s Wells’ father was known as Nadine Barnes.  She did not say where her mother was ‘from’; only that in 1966 her mother lived in Kalgoorlie and that she was buried in Leonora.  She did not identify her mother as a descendent of Biyuwarra and Wunu.  In contrast, she identified her father’s parents and said that her father was ‘from Burtville’. 

31                        As to her ngurra, Lindgren J summarised her evidence as follows:

The word ngurra is a camping place.  [T6035] My Ngurra is Mt Margaret Mission because Dad built the house there and made a home for us there.  The places where we camped with my father, the ones I have mentioned, are also part of my ngurra.  [T6035] Camping places around Just in Time, Ti-tree and Claypan are part of my ngurra.  [t6036] They are between Mt Margaret and Mt Weld.  [T6036]

32                        The applicant continues to assert that these places are not on or close to the Yilka claim area.  Lindgren J did not record her as having given evidence of association with the Yilka claim area.  The applicant argues that she has never had an interest that may be affected by a determination in the proceeding and order that she cease to be a party to the proceeding. 

Mr Fabian Tucker

33                        In relation to Fabian Tucker’s Form 5, Mr Tucker states the basis on which he wants to become a party is as follows:

I wish to be a party to the claim based on my connection of my ancestors and my personal connection to the land.

34                        The applicant complains that this notice is clearly inadequate to trigger the application of s 84(3) NTA in favour of Mr Tucker.  It includes no claim of native title or an interest in relation to land or waters that may be affected.  ‘Connection’ of a certain kind may be relevant, but insufficient, to ground or constitute a claim to hold native title.  Thus the conditions of s 84(3)(a)(ii) NTA are not met.  No other kind of interest is asserted which may have separately attracted the operation of s 84(3)(a)(iii) NTA.  Similarly, the Form 5 does not contain material that would permit the Court to join him as a party under s 84(5) NTA.

35                        If it were necessary to consider whether he should cease to be a party, the applicant says he should.  There is no basis on which it could be concluded that he ever had an interest that may be affected by a determination in the proceeding. 

M/s Lynette Graham

36                        M/s Lynette Graham’s Form 5 states the basis on which she wants to become a party as follows:

Stronge (sic-strong) and connection to this country concerning my family through my mother Rhoda and apical ancestors Biyuwara and Wunu.

37                        Once again the applicant argues that this notice does not contain a claim, or anything that could be construed as a claim, to hold native title.  A vague and unsubstantiated assertion of ‘connection’ cannot be read as a claim to hold native title so as to trigger s 84(3)(a)(ii) NTA.  The notice does not contain an assertion of any other kind of interest in relation to the land or water that may independently trigger s 84(3)(a)(iii) NTA.  Similarly, the Form 5 does not contain material that would permit the Court to join her as a party under s 84(5) NTA.  She should cease to be a party under s 84(8) NTA if it were necessary to consider this approach.  There is no basis upon which it could be concluded that M/s Graham ever had an interest that may be affected by a determination in the proceeding. 

M/s Kathy Tucker

38                        In M/s Kathy Tucker’s Form 5, M/s Tucker states the basis on which she wants to become a party is as follows:

Strong rightful connection, our ancestral Traditional historical and genealogical connection with = Biyuwara (dec), Wunu (dec), Yugoodoomar (dec), Cookadoo (dec), Snowy Barnes (dec), Sissy Nardin McIntyre (dec), Bella Elyon Harris (dec).  Darn Danny harris (sic-Harris) is a spokesman for our area and he can speak on our behalf.

39                        The applicant makes the same complaints. 

Mr Daniel Tucker

40                        Mr Daniel Tucker’s Form 5 states the basis on which he wants to become a party is as follows:

I have strong ancestral connection to this country through my Grandfather Sydney (Snowy) Barnes and his mother, my great grandmother Biyuwara’s side.

41                        The applicant makes the same complaints. 

M/s Corina Bennell, M/s Lisa Bennell, Mr Jarred Dimer, Mr Brett Dimer, M/s Hilda Dimer, Mr Aaron Dimer, M/s Shondelle Dimer/Garlett, Mr Shaun Dimer and Mr Matthew Bennell

42                        In relation to these Form 5 applicants, each of these Form 5 applicants state the basis on which they want to become a party to an attachment (in identical terms) as follows:

Strong rightful connection to this land.  Out (sic-Our) ancestral traditional historical and genealogical connection with Biyuwara (dec), Wunu (dec), Yugoodamar (dec), Cookadoo (dec), King Jidu (dec).  Danny Harris our spokesman to this land. 

43                        Mr Matthew Bennell’s Form 5 notice differs only insofar as he also states:

As per Attachment “A” strong rightful connection to this land Our ancestral traditional historical & genealogical connection with Biyuwara, Wunu, Yugoodamar, Cookadoo, King Jidu + all dec.  “Darn Danny Harris is our spokesman”. 

44                        The applicant makes the same complaints. 

M/s Alison Tucker

45                        M/s Alison Tucker’s Form 5 notice relies on the following:

My ancestral line is from my apical ancestor Biyuwara (dec), Wunu (dec), and Alice Barnes (dec Yugoodamar), Jimmy Cookadoo Barnes, Sydney Snowy Barnes, Cissy Nardin McIntyre, Bella Elyon Harris (dec).

46                        The applicant contends this statement is in the nature of assertions of genealogical data and cannot be construed as a claim to hold native title or the assertion if an interest in relation to land or waters that may be affected by a determination.  Her Form 5 notice has not made her a party under either s 84(3)(a)(ii) or (iii) NTA.  Similarly, the notice does not contain material that would permit the Court to join her as a party under s 84(5) NTA.

47                        If it were necessary to consider whether M/s Tucker should be dismissed from the proceeding under s 84(8) NTA, the applicant argues the answer would be affirmative and clearly so, as no basis is disclosed upon which it could be concluded that she has ever had an interest that may be affected by a determination in the proceeding. 

Mr Quinton Tucker

48                        Mr Quinton Tucker does not identify the basis on which he wants to become a party. 

49                        The applicant makes the same complaints. 

Mr Ron Harrington-Smith, M/s Laurel Cooper and M/s Lorraine Griffiths

50                        Mr Ron Harrington-Smith’s Form 5 states the basis on which he wants to become a party is as follows:

My family has physical and spiritual connection to the area the subject of this claim.  Throughout history my family descendents have travelled through the area and lived on the area in the traditional way my Mother and Father have both lived on the land from time to time.  My Brother was born on the land the subject of this claim.  I have registered native title right and interest in the land.

51                        In relation to their Form 5 notices, M/s Laurel Cooper and M/s Lorraine Griffiths state the basis on which they each want to become a party are in terms identical to those of Mr Harrington-Smith save for the reference to his brother.  They state their bases as follows:

My family has physical and spiritual connection to the area the subject of this claim.  Throughout history my family descendents have travelled through the area and I lived on the area in the traditional way my Mother and Father have both lived on the land from time to time.  I have registered native title right and interest in the land.

52                        The notices of these three persons include the assertion ‘I have registered native title right and interest in the land’. 

53                        The applicant contends that the assertion is unsubstantiated in each case and, in any event, is unclear.  It is not clear what ‘registered’ is intended to mean.  The assertion cannot be true in at least two senses of the word ‘registered’.  If it means native title that is entered on the National Native Title Register after a determination of native title, it is not true.  There has been no determination of native title over the claim area or any area that was the subject of the Wongatha decision.  If it is intended to be a reference to being a registered native title claimant or applicant in a native title claim, it is not true.  None of these persons was a registered claimant or applicant in the Cosmo claim and none of the other claims covered by the Wongatha decision remain on foot in any sense.  If ‘registered’ is intended as a verb rather than an adjective, it is not clear with whom the native title right and interest is said to be ‘registered’ or whatever else the notion might entail. 

54                        Therefore, the applicant submits, that the reference by these three persons to ‘registered’ native title rights and interest in the land’ does not go to satisfying s 84(3)(a)(ii) NTA as it is demonstrably untrue in any formal sense and unclear and unsubstantiated in any other sense. 

55                        As is the case in relation to the other Form 5 applicants, the other assertions in the Form 5 notices of ‘connection’ do not assist their cause. The references to persons having travelled through and lived on the area are vague and unsubstantiated.  The applicant argues that none of these assertions considered separately, nor all of them considered together, comprise, or can be construed as, a claim to hold native title.  They are insufficient to trigger s 84(3)(a)(ii) NTA. 

56                        The notices do not contain an assertion of any other kind of interest in relation to land or water that may independently trigger s 84(3)(a)(iii) NTA.  Similarly, the notices do not contain material that would permit the Court to join them as parties under s 84(5) NTA.

57                        If contrary to that submission the references in the notices to ‘native title’ are held to be sufficient to ground the application of s 84(3)(a)(ii) NTA, then the lack of truth or clarity in and any substantiation of the references to ‘registered native title right and interest’ provides immediate grounds for dismissal as a party under s 84(8) NTA.

58                        Further reasons for dismissal were submitted by the applicant to be as follows.  Mr Harrington-Smith was a named applicant in the Wongatha claim and gave evidence before Lindgren J.  In Wongatha at [1853]-[1948] his Honour summarised Mr Harington-Smith’s evidence.  At [1912]-[1913], he records that Mr Harrington-Smith gave the evidence that his mother was from the Jamieson area and that his father’s country is the Baker Lake area.  These areas, the applicant points out, are both well to the east to the Yilka claim area. 

59                        At [1915]-[1917], his Honour summarised Mr Harrington-Smith’s evidence about his own country as follows:

1915     My ngurrara comprises only the places where I was born and where I roamed with my parents before entering the Mission. [T2609-12]  My ‘country’ and my ‘ngurrara’ are the same thing. [T2612]  My ngurrara is the area where I was reared and taught Aboriginal culture about how to survive and sustain myself from the land. [T2809]  That area was from White Cliffs down to Murrin Murrin to Redcastle, to Yundamindra, to Linden and back to Burtville then back through the backblocks to White Cliffs again. [T2809]  The southernmost part of that area would be a line from Kookynie to Linden.  The northernmost part would be in the White Cliffs area.  The most easterly part would be a line from Burtville to White Cliffs.  The westernmost point would be Malcolm. [T2448, T2461] 

1916     My ngurrara includes the place where I was born and the place where I roamed as a child.  Therefore the whole of Mt Weld Station is part of it. [T2633]  I accept that that Station is 120 km by 40 km and say that the whole of it is part of my ngurrara because I was born on it.  I also roamed there with my mother and relatives. [T2635]

1917     I accept that I told the anthropologist that my country was where I was born and where I roamed, which was from Cosmo, Laverton, Burtville, Linden, Kalgoorlie, back to Murrin, but I would now exclude Kalgoorlie and Cosmo. [T2612-3]  [I cannot think why I mentioned Kalgoorlie. [T2614-5]  I only visited Kalgoorlie and Menzies.  ‘Sure we lived off the land on visitation as well, being involved with the kurangarra, and I’d still maintain that look, that [White Cliffs down to Murrin Murrin, to Redcastle, to Yundamindra, down to Linden and back to Burtville and back through the backblocks to White Cliffs again] is ‘the area that I can recall that I had traditional ties to when I was a kid.’ [T2809] ]

60                        The applicant identifies that Mr Harrington-Smith clearly dissociated himself from the Cosmo area before Lindgren J.  It is clear enough that he could not substantiate a claim to hold native title in the Yilka claim area.  Thus, even if, contrary to the applicant’s submission, Mr Harrington-Smith is held to be a party by operation of s 84(3) NTA, he should be dismissed as a party under s 84(8) NTA on his own evidence as never having had a relevant interest.

61                        Similarly, neither M/s Griffiths nor M/s Cooper are recorded by Lindgren J as having made a claim either formally or in their evidence to hold native title in the Cosmo claim area.  No basis is disclosed upon which it could be concluded that they ever had an interest that may be affected by a determination in the proceeding. 

M/s Bessie Dimer and M/s Daisy Doolkie Rundle

62                        Both these persons are claimants.  They are sisters.  They are members of the Yilka native title claim group on the basis of them being the daughters of listed apical, Billy/Kurlu’s daughter, Walkila/Wayila.  On that basis it is accepted that they in fact hold native title in the claim area and have interests that may be affected by a determination.  If considered as applications for joinder under s 84(5) NTA, these Form 5 notices together with the acceptance of their membership of native title claim group the factual basis for joinder may be made out.  However, the applicant contends that in the exercise of the Court’s discretion, joinder ought be refused because there is no material before the Court that indicates any need for them to be joined separately as respondents.  For example, it is not suggested that they did not authorise the Yilka claim or that they are not adequately represented by the applicant. 

63                        M/s Bessie Dimer’s Form 5 states that the basis on which she wants to become a party is ‘Strong identity connection to this country’.

64                        M/s Daisy Doolkie Rundle states her basis as ‘Strong identity to this country through ancestral connection’.

65                        For reasons given in relation to the other Form 5 applicants, it is complained that mere assertions of ‘connection’ are insufficient to constitute or be construed as a claim to hold native title.  Neither of s 84(3)(a)(ii) or (iii) NTA apply and M/s Dimer and M/s Rundle are not made claimants by operation of s 84(3) NTA. 

RESPONSES FROM THE FORM 5 APPLICANTS

The Tucker Family

66                        The Tucker family, (Michael Tucker, Fabian Tucker, Alison Tucker (nee Barnes) and Daniel Tucker), rely on Adnyamathanha People No 1 v State of South Australia (2004) 208 ALR 91 (at [16]) where Mansfield J said:

... Section 84(3) contemplates that a person may become a party to a particular proceeding if that person falls within the categories set out in s 84(3). In particular, that the person notify the court in writing (the form 5) within the period specified in the notice under s 66 that the person wants to be a party to the proceeding. If that procedure is followed, status as a party arises by operation of s 84. It is independent of any exercise of power by the court: see Combined Mandingalbay Yidinji-Gunggandji Claim v Queensland [2002] FCA 730. …

67                        In Wilson on behalf of the Bandjalang People v Department of Land & Water Conservation (2003) 126 FCR 500 (at [21]):

Section 84 prescribes who the parties are to a native title determination application. A person becomes a party to proceedings by force of s 84(3) of the NTA (but subject to s 84(8)) if his interests may be affected by a determination in the proceedings and a written notice is given to the Federal Court within the notification period (s 66) that the person wants to become a party to the proceeding. The farmers did not give such a notice, hence their entitlement to become parties to the proceedings depends upon s 84(5) of the NTA. Section 84(5) provides:

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.

68                        These Form 5 applicants (and presumably all of them) contend that reg 6 of the Native Title (Federal Court) Regulations 1998 is not prescriptive.  It is permissive as to the form of notification required.  The regulation uses the word ‘may’ in relation to the form of the notification.  In any event, it is argued that the regulation is not able to prescribe a requirement as to the form of notification which is not mandated by the statute so as to have the effect of denying the rights afforded to persons by s 84(3) NTA.   From this it follows that there is nothing in the terms s 84(3) NTA which binds the Court to limit itself to the form or content of the notification to be given under s 84(3)(b) NTA in order to determine whether the person giving the notification has the necessary qualifications to do so as required by s 84(3)(a) NTA. 

69                        Further, there is no provision in Form 5 for the supply within the body of the form of information of the kind which would be required to indicate that a person had the status required for s 84(3)(a)(iii) NTA to apply, namely, that the person’s interest may be affected by a determination in the proceeding.  The form itself does not directly address the other two categories of persons who may be required to notify the Court that they want to be a party including those who claim to hold native title in relation to land or waters in the area covered by the application. 

70                        These Form 5 applicants contend that they fall within the category of persons claiming to hold native title in s 84(3)(a)(ii) NTA.  However, the interests to which these applicants allude in their notifications, even if not native title interests as contended by the applicant, nevertheless comprise an interest which may be affected by a determination in the proceeding.  The omission of the expression ‘native title interests’ in the descriptive words used in the Form 5 documents does not mean that what is claimed is not native title.  It is appropriate, it is submitted, for the Court to infer from what is said in each of the Form 5 applications that each applicant is claiming to hold native title in relation to the land and waters covered by the application.  In the case of Michael Tucker, in addition to referring to ‘ancestral connection’ going back five generations, his affidavit of 9 December 2009 deposes to his traditional rights to the Minnie Creek (Pilpirr) and surrounding areas including Yamarna, Hunters Waterfall (Nyanyirri), Mount Gill (Yinti) and Point Salvation/Munji Soak (Mantjal).  These areas fall within the Yilka Native Title Claim.  Similar submissions are made in respect of other members of the Tucker family.

71                        It is appropriate, it is submitted, that if the Court is not satisfied as to compliance with s 84(3)(a)(ii) NTA by what is contained in the Form 5 notifications, then it is entitled to consider such further evidence as may be provided to it in that regard, namely, the affidavits of Michael Tucker sworn on 9 December 2009 and 10 December 2009.  The Form 5 applicants are entitled to participate as parties to these proceedings with a view to preventing the making of a determination that does not include recognition of their interests. 

72                        All parties, however, acknowledge that the status of the Form 5 applicants as parties does not constrain the Court’s capacity to give directions as to how their interests might be properly represented and presented to the Court in a manner consistent with the efficient and orderly conduct of the proceeding.  These particular Form 5 applicants do propose to be represented jointly by one person through one legal practitioner. 

Mr Ron Harrington-Smith

73                        In the case of Mr Ron Harrington-Smith, however, although there is firm resistance to the suggestion that Mr Harrington-Smith should not be party, nevertheless, support is made for the submission of the applicant that a mediation between the parties may be beneficial to determine whether or not there is a basis for any claim by any of the parties in or in some part of the Yilka claim area. 

Kathy Tucker (nee Barnes), Corina Bennell (nee Tucker), Lisa Bennell, Jarred Dimer, Brett Dimer, Hilda Dimer (nee Barnes), Aaron Dimer, Shondelle Garlett (nee Dimer), Quinton Tucker, Shaun Dimer and Matthew Bennell

74                        These Form 5 applicants are members of the Ngurludharra/Waljen Heritage and Land Council.  As claimants they registered a native title claim over and beyond the borders of the Yilka claim area on 27 July 1995.  They contend that the Ngurludharra/Waljen has been recognised as traditional owners in the area for thousands of years.  They say that as early as January 1996, they sought to negotiate concerning the interests of the Cosmo area residents by which they asserted that they had traditional, historical and genealogical connections to the Cosmo Newberry area.  The Ngurludharra/Waljen claim was joined with the Wongatha claim which was deregistered in August 2005 as a result of the decision by Lindgren J in Wongatha.  The Ngurludharra/Waljen point to a passage from the judgment of Lindgren J at [4005] and also at [4008] where his Honour said:

In substance a determination of native title is a determination “whether or not native title exists in relation to a particular area”.  Accordingly, an order of dismissal is not a determination of native title. 

I need not discuss the question of the effect of a dismissal if, for example, an individual were in the future to apply for a determination that he or she had individual rights and interests, or if a different group were in the future to apply for a determination that it had group rights and interests, in the Wongatha claim area or in part of it.  Nothing that I have said is intended either to preclude or to encourage the advancing of any such claim. 

75                        In relation to M/s Kathy Tucker (nee Barnes), the Ngurludharra/Waljen make the following points.

76                        In M/s Tucker’s Form 5 notice, she stated she has a ‘strong rightful connection’ and further states the connection is ‘ancestral’, ‘traditional’, ‘historical’ and ‘genealogical’.  Following this statement M/s Tucker lists a family tree that she believes proves her ‘strong rightful connection’ by traditional laws and customs of the area. 

77                        The ‘strong rightful connection’ is said to be an assertion by M/s Tucker that traditional law and customs in the area recognise the descendents of Wunu and Biyuwarra and their rights and interest in the land as traditional owners.  The ‘ancestral’ connection was stated to prove native title interest in the land before sovereignty. 

78                        In Wongatha (at [296]), Lindgren J said:

Since the evidence does not establish any important and relevant event between 1829 and the earliest European records relating to the Goldfields, I infer that the situation that existed immediately when the written record began was like that at sovereignty.

79                        Further, M/s Tucker’s oldest sister, M/s Marjorie Bonney (the oldest family member giving evidence on behalf of that family’s interest in the claim) gave the following evidence during the Wongatha hearings:

I am my parents’ eldest child, followed by my brother, Cyril [Barnes].  I also have sisters named Kathy, Allison, Hilda, Jane and Faye (twins).  [T4871] at 641

My fathers’ family came from around Minnie Creek.  [T4867] His brothers and sisters were Alice, Cissie (Cissie McIntyre, the wife of Ranji McIntyre), Bella and Jim. [T4868] Aunty Alice (Yuduma) and Nadine [Cissy McIntyre] were older than my father.  Aunty Alice’s husband was Whisker Elder.  Aunty Alice told me she cam (sic-came) ‘from Mulga Queen, Cosmo towards Minnie Creek.” At 644

I also describe myself as Ngurludharra. [T4905] I was a claimant as one of the Ngurludharra people on the claim put in by Quentin (sic) Tucker on behalf of the Ngurludharra and Waljan (sic) people.  At 678

80                        The ‘traditional’ connection stated by M/s Tucker identifies the customs and laws of the land which recognise the belongings and ownership of the land to each generation.

81                        Evidence given by M/s Tucker’s ‘aboriginal brother’ or cousin and intended representative for the Ngurludharra/Waljen claim, Mr Danny ‘Darn’ Harris (recently deceased), during the Wongatha hearings shows this traditional connection to the land and its water sources still exists.  Mr Harris stated:

2129     My mother’s mother (my grandmother or kaparli) was Biyuwarra (Biddy). [T1618-9]  Her husband was Wunu.  I did not see either of them, but I have seen a photograph of Biyuwarra in Mt Margaret: A Drop in the Bucket.  They lived at the Mission before I was born. [T1619]  My mother’s sister was Cissie Barnes who married Ranji McIntyre.  Cissie has passed away [Ranji McIntyre passed away after judgment was reserved]. [T1596]  I call Ranji McIntyre 'mama' which is like ‘father’. [T10096]  Pearlie Wells is one of their children, and my cousin, and I call her ‘sister’. [T1596]  Ranji and Cissie had two sons and another daughter but all those have passed away. [T10081]  Her (Aunt Cissie’s) two sons lived with her at the Mission. [T10081-2]  My mother had two brothers (my kamurus); Jim Barnes [deceased] and Snowy Barnes. [T1595]  Cyril Barnes is one of his [Snowy’s] children, and I call him ‘brother’ (kukurtu), which is like cousin. [T1596, T10108]  My aunty, my mother’s sister, is Alice Barnes, who has passed away. [T1596]  My mother, Cissie, and Alice had the same mother.

2147     Lampi Turner took Cyril, Bobby and me on a trip to Ngarrurtji, Yilurn (Government Well) and back to Cosmo.  At ‘some of those places’ he told Cyril Barnes and me, ‘this is your thamu ngurrara, ngurrara’.  ‘[T]hat means it’s grandfather’s country, camp; he been every rockhole …  In all the rockholes, it’s your thamu ngurra this one, ngurrara.’ [T10203‑4]  Lampi said my thamu’s ngurrara went from Wartu to Marntjal [Mantjal], back to Pajarta, Tatjarn, Ngarrurtji and back to Yilurn, Mapa, Pirlpirr and from Cosmo to Yilurn, Yilka. [T10204]  That’s my thamu ngurra. [T10204]  My grandfather’s (Wunu’s) [country] is Cosmo, Minnie Creek, all that I mentioned, all the rockholes.  He told me or my mother told me. [T10211]

2148     My country is the same as my thamu’s; it is my ‘thamu ngurra, ngurarra’. [T10207]…

82                        The point is made that until his recent passing Mr Harris was a member of the applicant as shown in the Yilka claimant application.  In Wongatha (at [214]), Lindgren J said:

The Cosmo applicant submits:

‘The list of ancestors in Schedule A of the Cosmo [form 1] serves to describe the antecedents of the current group members who claim through their antecedents’ connections to country.  It does not define the Cosmo Newberry claim group in perpetuity.  For example, the next generation of Cosmo Newberry claimants may identify through the living upper generation and would describe themselves by reference to different antecedents.  It is also not automatically the case that all those antecedents’ descendants would choose to assert a claim to Cosmo Newberry and nor is it the case that only their descendants could claim country (though a claim on any other basis would need to be grounded in a traditional and recognised link).’

I accept the State’s submission that the process as described is ‘uncertain, unpredictable and arbitrary’.  It is a process which permits the members from time to time to change the membership criteria by recognising additional ancestors or withdrawing recognition of ancestors presently recognised.

83                        As a close relative of Mr Harris and with the same ancestral and traditional connections to the land, M/s Tucker claims the same native title rights to the country as Mr Harris.  Now that he has passed on, M/s Tucker will no longer have any representative on this claim to speak on behalf of herself and her traditional connection to the land.

84                        The applicant has conceded as noted that as relatives of a listed Yilka member, M/s Bessie Dimer (deceased) and M/s Daisy Dookie Rundle hold ‘native title in the claim area and have interests that may be affected by a determination’.  There is opposition to the applicant’s claim that the Court should not consider the two women for joinder because they do not assert that ‘they did not authorise the Yilka claim or that they are not adequately represented by the applicant’. 

85                        In M/s Tucker case, she is a relative of a listed Yilka member, Mr Danny Harris.  M/s Tucker and others have also asserted that they have not been adequately represented by the applicant.  Finally, Mr Harris having recently passed away leaving no representative on the Yilka claim.

86                        M/s Tucker also claims an ‘historical’ connection to the land as her family history shows a connection to the land by its visits, even after sovereign disruption and removal, to significant sites to ensure the continuation of laws and customs. 

87                        Finally, M/s Tucker asserts a genealogical connection.  The passing down of traditional ownership from parent to offspring is of significant importance to Ngurludharra/Waljen laws and customs.  As expressed in Mr Harris’ evidence, each parcel of land that belonged to his grandfather now belonged to him.  Both M/s Tucker and Mr Harris shared the same grandparents and now the same connection to the land and waters in the applicant’s claimed area.

88                        It is argued therefore that in considering whether M/s Tucker should be joined as a party under s 84(3)(a)(ii) and (iii) NTA the answer would be affirmative. 

89                        Similar claims are made in respect of the other members of this claim group.

90                        These Form 5 applicants contend that they have met the requirements of s 84(3) NTA and the applicant’s motion should be dismissed.  Further, they expressly seek, although there is no motion on foot, an order that the Form 5 applicants are now a party to the application.  Alternatively, that mediation be ordered for each Form 5 applicant and the applicants in relation to overlapping native title issues. 

Other Form 5 Applicants

91                        Not all of the Form 5 applicants have filed submissions.  Those who have not are Pearlie Wells, Lynette Graham (nee Blowes), Bessie Dimer, Daisy Dookie Rundle, Laurel Cooper and Lorraine Griffiths. 

CONSIDERATION

92                        Regulation 6 of the Native Title (Federal Court) Regulations 1998 is not prescriptive.  It is permissive as to the form of notification required.  The regulation uses the word ‘may’ in relation to the form of the notification.   While it is clear that only a person who satisfies the statutory requirements of s 84(3) NTA may become such a party, the precise content of the notice is of less significance.  There is no reason a challenge to the notice should not be brought as it has been in the present proceeding.  Equally, there is no reason that evidence and submissions should not be provided to expand upon or clarify the content of the notification.  Nothing in the terms s 84(3) NTA binds the Court to limit itself to the form or content of the notification to be given under s 84(3)(b) NTA in order to determine whether the person giving the notification has the necessary qualifications to do so as required by s 84(3)(a) NTA. 

93                        The Form 5 applicants contend that they fall within the category of persons claiming to hold native title in s 84(3)(a)(ii) NTA.  Whether they do or not, the interests to which they allude in their notifications, nevertheless comprise an interest which may be affected by a determination in the proceeding.  The omission of the expression ‘native title interests’ in the descriptive words used in the Form 5 documents does not necessarily mean that what is claimed is not native title.   Where there is doubt as to compliance with s 84(3)(a)(ii) NTA by what is contained in the Form 5 notifications, then it is appropriate to consider such further evidence as may be provided to it on a challenge.

94                        The applicant contends that it is no part of the Court’s role to complete an incomplete notice or otherwise enhance the content of a notice.  Thus the applicant would argue, no inference of a claim to hold native title can properly be drawn from a reference to ‘ancestral connection’, particularly under the laws and customs of the Western Desert Cultural Bloc.  The applicant rejects the submission that ‘traditional and ancestral rights’ could readily be seen as being similar in content through long association such that an inference of a claim to hold native title would be warranted. 

95                        In my view there is some force to the applicant’s complaints as to the content of the Form 5 applications which have been filed by all of the Form 5 applicants.  Further, the responses given by those applicants go only some way to addressing the complaints quite validly raised. 

96                        But, as indicated, I can see no statutory imperative which would preclude the court from taking into account further clarificatory evidence as to the nature of the claim described in a Form 5 application if the description given is challenged in the manner this motion challenges it.  Further I do not consider that this renders inutile the time limits imposed under the section. Unless a challenge were very much delayed, the position should be clarified reasonably promptly.   There could be circumstances in which Form 5 applications are totally unjustified but as with most litigation, it will be a rare case in which that can be properly resolved without consideration of some evidence.  Having considered the responses in affidavit and submission format from the various Form 5 applicants, it is not possible to say that their claims should be dismissed.

97                        In relation to those applicants who have filed submissions and evidence, despite the arguably inadequate or defective Form 5 applications, the view I take of the matter is that it would be too severe a sanction for them not to be joined in circumstances where despite the brevity of the content of the Form 5 applications, they have adduced evidence of a basis on which they are entitled to be recognised as parties to the application.  Of course, that is purely a prima facie basis as the justification for it will need to be tested as events unfold.  I would not consider that the applicant would be shut out from advancing a similar argument at a subsequent stage that the persons cease to be parties depending on how the application evolves and information and evidence develops.  At this early stage, however, consistent with conventional strike out principles, it would be too severe a sanction when there is at least some basis in each instance for the inclusion of the remaining Form 5 applicants in the proceeding to, in effect, shut them out. 

98                        Then there are those Form 5 applicants who, despite being given notice of the motion and the very detailed submissions in support of it, have filed no additional material and no response.  I can see no reason why those Form 5 applicants should be parties to the application if they ever were properly a party.  Accordingly, in respect of those applicants, they will not be parties in the proceeding.  Although no error of the kind considered by Dowsett J in Combined Mandingalbay is apparent, I will give leave to those Form 5 applicants to apply pursuant to s 84(5) NTA within 21 days to be joined should they be so advised. 

99                        The applicant does make a good point about the potentially unwieldy nature of the proceeding with so many different entities purporting to stake a claim in the application. 

100                      If it is not already implicit in the groupings which have been collected in the responsive submissions, I would nevertheless intend that specific directions be made that one person only represent each of the respective groups who have responded to this motion.  

101                      In addition to this, and in light of the valid criticisms of the illusory descriptions of the claims as presently articulated in some of the Form 5 notices, I propose requiring that each of the Form 5 applicants who are parties amend each Form 5 application so that the interest claimed is articulated with greater precision.  My reason for doing so is to ensure that it does not become necessary, as the application proceeds, to rely upon affidavit material but rather a proper expression of the claim is asserted with brevity but clarity from the outset.  Such an amendment should be capable of expression in one or two paragraphs.  I do not have in mind that it is necessary for the Form 5 applicants to articulate anything of the complexity and sophistication of the application itself but they certainly need to express with greater clarity the basis upon which the claim is pursued. 

102                      I will request those counsel who have made submissions endeavour to agree a Minute of Consent Orders within 14 days to reflect the conclusions in these reasons.  If that is not possible, any outstanding issues should be resolved on the papers.

103                      The following orders are made:

1.         Within 28 days the parties who have previously made submissions on the motion are to file a consent minute reflecting these reasons, alternatively, submissions not exceeding 2 pages, if consent is not possible.

2.         If consent orders can not be agreed, orders will be made on the papers. 

Associate: 

Dated:         11 June 2010