FEDERAL COURT OF AUSTRALIA

Far West Coast Native Title Claim v State of South Australia (No 5)

[2013] FCA 717

THE COURT ORDERS THAT:

1.    The interlocutory application by Michael Alfred Laing of 21 November 2012 that he be joined as a respondent party to this application is refused.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        Michael Alfred Laing filed an interlocutory application in this proceeding on 21 November 2012, seeking an order that he be joined as a respondent to this proceeding, pursuant to s 84(5) of the Native Title Act 1993 (Cth) (NT Act) (the joinder application). By directions given on 26 February 2013, his application is to be heard on the papers and the exchange of the written material has now been completed.

2        Mr Laing relied on his affidavits filed on 21 November 2012 and 23 January 2013. He also relied on an expert report of Dr Neale Draper, an experienced anthropologist, filed on 15 February 2013. Mr Laing also filed written submissions in support of his interlocutory application.

3        I have also had regard to the proposed further written submissions on behalf of Mr Laing annexed to the affidavit of Timothy Campbell (Mr Laing’s solicitor) of 6 May 2013.

4        The applicant and the first respondent each filed written submissions in reply opposing the interlocutory application.

BACKGROUND TO THE JOINDER APPLICATION

5        The joinder application is made in a claim under s 61 of the NT Act for a determination of native title over an area of land in favour of the Far West Coast Native Title Claim Group (the claim group).

6        The relevant land is a substantial area of land running east from the South Australian/Western Australian border along the coast a considerable distance to about Fowlers Bay, South Australia.

7        The present claim is a consolidation of two earlier applications for the determination of native title brought separately on behalf of the Far West Coast People and the Mirning People. The history of those two applications, and how they came to be consolidated into the present application, is set out in Far West Coast Native Title Claim v South Australia (No 2) (2012) 204 FCA 542; [2012] FCA 733 at [6]-[8] (Far West Coast (No 2)). The consolidation occurred on 18 January 2006.

8        Since the consolidation occurred, the applicant and the first respondent have been negotiating to resolve the claim by reaching agreement on the terms of a consent determination, rather than proceeding to a contested hearing before the Court. Those negotiations have now reached a stage where a draft consent determination has been drafted and circulated.

9        The joinder application is therefore made at a belated stage of the progress of the present claim, and at least potentially it could – if successful – impede the progress of the claim itself to final determination.

10        However, the joinder application is not made in a context where Mr Laing’s expressed interest in the primary claim is novel.

11        Mr Laing is the grandson of Gordon Charles Naley. Mr Laing says that Mr Naley was a Mirning man, born in the Eucla district of Western Australia in 1884. Dr Draper’s report says he was born at Mundrabilla near Eucla. However, Mr Naley was not included as one of the apical ancestors of the Mirning People in the Mirning Native Title Claim. When that claim was consolidated to form the present proceeding in 2006, Mr Naley was not named as one of the apical ancestors of the claim group.

12        Mr Laing was present at the meetings on 21 and 22 July 2005 where the consolidation was agreed to, although he claims to be a Mirning person through Mr Naley.

13        On 13 July 2009, Mr Laing by notice of motion sought orders first that the descendants of Mr Naley (including Mr Laing) (the Naley descendants) be included in the claim group, and secondly that Mr Laing be included as “a Party” to the claim. Mr Laing then applied for leave to amend the notice of motion by deleting the first of those claims. That was refused, and it was indicated that the status of Mr Naley was an issue to be listed for hearing. As to the second of those claims, on 14 December 2009 it was ordered that Mr Laing be “included and recorded as a party to the claim for the Far West Coast Native Title Claim” (the terms of the second order as sought), and the Court noted that the order was made on the basis that Mr Laing’s claim to be a member of the claim group meant that the applicant would continue to be authorised to progress the negotiations with the first respondent on behalf of the claim group (including Mr Laing).

14        At the following directions hearing, on 16 March 2010, it was unclear whether Mr Laing continued to assert an interest in the claim area beyond that as a member of the claim group. In the meantime, the negotiations between the applicant and the first respondent continued.

15        Mr Laing then sought to pursue his concerns through the body called the Mirning Community Inc, the membership of which was available to the descendants of two ancestors one of who was Mr Naley. The interlocutory application of 15 June 2010 by Mirning Community Inc to be joined as a party to the claim was not successful: Far West Coast Native Title Claim v South Australia (2011) 191 FCR 381; [2011] FCA 24 (Far West Coast (No 1)). See generally Far West Coast (No 2) at [9]-[12].

16        In the meantime, the outstanding claim by Mr Laing by the notice of motion of 13 July 2009 relating to the status of the Naley descendants was the subject of directions to ensure it was ready for hearing. Significant steps in that regard were taken. On 2 May 2011, shortly before a hearing date was to be fixed, Mr Laing discontinued his notice of motion of 13 July 2009 concerning the status of Mr Naley as an apical ancestor of the claim group. The notice of discontinuance then read:

And accordingly:

That Michael Alfred Laing no longer be included and recorded as a Party to the Claim for the Far West Coast Native Title Claim.

17        On that basis, on 3 May 2011, the Court ordered that Mr Laing cease to be a party to the application (effectively covering the order of 14 December 2009), and otherwise dismissed his motion to have Mr Naley recognised as an apical ancestor of the Mirning People and to have the Naley descendants recognised as members of the Mirning People.

18        That did not leave “clear air” for the applicant and the first respondent to complete their negotiations.

19        The decision in Far West Coast (No 2) on 10 July 2012 refused the application by Robert Victor Miller, a Mirning man and a member of the claim group, for the deconsolidation of the two claims referred to in [6] above. Mr Miller indicated that he and some other Mirning people were concerned that the agreements leading to the consolidation of the two claims were not being properly respected in the conduct of the claim by the applicant. Those concerns, as appears from comments made by counsel on Mr Laing’s (and others’) behalf at a directions hearing on 13 March 2009, were shared by Mr Laing.

20        Mr Laing was one of the deponents whose affidavit of 1 December 2011 was relied upon in support of Mr Miller’s motion.

21        On 18 April 2012, Mr Laing then brought a separate native title claim on behalf of the Naley descendants. The claimed area of land overlapped the area of land that is the subject of the present claim. Mr Laing’s claim was struck out on 7 September 2012 pursuant to s 84C of the NT Act: Laing v State of South Australia (No 2) [2012] FCA 980 (Laing (No 2)). In essence, that was because the specified claim group was only a subgroup of the group of persons who hold or were said to hold native title rights and interests in that specified claim area whereas by s 61 and s 251B of the NT Act required the claim to be authorised and made by a full claim group.

22        On 21 November 2012, Mr Laing then filed the joinder application. Unlike his earlier application to be joined as a party, Mr Laing does not now assert in the joinder application that he is one of the Naley descendants or more generally that the Naley descendants should be included as members of the claim group or that Mr Naley is one of the apical ancestors of the claim group.

23        The joinder application can therefore be seen as yet a further step in a lengthy process by which Mr Laing has sought to directly interpose himself in the conduct of the claim by the applicant, or to support Mr Miller or Mirning Community Inc to do so.

THE PRINCIPLES

24        Section 84(5) of the NT Act states:

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.

25        The words “and it is in the interests of justice to do so” were added by amendment in 2007, and do not apply to proceedings commenced before 15 April 2007: Native Title Amendment Act 2007 (Cth), s 2. The present proceeding commenced before that date, so those words are of no application.

26        It is established that the following elements must be considered when making a decision under s 84(5) (as it stood prior to the 2007 amendment):

(a)    whether the person has an interest;

(b)    whether the interest may be affected by a determination in the proceedings; and

(c)    whether, in any event, in the exercise of its discretion the Court should join the person as a party.

See generally Barunga v State of Western Australia (No 2) [2011] FCA 755 at [164] (Barunga) per Barker J; Akiba v Queensland (No 2) (2006) 154 FCR 513 at [32] per Finn J; Worimi Land Council v Minister for Lands (NSW) (2007) 164 FCR 181, 183-184 [4] per Bennett J.

27        Element (c) is really the same as asking whether it is in the interests of justice for the Court to join a person as a party. For that reason, Barker J did not regard the 2007 amendment as altering the substantive effect of s 84(5): Barunga at [163].

28        Turning first to elements (a) and (b), the authorities state that the relevant interest need not be proprietary, or even legal or equitable. But the interest must be “genuine; ‘... not indirect, remote, or lacking substance ...’; it must be capable of clear definition; and in relation to element (b) it must ‘be affected in a demonstrable way’ by the determination in the proceedings”: Barunga, [165]; Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310, [14]-[16] per Greenwood J.

29        Mr Laing’s relevant interest for the purposes of s 84(5) can only be the native title rights and interests that he may possess in his capacity as an alleged Mirning man and as someone who allegedly “ought to have been a member of the claim group”. Mr Laing has no other relevant interest.

30        It is clear that native title rights and interests are interests capable of satisfying the requirements of s 84(5). For instance, in Laing v South Australia [2012] FCA 676, which concerned Mr Laing’s separate Naley Native Title Claim, and is referred to at [19] above, the applicants in another native title claim, the Ngadju People Native Title Claim, successfully applied to be respondent parties to the Naley Native Title Claim. The Naley Native Title Claim overlapped with the area of the Ngadju People Native Title Claim. The Ngadju applicants sought to be joined to the Naley Native Title Claim as its outcome clearly could affect their claim and they wanted to bring a strike out application against the Naley Native Title Claim. The application to strike out the Naley Native Title Claim was subsequently successfully prosecuted: Laing (No 2).

31        It is also clear that claimed native title rights and interests can satisfy the requirements of s 84(5) even if those native title rights and interests have not yet been authoritatively determined by the courts to exist. For instance, in rare circumstances, a dissentient member of a native title claim group can become a respondent party to that claim group’s native title application: see Combined Dulabed and Malenbarra/Yidinji Peoples v Queensland (2004) 139 FCR 96 at 106 [45] per Spender J; Far West Coast Native Title Claim v State of South Australia (2011) 191 FCR 381, [27] per Mansfield J; Bidjara People #2 v State of Queensland [2003] FCA 324 per Ryan J; Butterworth v Queensland (2010) 184 FCR 397, [39] per Logan J; Starkey v South Australia (2011) 193 FCR 450 at 461 [55] per Mansfield J.

32        Moreover, traditional Aboriginal rights not necessarily amounting to native title rights and interests have also been recognised as being able to satisfy the requirements of s 84(5). In Davis-Hurst on behalf of the Traditional Owners of Saltwater v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315, a man applied to become a respondent party pursuant to s 84(5). He claimed to be a descendant of a different Aboriginal people to the claim group. He claimed that it was his people who were in fact traditionally associated with the relevant land, and that any members of the claim group who were traditional owners of the relevant land were so only because of their ancestral links to his own people. Branson J granted the application, holding that the man’s interest in seeking to avoid a court determination that would discount the traditional connection he believed to exist between the relevant area and his own people was a sufficient interest for the purposes of s 84(5).

33        It is clear from the above that native title rights and interests (and similar traditional rights-based interests) have been held in some circumstances to be interests capable of satisfying the s 84(5) criteria, and that those native title rights and interests need not have been certainly established in order to qualify under s 84(5) as a person whose interests may be affected by a determination.

34        But it is also clear that not just any person claiming to hold native title rights and interests thereby has an interest capable of satisfying s 84(5), no matter how tenuous his or her claim might be.

35        Wakka Wakka People #2 v State of Queensland [2005] FCA 1578 is instructive in this regard. The case involved similar facts to the present joinder application. A man claimed his great-grandmother was a Wakka Wakka woman. However, the relevant native title claim group did not include the man or any of his family or ancestors in the description of the claim group. He sought to become a respondent party. Kiefel J said at [5]-[6] that the man had not demonstrated he had an interest capable of clear definition:

[The applicant] does not identify an interest of the kind referred to in the Arakwal People’s case [i.e. an interest capable of satisfying s 84(5)]. It is not even apparent from the material he has provided and from what he has explained that he and his family are of the Wakka Wakka People. He does not explain how [his great-grandmother] is to be taken to be a Wakka Wakka person, how his family are Wakka Wakka People, or their connection with the land in question. The interest claimed is not even regarded as certain, for he simply says that his family ‘may’ have rights and interests in the Wakka Wakka country.

It is true, as [counsel for the applicant] points out, that it is not for the Court on the hearing of this application to determine whether [the applicant’s] assertion is correct. Nevertheless, he has to show a prima facie case in relation to an interest, in the sense referred to in the Arakwal People’s case. The application should be refused on that basis.

36        Element (c) set out at [26] above requires an assessment of whether in the Court’s discretion it should join the person as a party. On this point, I have in any event reached the firm conclusion that the Court should not exercise its discretion to join Mr Laing as a respondent party to the claim.

37        If a prospective respondent party can point to a clear and legitimate objective that he or she hopes to achieve by being joined, then it will generally be appropriate to exercise the Court’s discretion in favour of the application (unless there is some other factor such as delay weighing against such an exercise). For instance, in Laing v South Australia (No 2), the Ngadju applicants had a clear and legitimate objective in becoming parties to the Naley Native Title Claim because their claimed interests competed with those claimed by Mr Laing on behalf of the putative claim group.

38        In Davis-Hurst, discussed above at [32] Branson J granted a s 84(5) application where the putative party had an objective that could only be described in fairly vague terms at 318-319:

[The interlocutory applicant] does not wish to advance a claim for a determination of native title in respect of Saltwater, either on his own behalf, or on behalf of himself and other living descendants of the Pirripaayi people. However, he is concerned that a determination in favour of the [native title claim group] would give formal recognition to a version of history that does not recognise the Pirripaayi people as the traditional owners of Saltwater. …

He fears that any such determination will adversely affect his ability to share the knowledge that he has acquired about the Pirripaayi people and his capacity to keep alive Pirripaayi language and customary laws.

39        Thus, that putative party’s only objective in becoming a party to the proceeding appears to have been to oppose the making of any determination of native title at all in favour of the claim group over the relevant land. That was enough for Branson J to hold that he ought to be given a voice generally in the proceedings.

MR LAING’S MATERIALS

40        Mr Laing’s affidavits indicate that he claims to be a Mirning person, as a grandson of Mr Naley, a Mirning man born in 1884 in the Eucla area of Western Australia to a full-blooded Mirning woman. He says he thereby learned Mirning culture, history and tradition through the children of Mr Naley and other senior Mirning people, and he has a physical and spiritual connection to Mirning lands, including the claim area. He also describes his active role in relation to the claim area and Mirning land in Western Australia, particularly since 2004 or 2005. He says he has been accepted as a Mirning elder, at least by a number of Mirning people.

41        His affidavit of 21 November 2012 asserts that the Naley descendants, as a significant Mirning family group, “have been denied the right of veto for decisions” in which other Mirning families have participated, and he says all Mirning family groups must agree to any significant decision. The basis for that assertion about the nature of the traditional laws and customs of the Mirning people is not explained.

42        That affidavit concludes that Mr Laing believes he has native title rights and interests in the claim area as a Mirning person.

43        Mr Laing’s affidavit of 23 January 2013 says that from 2007, following the death of his Auntie Margaret Lawrie, to 2008, he represented Mirning interests at the “Far West Coast Native Title Claim meetings”.

44        That affidavit also says that he withdrew his application to be a party to the claim (see [16] above) to pursue the Naley Native Title Claim, which would give him and the other Naley descendants “far greater rights” than his becoming a respondent party to the claim, but “reverted” to the joinder application when that claim failed.

45        Finally, it says that the Naley descendants share Mirning authority, interests and standing equally with other descendants of Mirning apical ancestors.

46        The Report of Dr Draper is entitled “Naley Family Connection to the South Australian Nullabor Coastal Region” (the Draper Report).

47        The letter of instruction from Mr Laing’s solicitors to Dr Draper encloses an Anthropologist’s Report of Dr Kingsley Palmer, also an experienced anthropologist, of December 2009 entitled “Customary Rights of the Descendants of Gordon Naley” (the Palmer Report) and affidavits of Mr Laing of 28 September 2009 and 4 June 2010. Those documents are not themselves in evidence on the joinder application. Dr Draper notes that there are some crucial instances where Dr Palmer refers to his earlier report of 2009, and that that report was not provided to him (Dr Draper).

48        It should be noted that the material provided to Dr Draper is not part of the evidence on the joinder application.

49        The instructions to Dr Draper request him to address specific issues. They are reflected in Dr Draper’s conclusions, referred to below, so it is not necessary to set them out at this point.

50        Dr Draper reviewed “published and unpublished anthropological and historical reports, archival documents, and transcripts and summaries of DVD-recorded ethnographic interviews by ACHM [Australian Cultural Heritage Management] anthropologists and other researchers”, some of whom he identified. The Draper Report refers to particular source material in the text and in the bibliography. Dr Draper points out that the available time and financial resources for his research were very limited, and did not permit him to undertake any field trips.

51        The summary of Dr Draper’s conclusions is as follows:

(1)    On the geographic extent of Mirning country and families: their traditional rights and interests were exercised mainly in coastal regions but occasionally towards the northern extent of the Nullabor Plain, extending west to intersect with the Ngjadju People and east to the head of the Great Australian Bight or even to Fowlers Bay to intersect with the Wirangu People. At the intersections there were likely to be joint group ancestries.

(2)    On the extent of customary rights of Mirning families: the geographical range varied with the need to maintain a “sustainable existence economy and lifestyle” in the harsh environment, extending in part through exogamous marriage practices into the country of adjoining peoples. In substance, the customary rights were exercised over much the same geographical area.

(3)    On the geographic area over which the Naley descendants have customary rights: on the basis that Mr Naley’s mother was most likely a Mirning woman, but contrary to the apparent views of Dr Palmer (I use the word apparent only because the Palmer Report is not part of the evidence on the joinder application), the Naley descendants would not have exercised their customary Mirning rights confined to the Mundrabilla or Eucla vicinity or only within Western Australia.

(4)    On the Naley descendants’ Mirning connection: there is sufficient evidence to say that they are of Mirning ancestry, through Mr Naley who was born at Mundrabilla in Western Australia of a Mirning mother and a European father, described in one record as a “Station Manager”.

52        Mr Laing’s submission confirms that he does not presently seek to have the description of the claim group changed to include Mr Naley as an apical ancestor or that Mr Naley be recognised as a Mirning person, although he refers to the prospect that the first respondent, based upon the Palmer Report, will have the Naley descendants recognised as Mirning people. As noted above, an order effectively recognising Mr Laing as a Mirning person was made on 14 December 2009 but Mr Laing by the order he obtained on 3 May 2011 appears to have abandoned that status: see [17] above. The first respondent has indicated that it is not committed to pursuing any order that Mr Naley be recognised as an apical ancestor of the Mirning People or about the status of the Naley descendants.

53        Mr Laing simply seeks an order that he be made a respondent to the claim. It is said he has legitimate concerns and interests and that he should be given a voice in the consent determination process, beyond simply expressing his view as a member of the claim group when and if the applicant agrees with the respondent on the terms of a consent determination and the applicant puts that proposal to the claim group for approval.

54        It is apparent that, despite his disavowal of pursuing an order about the status of Mr Naley or the Naley descendants, Mr Laing does claim to be a Mirning man, descended from Mr Naley. His submission observes that the joinder application under s 84(5) has a “lower threshold” than an application to have the Naley descendants included in the claim group. But it also clearly identifies him as claiming to be a Mirning man descended from Mr Naley, and the Draper Report was asked to address that topic.

55        As a member of the claim group as a Mirning man (despite the fact that the applicant presently refuses to recognise him as having that status), Mr Laing then says that because he should have been recognised as a member of the claim group from the outset, he has standing to become a respondent to the claim because his interests may be affected by any determination. Moreover, he argues, the interests of justice are best served by him becoming a respondent party because, as a senior Mirning man (so recognised at least by some other Mirning people) he should have been consulted about the conduct of the claim for the Naley descendants and himself and others. In particular, he wishes to voice his concerns “about ILUAs and to participate in case management conferences” including concerning any proposed consent determination.

CONSIDERATION

56        The procedural history concerning the status of the Naley descendants, and concerning the attempts of Mr Laing and others to directly become involved in the negotiations between the applicant and the respondent is set out above.

57        For present purposes, I am prepared to assume that Mr Laing is a Mirning man and that he has that status as a Naley descendant. I make that assumption as the evidence on the joinder application points clearly to that conclusion, including the Draper Report. That particular issue has not however been tried and formally determined, despite the opportunities given to Mr Laing to pursue it.

58        However, that assumption does not assist Mr Laing. If he is a Mirning man, he would be entitled to the same, and not greater, rights as those of other Mirning persons who are members of the claim group. In that capacity, the circumstances in which a dissentient member of a native title claim group will be permitted to become a respondent to the claim will be rare: Starkey v South Australia (2011) 193 FCR 450 at [61]-[63]; Far West Coast (No 2) at [38]-[39].

59        In Far West Coast (No 2), Mr Miller’s application for deconsolidation of the claim by reinstating the Mirning Native Title Claim was refused: see at [64]. His application to be joined as a respondent to the claim, and for orders under ss 84D(1) and (4), and for summary dismissal of the claim, were stood over for hearing if he chose to pursue them: see at [64]. As appears at [10], [12] and [61]-[62] of that judgment, Mr Miller on that application has much the same concerns as Mr Laing (other than the status of the Naley descendants) about how the applicant is managing the claim. Those issues were ultimately listed for hearing on 17 December 2012. An application to adjourn the hearing was unsuccessful: Far West Coast Native Title Claim Group v South Australia (No 3) [2012] FCA 1435. At the hearing, Mr Miller withdrew his application to be joined as a respondent to the claim: Far West Coast Native Title Claim Group v South Australia (No 4) [2012] FCA 1468 at [3] and [12]. An application to amend the interlocutory application to directly challenge by interlocutory process the authorisation of the claim was then refused.

60        Mr Laing’s position is not as a member of a competing claim group: cf Starkey at [46] and the cases there referred to. Subject to the status of the Naley descendants (which on the joinder application he has specifically chosen not to pursue), his concern is intra-mural: Starkey at [47]. For the reasons given in Starkey at [48]-[62], in my view Mr Laing has not shown on the material relied upon that this is one of the rare cases where he, as an assumed (for present purposes) member of the claim group should be permitted to become a respondent party to the claim. There is nothing in the Draper Report which distinguishes the Naley descendants from other Mirning people in their interests in the claim area.

61        I note that Mr Laing’s submissions do not put particular focus on his assertion by affidavit that the Naley descendants, through him, have a veto right on the applicant’s conduct of the claim or on any decision by the Mirning People collectively or by the claim group. That is no more than a mere assertion in his affidavit not supported by any evidence. In particular, it is not supported by Dr Draper. In the circumstances, I place no weight on it.

62        In his submission, Mr Laing has relied in particular on Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 at [26] and Far West Coast (No 1) at [26] and [27] as examples of those rare cases which are relevant to his circumstance.

63        I do not consider that those decisions enhance his position. The latter is discussed above at [14] and concerned the status of Mirning Community Inc. The former, in the passage relied upon at [26] and [27], refers to the discretion under s 84(5) whether a number of persons all “representing” the same competing claim group should all be joined as respondents to a claim.

64        In respect of the status of the Naley descendants, including Mr Laing, I do not regard making him a respondent party to the application as either a necessary or appropriate step. First, because Mr Laing has expressly disclaimed the use of the joinder application for the purpose of determining the status of Mr Naley or the Naley descendants. Second, because there is a more appropriate avenue to pursue such an issue. Mr Laing has previously taken that avenue but has abandoned it: see eg per Drummond J in Kulkalgal People v Queensland [2003] FCA 163 at [7]. Whether he should now be permitted to review it is not a matter presently to be decided, but he is not permitted to do so by a sidewind by what his submission acknowledges is the “lower threshold” of an interlocutory process. If he says the claim group should be differently described, that should in any event be done by a final determination of that issue on admissible evidence.

65        On the assumption that he is a Mirning man, in respect of the concerns he and others have expressed about the authorisation of the applicant and the applicant’s conduct of the claim, including the extent to which and the manner in which the applicant has consulted with the Mirning People generally, that is a matter which will be addressed and possibly resolved when and if the applicant and the respondent propose a consent determination and the applicant, as is acknowledged will be done, seeks the approval of the claim group to the proposed determination. So far as the evidence goes, there is no reason to anticipate that Mr Laing will dispute that the nature of the native title rights and interests held by the claim group over the claim area, if they are agreed with the first respondent, will of themselves be contentious. Any intra-mural issues (other than the status of the Naley descendants) may well not be of ongoing concern depending on the terms of the proposed determination and the composition and structure of any proposed prescribed body corporate to be established in accordance with ss 55-57 of the NT Act. I adverted to those matters in Far West Coast Native Title Claim Group v South Australia (No 4) [2012] FCA 1468.

66        On the assumption made, Mr Laing is a dissentient member of the claim group who wants to intervene directly in the conduct of the claim by the applicant. He does not show even on an interlocutory basis that he has particular rights and interests in the claim area different from those of the Mirning People generally; Dr Draper’s Report does not suggest that. It follows that he does not show that his particular interests, different from those of other Mirning People, might be affected by any determination of native title. Indeed, it may well be that – assuming he is a Mirning man – any proposed consent determinations will be consistent with the rights and interests of the Mirning People which Dr Draper has referred to. Furthermore, as discussed in Far West Coast (No 4), because the applicant will be submitting any proposed consent determination to the claim group for its approval before the Court is asked to make such a determination, the Mirning People will then have the opportunity to address the outcome that the applicant has proposed on their behalf.

67        It is, in my view, clear that Mr Laing cannot be in a better position to be recognised as a party for the claim by having declined to be recognised as a Mirning person (by the orders he sought on 3 May 2011) and by having abandoned the pursuance of the issues as to the status of Mr Naley and of the Naley descendants. As a putative Mirning person, his “interests” would be more remote than if he were recognised as a Mirning man. In addition, in the exercise of my discretion, I would not permit him to benefit from the asserted “lower threshold” (which he asserts in submissions) in the light of the procedural history and his express disavowal from addressing the issue of the status of Mr Naley and the Naley descendants.

68        In addition, there are discretionary considerations which militate against acceding to Mr Laing’s joinder application.

69        The applicant contends, with reference to the decision of Reeves J in Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 (Isaacs), that delay and prejudice are considerations that are relevant to the Court exercising its discretion to join a party pursuant to s 84(5).

70        In Isaacs, Reeves J concluded at [34]:

…[E]ven if I had concluded that the applicants wished to pursue valid personal claims as respondents in these proceedings, I would not have exercised my discretion to join them as respondents given their late application, the absence of any explanation for the delay and the likelihood that their presence as respondents would jeopardise the imminent trial of these proceedings.

71        The consolidated Far West Coast Native Title Claim has existed since 18 January 2006. Mr Laing attended the meeting on 21 and 22 July 2005 where that consolidation was agreed to. Mr Laing did not make an application to become a party to the proceeding until 13 July 2009. That application was discontinued on 2 May 2011. Mr Laing then brought his own native title claim on 18 April 2012. That was dismissed on 7 September 2012. Mr Laing then made the present application on 21 November 2012.

72        The delay between Mr Laing’s becoming aware of the consolidation and his bringing of his first interlocutory application, and the delay between the discontinuance of his first interlocutory application and his bringing of his separate native title claim, is a further discretionary reason why Mr Laing should not now be permitted to become a respondent party to the claim, although I would not refuse Mr Laing’s joinder application simply on the ground of his delay in bringing this application.

73        Mr Laing’s joinder application is dismissed.

Associate:

Dated:    30 July 2013