FEDERAL COURT OF AUSTRALIA

A.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 2) [2013] FCA 1000

THE COURT ORDERS THAT:

1.    The interlocutory application filed by Michael Alfred Laing (Mr Laing) on 19 April 2013 is dismissed.

2.    The ancillary interlocutory application filed by Mr Laing on 17 July 2013 is dismissed.

3.    Within 7 days, the Mirning Applicant file and serve submissions on costs (not exceeding two pages).

4.    Within a further 7 days, Mr Laing file and serve submissions (not exceeding two pages) in response to the costs submissions filed in accordance with order 3.

5.    The costs application be determined on the papers.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    Mr Michael Alfred Laing wishes to be joined as a respondent to the existing native title determination application brought on behalf of the Mirning People (the Mirning Claim). His interlocutory application dated 19 April 2013 is supported by an affidavit sworn by him on 19 April 2013. His application is opposed by the Mirning Applicant and the State of Western Australia (the State). For reasons discussed below, the application will be dismissed.

STATUTORY BASIS OF APPLICATION

2    Mr Laing’s joinder application is brought pursuant to s 84(5) of the Native Title Act 1993 (Cth) (NTA). Section 84 relevantly provides:

84    Parties

Coverage of section

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

…

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.

SOME RELEVANT CONSIDERATIONS

3    In a similar application by Mr Laing in Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 Mansfield J noted (at [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.

4    His Honour noted (at [28]) in relation 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.

5    His Honour observed (at [31]-[33]):

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.

(emphasis added)

6    But his Honour went on to state (at [34]) that it was 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.

7    In this context, his Honour said (at [35]-[37]):

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.

(emphasis added)

EVIDENCE IN SUPPORT OF THE APPLICATION

8    The evidence in support of Mr Laing’s joinder application was contested but except to the extent of unsubstantiated conclusions specifically addressed below, is taken at face value for the purposes of his application.

9    Mr Laing explains that he is the grandson of Mr Gordon Charles Naley, a Mirning man born in the Eucla District in Western Australia (near the South Australia border) to a full-blooded Mirning woman in 1884. He relies upon a report by historian, Dr Peter John Gifford, a report by historian, Mr Tom Gara and an anthropological report by Associate Professor Dr Neale Draper. Mr Laing says the expert evidence ‘confirms that the Naley family share Mirning cultural rights and interests’.

10    Mr Naley was born at Mundrabilla Station in Western Australia. Mr Naley has not been recognised as one of the apical ancestors for the Mirning Claim. Mr Laing says that Mr Naley and his descendants, including Mr Laing, have maintained a physical and spiritual connection to Mirning lands according to Mirning traditional laws and customs.

11    From his childhood, Mr Laing says he has been taught Mirning culture, history and tradition. He says that he ‘has been entrusted with cultural information’ relating to the land and waters and Mirning sites in South Australia and Western Australia. That information was passed to him from the now deceased children of Mr Naley and other Mirning elders.

12    In about 1927 Mr Naley went to Adelaide to the Myrtle Bank War Veterans Home, dying there in 1928. After World War One in which he served and while living at the Riverland, Mr Naley regularly took his family of five children to visit a male Mirning elder at Torrensville. That elder was respected and recognised as someone who had authority and knowledge. Mr Naley’s children came to know the elder quite well and learned from him. After Mr Naley’s death, two of his children in particular maintained their relationship with the Mirning elder. The two children, Edgar and Violet Naley, regularly visited him. Edgar Naley kept in contact with the elder until the late 1930s.

13    When he was 8 years of age Mr Laing lived in Melbourne. He then met his ‘Auntie Bet’ (Violet Naley). She introduced him to Mirning culture and gave him some artefacts. He was not aware at that stage that the culture introduced to him was Mirning. He moved to Adelaide when he was about 12 years old and was then visited by his ‘Uncle Gee’ (Edgar Naley). His Uncle Gee took responsibility for passing on cultural stories and knowledge to him. His Auntie Bet also did this as he grew older. Uncle Gee shared cultural stories, knowledge and ‘passed on the responsibility which came with the sharing of that cultural information’ until he died. Uncle Gee took Mr Laing to the Nullarbor when he was about 18 or 19 years old and, subsequently, on two other occasions. He explained the locality of the Mirning country, showing Mr Laing Mirning sites and explained the Mirning culture relating to Mirning sites.

14    In 2003, Mr Laing was informed by Neva Wilson, author of a genealogy of far west coast Aboriginal families that he was ‘Mirning’, not, as he had been told by his family, ‘Meening’. In 2004, he mentioned this to two university academics who taught Aboriginal Studies and who were parents at the school his children attended. They lent him a book entitled The Mirning: We are the Whales by Iris Burgoyne. Following this, Mr Laing made contact with Ms Burgoyne and she became known to him as ‘Auntie Iris’. Mr Laing says she is a well-respected Mirning elder and the matriarch of her family group.

15    Mr Laing contacted Ms Burgoyne in September 2004 by telephone and met her subsequently at the Port Lincoln Tunarama Festival on 22 January 2005. Mr Laing’s daughter, Kate, then 8 years old, was invited by Ms Burgoyne to sit beside her on a Tunarama float as she recognised Mr Laing’s daughter as Mirning. Mr Laing says there were a number of Mirning People who recognised him as Mirning in Port Lincoln.

16    In 2005, the descendents of Mr Naley were recognised as Mirning by elders such as Ms Burgoyne, Ms Lawrie (‘Auntie Margaret Lawrie’) and her siblings (Elizabeth Larkins and Robert Lawrie).

17    In July 2006, Mr Laing’s immediate family and he visited and camped on Mirning country, visiting the Nullarbor, Fowlers Bay, Yalata Mission, Nundroo and various other places related to significant Mirning stories and knowledge.

18    Mr Laing contends that he identifies as Mirning and is recognised and acknowledged as such by the Mirning community and other Aboriginal communities. Within the Naley clan, he is recognised as a Mirning elder and has the status of being a senior Mirning man. He says that under traditional laws and customs of the Mirning this status has been conferred upon him by his Mirning uncle and aunt and other Mirning elders in the Mirning community. He contends that having the status of senior Mirning man, he has traditional obligations, rights and responsibilities for Mirning country, waters and associated stories pertaining to Mirning culture, heritage and ownership of country. He gives detail about those matters. As a senior Mirning man, along with other members of the claim group, he accompanied researchers and scientific people from the archaeology section of the South Australian Museum in January 2011 to a significant Mirning site. This research trip, he says, involved Mirning participation as custodial guides and to provide advice. He is involved in an ongoing program with the South Australian Museum and further trips on Mirning land are being planned. He gives other background information in his affidavit.

19    Mr Laing says that since 2005, he has participated in the Mirning Claim in a number of ways but not as an applicant or a claimant. On behalf of Mr Naley’s descendants he unsuccessfully brought a native title determination application on behalf of the Naleys (Federal Court proceeding SAD 77 of 2012) (the Naley Claim) in the South Australian District Registry of this Court. He believes he has native title rights and interests as a Mirning person in the Mirning Claim. Neither he nor Mr Naley are part of the Mirning Claim. He has been invited to attend claim group meetings but has been told that he is not allowed to vote or join in the discussions.

20    Mr Laing is concerned that the Mirning Claim is now well advanced and he has had no opportunity for input into it. He believes it is the only way he can ‘protect his rights and interests’ if he is made a respondent to the Mirning Claim. He has no confidence that his rights and interests would be appropriately represented by the claim group. He also contends that one of the applicants, Mr John Graham, is Ngadju rather than Mirning. Accordingly, he would not represent Mr Laing’s interests.

21    Also in support of Mr Laing’s application, Mr Robert Lawrie swore an affidavit on 19 June 2013 in South Australia indicating that the Mirning community have already said that Mr Laing and the descendents of Mr Naley are Mirning. Mr Lawrie deposes that the Goldfields Land and Sea Council (the GLSC), who represent the Mirning Applicant, have no instructions to oppose Mr Laing’s application. Mr Lawrie is a named applicant on the Mirning Claim and has not given instructions to oppose the application, nor has he been invited to a meeting where opposing the application has been raised. He has not been at any meeting or seen any minutes discussing that topic or authorising the opposition to the application.

22    Mr Laing’s application is also supported by an affidavit sworn by Mr Bunna Rupert Lawrie in similar terms and in the same terms by Mr David James Hirschausen.

Gender restricted evidence

23    Mr Laing also sought ancillary orders that he be permitted to give oral evidence in support of his joinder application and that with respect to any male gender-restricted evidence there be certain protections as indicated below:

Hearing

a.    The testimony be given in camera as set out in (b), (c) and (d).

b.    With the exception of the judge, male court staff including male transcript recorders and transcribers and male lawyers, no other persons are to be present when the evidence is given.

c.    No other person aware of the making of this order shall be within hearing of the place at which the testimony is being given while it is being given.

d.    The testimony shall not be broadcast over loudspeaker or by radio except for transcript recording.

e.    The testimony given shall not be directly or indirectly divulged

i.    to any person other than those permitted to be present in accordance with (b) above who is aware of the terms of this order and the judge; or

ii.    for any purpose other than the purposes of this proceeding and any appeal against a judgment or order made in it.

f.    The solicitor for the interlocutory applicant must inform him in relation to his proposed gender-restricted evidence:

i.    that the Court may set aside or vary these orders;

ii.    that female judges may sit on any appeal.

Transcript

g.    The transcript of male gender-restricted evidence testimony and the audio and electronic records of them from which the transcript is made are to be separated from the general transcript records. The audio and electronic records must be transcribed by an adult male and are to be printed on blue paper paginated chronologically with the general transcript.

h.    The transcript of the restricted evidence shall have a covering sheet clearly marked with the date of the hearing on which the restricted evidence was given and the words

“Gender restricted evidence – adult males only”

i.    The transcript of the restricted evidence shall have the same note printed on each page.

j.    The transcript must not be provided to or viewed by persons other than by persons permitted to be present by order (b) above.

k.    Male counsel for the parties shall use their best endeavours to agree upon the evidence given in restricted session that may be made available as non-confidential transcript and upon a statement that may be tendered as to the effect without disclosing the content of the remaining restricted material.

24    The application for evidence to be given in camera was supported by an affidavit of Mr Laing affirmed on 12 July 2013 expressing his distress that he was being forced to give evidence about very sacred Mirning matters, particularly relating to Mundrabilla in Western Australia. He sought leave to allow him to give oral evidence in support of his joinder application but only in a restricted male–only court sitting with the transcript of his evidence not being available to females or to the public. Mr Laing deposed that he had given evidence to anthropologists and lawyers in the past and it had been given to others without his permission. He does not now trust people to receive his evidence and treat it with respect and confidentiality. He attached two photographs of sacred timber objects which had been entrusted to him as custodian. It is not necessary to say more about those objects other than Mr Laing contends that he is also ‘custodian of a very sacred object which he has secreted in a safe place in the Mundrabilla area’. The culture and stories are passed down by parents, uncles and aunties. The latter are not necessarily related but are persons to whom respect and authority is accorded. Over the years, since he was about eight years old, Mr Laing says he has been given cultural information. He reiterates part of the original evidence in support given in his first affidavit.

25    The application to give gender restricted evidence was also opposed. I informed counsel for Mr Laing that I would not be making orders as sought by that ancillary interlocutory application. I will deal with that consideration when addressing the substantive application.

EVENTS LEADING UP TO THE JOINDER APPLICATION

26    The opposition to the joinder application was supported by affidavits on behalf of the Mirning Applicant, principally by Monica Jo Franz, a solicitor employed by the GLSC, solicitors for the Mirning Applicant. Ms Franz records in her affidavit that Mr Laing filed the Naley Claim on 18 April 2012.

27    The Naley Claim overlapped the following three claims:

1.    John Walter Graham v State of Western Australia (Federal Court Proceeding WAD 6020 of 1998) (the Ngadju Claim);

2.    The Mirning Claim; and

3.    Kenneth Gordon Roberts on behalf of the Far West Coast Native Title Claim v State of South Australia (Federal Court proceeding SAD 6008 of 1998) (the Far West Coast Claim).

28    Ms Franz records that on 7 September 2012, Mansfield J dismissed the Naley Claim (Laing v State of South Australia (No 2) [2012] FCA 980) (Laing No 2) as it was not made by a native title claim group or by persons authorised by all the persons constituting that group as required by s 61 and s 251B NTA. The Naley descendents as a group were, at best, a subset or a sub-group of the Mirning People: Laing No 2 (at [25]).

29    Section 61 NTA deals with the method of authorisation of an applicant, relevantly providing as follows:

61    Native title and compensation applications

Applications that may be made

(1)    The following table sets out applications that may be made under this Division to the Federal Court and the persons who may make each of those applications:

30    On 27 May 2013, Ms Franz emailed Mr Campbell, Mr Laing’s solicitor, in relation to the present joinder application enquiring as to the details of the relief that Mr Laing would seek if he were joined as a respondent to the Mirning Claim. The response to that was that Mr Laing would reserve all rights but initially he wished to review any connection evidence of the Mirning and, in particular, that which related to Mirning law and custom.

31    The opposition to Mr Laing’s joinder application was also supported by a second affidavit of Ms Franz, affirmed on 25 June 2013. Ms Franz again referred to the overlapping Naley Claim that was struck out by Mansfield J in Naley No 2 and the description of the claim group as the ‘descendants of [Mr Naley]’.

32    Ms Franz deposes that in August 2005, Mr Laing contacted the GLSC seeking information about the Mirning Claim. On 16 and 21 September 2005, he provided various materials to Ms Sophie Kilpatrick a solicitor then employed by the GLSC in support of his involvement in the Mirning Claim, including a letter from the ‘Mirning Elders Heritage Committee’. Ms Kilpatrick wrote to Mr Laing explaining the processes involved in becoming a member of the Mirning claim group. In November 2006 Mr Laing attended and addressed a meeting of the Mirning claim group. During the course of the meeting, Mr Laing and Mr Laing’s cousin, Mr Trevor Naley, were invited to be part of the Mirning working group.

33    On 13 July 2009, Mr Laing made an application in the Far West Coast Claim seeking to have the description of the native title claim group amended to include the descendents of Mr Naley or, alternatively, to be joined as a respondent. Mr Campbell forwarded a copy of an affidavit in support of that application to Ms Kilpatrick. On 9 September 2009, Ms Kilpatrick wrote separately to Mr Laing and Mr Trevor Naley asking whether they wished to continue as members of the Mirning working party.

34    On 14 September 2009, during a telephone conversation between Mr Trevor Naley and Ms Kilpatrick, Mr Trevor Naley told Ms Kilpatrick that he wished to continue as a member of the Mirning working group. On the following day, Mr Campbell sent an email to Ms Kilpatrick attaching minutes of a ‘Mirning Community Meeting’. On 20 October 2009, Mr Campbell wrote to Ms Kilpatrick enclosing an affidavit filed by Mr Laing in relation to the Far West Coast Claim confirming that Mr Laing wished to be recognised as of Mirning descent and included as part of the native title claim group.

35    In the following month, in November 2009, Mr Laing attended the meeting of the Mirning claim group. He requested that the Mirning Claim be amended to include the Naley claim group. The Mirning claim group expressly declined to agree to Mr Laing’s request. The claim group agreed that Mr Laing was a Mirning man.

36    Almost two years later, on 16 August 2011, Mr Campbell wrote to the GLSC seeking confirmation that the descendents of Mr Naley were able to participate in a forthcoming meeting of the Mirning claim group. On 21 October 2011, Mr Laing emailed Mr Mavec, a solicitor employed by the GLSC, asserting his desire to protect Mirning heritage stating that he regarded himself and the Naley descendents as being on the ‘outer’ and that they would have to now consider their position with respect to the Mirning Claim.

37    On 15 May 2012, after the Naley Claim was filed on 18 April 2012, Mr Mavec on behalf of the Mirning Applicant wrote to Mr Laing asking him to withdraw the Naley Claim overlap from the Mirning Claim. On 25 May 2012, Mr Campbell wrote to Mr Mavec declining to do so.

ARGUMENTS RAISED FOR MR LAING

38    It is contended that applying the broad notion of ‘interest’, Mr Laing has an interest that may be affected by a determination in the proceedings: Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310 per Greenwood J (at [14]). Mr Laing says he satisfies the relevant interest test for the purpose of s 84(5) NTA as his interest rises above an interest that an ordinary member of the public might hold; is genuine; and reflects and otherwise complies with the requirements articulated by his Honour (at [14]):

[Section 84(5) NTA] provides that 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. The notion of “interests” for the purposes of s 84(5) is a broad conception, not confined to the statutory understanding of the term “interest” in s 253 as that term applies in relation to land or waters. The interests asserted by an applicant for joinder need not be proprietary, legal or equitable in nature; must rise above an interest that an ordinary member of the public might hold; must be genuine; must reflect an affect upon the person’s interests beyond a mere emotional, conscientious or intellectual interest; and, must not lack substance: Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1; Woodridge on behalf of the Gomilaroi People v Minister for Land & Water Conservation for New South Wales (2003) 108 FCR 527; Dann (on behalf of the Amangu People) v Western Australia [2006] FCA 1249.

39    Mr Laing says his interests may be affected by a determination. His interests are:

(a)    as a senior Mirning person;

(b)    as a member of the native title claim group (as ‘defined by the authorities even though he is not included in the claim group description’);

(c)    whose rights and interests have not been properly protected by giving him appropriate standing and voting rights within the native title claim;

(d)    as a person of culture, knowledge and responsibility for the protection of sites within the Mirning claim area; and

(e)    as a person whose family group should be represented in the Mirning Claim.

40    On the basis of the material set out in Mr Laing’s affidavits, he contends that all these matters are well established and that it is in the interests of justice to make him a respondent.

CONSIDERATION

41    I will first deal with the reasons I declined the ancillary application to give gender specific evidence.

Gender specific evidence

42    Mr Laing proposed gender restrictions as to who could be present to hear his evidence or read the transcript. He did not provide evidence in support of the orders sought or allow for male members of the Mirning Applicant or claim group to attend the proposed restricted hearing or read the transcript. The proposed orders would not have allowed for instructions to be sought or evidence to be obtained from the male members of the Mirning Applicant or the claim group in response. Obvious prejudice would be sustained by the Mirning Applicant.

43    No detail as to the broad substance of the proposed restricted oral evidence was supplied.

44    Lack of trust on the basis that on previous occasions Mr Laing’s evidence has not been ‘respected’ by anthropologists and lawyers was an inadequate reason. Moreover, Mr Laing’s application did not satisfy the principles discussed in Daniel v State of Western Australia (2004) 138 FCR 254 per Nicholson J (at 269) or Western Australia v Ward (1997) 76 FCR 492 per Hill and Sundberg JJ (at 500).

45    I note that Ms Franz of the GLSC has carriage of the Mirning Claim. Ms Jowett is briefed to appear on the joinder application. Neither Ms Franz nor Ms Jowett could appear on the joinder application if Mr Laing’s ancillary application was successful. A male GLSC solicitor would have had to been redeployed to work on the Mirning Claim and become familiar with the file. Male counsel would have also had to been briefed to replace Ms Jowett on the joinder application at a very late stage in the proceedings.

46    I accepted the submissions of Ms Jowett for the Mirning Applicant that granting such orders would prejudice the Mirning Applicant for the following reasons:

(a)    There is in evidence a history of Mr Laing, as part of the Naley family, filing an overlapping claim and seeking to be joined as a party to various proceedings.

(b)    Any new evidence would open up a new area of factual investigation which would require the Mirning Applicant to file evidence in response from Aboriginal and expert witnesses. The Mirning Applicant would have been unable to seek instructions.

(c)    There was no reasonable explanation why Mr Laing did not file the evidence when he had the opportunity to do so on 19 April 2013 when he filed his joinder application.

47    It follows that Mr Laing sought to raise new evidence without specificity which would have placed the Mirning Applicant in an unequal position. The Mirning People would not have been able to challenge Mr Laing’s evidence because it would have been restricted from both Mirning men and women.

48    Mr Laing’s belated ancillary application would inevitably have given rise to a need for the Mirning Applicant and the State to seek a further adjournment to reconstruct their representative team and to take instructions on the evidence. There was no evidence in an admissible format as to law or custom requiring that Mr Laing’s evidence be restricted to non-Aboriginal men only or that the information could only be discussed in camera. There was no evidence of adverse consequences that would flow if the evidence were revealed to women, the public or even Mirning men. This is not to diminish the genuine Aboriginal belief in such matters. What was required, however, as indicated by Hill and Sundberg JJ in Ward (at 500), was evidence on which an evaluation could be made as to ‘the risk to the person giving evidence, culturally and spiritually on the one hand, with the other factors to which reference has already been made on the other’. The mere assertion that disclosure of the evidence might cause some harm to the person giving the evidence would not on its face alone justify an order.

49    For those reasons I declined to grant Mr Laing’s ancillary application.

Costs

50    The Mirning Applicant sought costs on an indemnity basis payable by Mr Laing forthwith whether his application was successful or not in relation to this aspect of the matter. There is an arguable case for consideration of some departure from the usual approach to costs in native title matters. I propose to make programming orders directing the parties to file written submissions not exceeding two pages in length should they wish to do so on the Mirning Applicant’s costs application. The Mirning Applicant should file any additional submissions within seven days on that limited issue and Mr Laing should file any submissions in response within seven days. My present view is that the terms of the order sought by the Mirning Applicant would be extreme.

The joinder

51    I turn now to the substantive matter.

52    It is necessary that Mr Laing establish that he has a relevant interest which may be affected by a determination in the proceedings and that it is in the interests of justice that he should be joined as a party to the proceedings.

53    As previously observed in relation to the first consideration, the interest relied on by a person seeking to be joined as a respondent does not necessarily need to be proprietary, legal or equitable but it must be capable of clear definition, genuine and ‘not indirect, remote or lacking in substance’: see Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 per Black CJ (at 7-8). A person claiming to hold native title rights and interests over an area of land and waters affected by native title determination application would ordinarily have sufficient an interest to justify being joined as a respondent under this section: see for example Bonner on behalf of the Jagera People # 2 v State of Queensland [2011] FCA 321 (at [10]).

54    The uncontested history is that on 18 April 2012, Mr Laing filed the Naley Claim in the South Australia District Registry of the Court. The Naley claim group, that is, the persons on whose behalf the Naley Claim was made, comprised the descendents of Mr Naley. The evidence supporting that claim was annexed to the Naley Form 1 which refers to the Naley Claimants’ connection to the area arising from those claimants’ Mirning descent.

55    The Naley Claim overlapped the Mirning Claim, the Far West Coast Claim and the Ngadju Claim. On 12 June 2012, in response to the Naley Claim, the Ngadju Applicant filed an interlocutory application seeking orders to be joined to the Naley Claim and for the Naley Claim to be struck out pursuant to s 84C(1) NTA. On 7 September 2012, Mansfield J struck out the Naley Claim pursuant to s 84C(1) NTA as the Naley Claim was not made by a native title claim group or by persons authorised by all the persons constituting the native title claim group as required by s 61 and s 251B NTA. This was because the Naley descendents as a group were a subset or a subgroup of the Mirning People comprising the relevant native title claim group. It followed the Naley Claim did not satisfy the requirements of s 61 NTA.

56    Although there is a broad discretion conferred by s 84(5) NTA, the question of whether or not the discretion should be exercised in favour of joining a person as a party will depend on the circumstances of each case including the history of the matter. It must be apparent that there is at least prima facie an interest warranting exercise of the discretion under s 85(5) NTA: Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 per Reeves J (at [8]) and Wakka Wakka People # 2 v State of Queensland [2005] FCA 1578 per Kiefel J (at [6]). A fact to bear in mind is that once a person is joined as a party he or she has the power to veto the process of mediation and conciliation that the NTA favours. This makes it all the more important that the interest is capable of clear definition and of a character that may be affected in a demonstrable way by the determination in relation to the application: Byron per Black CJ (at 7-8). In Isaacs, Reeves J concluded that the interlocutory applicants had shown at least on a prima facie basis that the native title rights and interests which they claimed to hold could be affected by a determination of the application, however, joinder was not permitted. His Honour held (at [18]) that it was now well settled law that:

where a person is seeking to be joined as a respondent to a native title proceeding on the basis that he or she claims to hold native title rights and interests in an area of land or waters that may be affected by a determination in those proceedings … [that is permissible only] if he or she wishes to pursue a personal claim or interest in defensively asserting those native title right or interests or, in other words, to protect them from erosion, deletion or discount.

57    Additionally, as Reeves J noted in Isaacs (at [19]), if a person wishes to obtain a positive determination of native title then the NTA prescribes that the only method by which that can be achieved is by an application under s 13(1) NTA, complying with the requirements of s 61 and s 251B NTA: see also Commonwealth v Clifton (2007) 164 FCR 355 and Moses v Western Australia (2007) 160 FCR 148 (at [18]). A person cannot be joined as a respondent party if his or her purpose in being so joined is to act as a representative to assert native title rights on behalf of other people. That was the position taken by the interlocutory applicant in Isaacs as there was a positive assertion of native title rights and interests rather than the pursuit of any personal interest of protecting native title rights and interests.

58    Applying that rationale to the present circumstance, Mr Laing pursued the Naley Claim in April 2012 on behalf of all the descendents of Mr Naley who identified as Mirning. In the affidavit relied upon by Mr Laing in support of his joinder application, he contends that the report of Dr Draper confirms that the Naley family share Mirning cultural rights and interests. It was submitted that the report states that ‘there is sufficient evidence to confirm that the descendents of [Mr] Naley have Mirning ancestry’. Mr Laing’s affidavit also includes assertion of his personal and particular knowledge at some length but these are without specifics. There are other potential difficulties with Mr Laing’s evidence concerning asserted personal rights having regard to the contended longevity of his knowledge of Mirning culture and country.

59    When one comes to the discretionary considerations, in circumstances where there has been substantial delay by a party seeking to be joined as a respondent, considerations of prejudice arising from such delay are relevant. I note the following observations by Gilmour J in Barunga v State of Western Australia (No 2) [2011] FCA 755 (at [201]):

201    The following factors are relevant to the exercise of the Court’s discretion:

(a)    Proceedings for a determination of native title are proceedings in rem: they bind non-parties. It is also fundamental that an order which directly affects a third person’s rights or liabilities should not be made unless the person is joined as a party: Gamogab v Akiba (2007) 159 FCR 578 at [59], [60] per Gyles J.

(b)    Consideration of the rights and interests of the party joined would lead to a more accurate definition of the native title rights and interests claimed, including by limiting the scope of the rights and interests of an applicant: Akiba and Others on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 2) (2006) 154 FCR 513 at [37].

(c)    A party joined would also be able to protect the native title rights and interests they claim to hold from erosion, dilution, or discount by the process of the Court determining the claims of an applicant: Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [17].

(d)    Whether the interest asserted can be protected by some other mechanism. For example, a factor in the exercise of the discretion in Akiba was that the interests could be protected under the Torres Strait Treaty: Akiba at [38].

(e)    Whether the applicant for the determination would be prejudiced if the party applicant is joined: Worimi Local Aboriginal Council v Minister for Lands for New South Wales (2007) 164 FCR 181 at [37]; and

(f)    The history of the proceedings: Worimi at [5], [34].

60    Further and in relation to delay, s 37M and s 37N FCA relevantly provide as follows:

37M    The overarching purpose of civil practice and procedure provisions

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

…

37N    Parties to act consistently with the overarching purpose

(1)    The parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.

…

61    Even accepting inherent difficulties in progressing some native title applications to trial or consent determination, having regard to limited resources of applicants, respondents and experts, these provisions of the FCA still have work to do in all spheres of the Court’s activities. Otherwise they are simply futile, theoretical statements.

62    Moreover, Mr Laing’s present joinder application was filed after the Naley Claim was struck out on 7 September 2012. While it was before the striking out of his joinder application in the Far West Coast Claim, the evidence discloses that prior to the Naley Claim being struck out, on 16 August 2011, Mr Campbell on behalf of the descendants of Mr Naley wrote to the GLSC seeking confirmation that those descendents had voting rights at the forthcoming Mirning claim group meeting and that the Naley group wished to be represented by two applicants.

63    As the Mirning Applicant submits, the evidence shows that the Naley claimants did not obtain voting rights in either the Mirning Claim or the Far West Coast Claim. After the Naley Claim was struck out on 7 September 2012, Mr Laing then sought to be joined to the Far West Coast Claim in 21 November 2012, which was dismissed by Mansfield J on 30 July 2013: Far West Coast Native Title Claim (No 5). His present joinder application in the Mirning Claim was filed in April 2013. However, in February 2013, Mr Laing affirmed an affidavit in support of the interlocutory application of Mr Robert Claude Lawrie seeking a declaration that ‘that Campbell Law have been appointed as the solicitors’ for the Mirning Claim. On 9 April 2013, I dismissed that interlocutory application by consent. On 7 June 2013, I ordered that Mr Lawrie pay the Mirning Applicant’s costs: A.D. (deceased) on behalf of the Mirning People v State of Western Australia [2013] FCA 565.

64    What emerges from this landscape is that in seeking now to be joined as a respondent party, Mr Laing, rather than seeking to protect his asserted native title rights and interests, for example, in order that he be included in the native title claim group is effectively seeking to confer upon himself the status and privileges of a party in negotiation and mediation. Mr Laing has said it is in the interests of justice to allow him to become a respondent to give him the opportunity to participate in the claim in a meaningful way, which he has been unable to do. More specifically, the point is made in his affidavit dated 19 April 2013 (at [55]) that he considers:

that the claim group has and will continue to undertake negotiations and/or litigation which are against my interests. For example, I understand that an ILUA has been signed between the local government and the WA Mirning claim group. I did not have any input into the ILUA and therefore the rights and interests of the Naley family were not represented.

65    (There is no development of the basic complaint that the Mirning Applicant has made decisions against his interests.) There is, however, a reasonable inference in the context of the history discussed above that Mr Laing wants to make decisions on behalf of the Naley family and, therefore, rightly or wrongly, wants to have the right of veto as a respondent party.

Group acceptance

66    More importantly, perhaps, it should be stressed that being recognised as Mirning, as Mr Laing indicates he is, is a different thing from being a member of the native title claim group. The native title claim group must comprise the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprised in the claim. In Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 Dowsett J held (at [256]) that read together, ss 253, 61(1) and 251B NTA provide that it is the claim group which must determine its own composition and that any final decision in that regard must be taken pursuant to either of the alternative processes identified in s 251B NTA.

67    However this is not to suggest that by some arbitrary or capricious whim, membership is validly excluded on grounds completely unrelated to traditional laws and customs. The process of consideration of acceptance and the basis of such consideration are not irrelevant considerations.

68    In Aplin, Dowsett J spoke of the importance of recognition when assessing who is in and who is out of the claim group and who does the recognising. His Honour noted (at [256]) that:

[a] claim group cannot arrogate to itself the right arbitrarily to determine who is, and who is not a member. As to substantive matters concerning membership, the claim group must act in accordance with traditional laws and customs. As to matters of process the claim group must act in accordance with traditional laws and customs or, in the absence of relevant laws and customs, pursuant to such process as it may adopt.

69    After citing Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 (at 61), Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 110 FCR 244 (at [108]) and Sampi on behalf of the Bardi and Jawi People v State of Western Australia (2010) 266 ALR 537 (at [45]), his Honour noted (at [260]):

[T]hese cases clearly demonstrate that membership must be based on group acceptance. That requirement is inherent in the nature of a society. However the society may accept the views of particular persons as sufficient to establish group acceptance.

70    His Honour concluded on the question of whether a proposed apical ancestor (Minnie) and her descendants were part of the claim group (at 267]-[268]):

[267]    This question is more difficult to answer. As a matter of fact I have held that Minnie identified as a Waanyi person (believing that she was descended from at least one Waanyi parent) and was accepted by Waanyi people at Burketown and at Lawn Hill as being Waanyi. However the case really addresses the entitlement of Minnie’s descendants to Waanyi identity. That question depends upon group acceptance of each of them as being of Waanyi descent which question, in turn, depends primarily upon whether the present Waanyi people accept that Minnie was a Waanyi person. As the applicant asserts, the claim group must determine that question. To date they have refused so to recognize her. I cannot take that decision for them. Nor can I find that during her lifetime, the Waanyi people, as a whole, accepted her as being Waanyi. My findings as to such acceptance are limited to the position as it was at Lawn Hill and at Burketown. It is for the claim group to determine whether that is a sufficient basis for accepting that she was a Waanyi woman, descent from whom is a basis for Waanyi identity. However I should make a few comments about how the matter might be addressed.

[268]    In my view the present problem has arisen in a way which makes it difficult to resolve rationally. At a time when a Native Title determination is imminent, the members of the Minnie family have emerged as possible members of the claim group. There are many of them. For reasons of history, mixed descent and geographical dispersal, many Waanyi people do not recognize the family as Waanyi. There are conflicting views on the subject. It is no doubt difficult for the claim group to marshal the various views in order to assess their persuasiveness.

(emphasis added)

71    Importantly, in my view, Dowsett J added (at [270]) the following:

Although resolution of this matter is primarily for the claim group, any decision may not necessarily be beyond review, given its significance under the Native Title Act. There is, as far as I am aware, no precedent upon which to base a decision as to the availability of judicial relief in the event that persons who, according to traditional laws and customs, are entitled to Native Title rights and interests, are wrongfully excluded from membership of the claim group. Relief may be available, perhaps by analogy to that available for fraud on the power. See Ngurli Ltd v McCann (1953) 90 CLR 425 at 438, Cachia v Westpac Financial Services Ltd (2000) 170 ALR 65 at [74] and Gambotto v WCP Pty Ltd (1995) 182 CLR 432. In the latter case, McHugh J identified the fact that the doctrine had been used as the basis for granting relief against oppression of the minority of company shareholders. See also Alexander v Automatice Telephone Company [1900] 2 Ch 56 at 69 and Menier v Hooper’s Telegraph Work (1873-74) LR 9 Ch App 350 at 353-4. Statutory relief has long been available for oppression of minority shareholders, thus removing the need for further development of equitable doctrine in that area.

(emphasis added)

72    More recently in Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1455, Marshall J reiterated (at [13]) that:

The identity of the claimant group is a matter for it, and is based on the relationships within that group and the manner in which members recognise and associate with one another.

73    It is true to say, as Mr Laing does, that the ‘native title claim group’ is not the group of people who are listed in the Form 1 as being members of the claim group but rather they are the persons who ‘according to their traditional laws and customs, hold the common or group rights and interests comprising a particular native title claimed’. This is the test for the purpose of s 61(1) NTA: see, for example, Rita Augustine v State of Western Australia [2013] FCA 338 per Gilmour J (at [214]-[215]):

214    However, as the State submits, correctly in my view, in such cases it will often be tempting for members of the group to seek separate and conflicting determinations. However, the existence of a native title claim group does not depend upon the contemporary degree of cordiality, or lack thereof, demonstrated by members of a claim group. Rather, a native title claim group is defined by the traditional laws and customs which confer rights and interests in a group. Any definition of a native title claim group should properly be based on an analysis of those traditional laws and customs and not on the contemporary state of relations between members of the group.

215    A claim group is not an entity which is created by a determination application: Turrbal People v State of Queensland [2008] FCA 316 at [15]; Akiba (on behalf of the Torres Strait Islanders of the Regional Seas Claim Group) v Queensland (No 2) (2010) 270 ALR 564 at [913]. By s 61 of the NTA, the native title claim group is the group of “persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed”. The native title claim group has an existence independent of any determination application, which existence depends upon the traditional laws and customs which give the claim group common or group rights and interests. Subject to s 84D of the NTA, a determination application can only be successful if the group identified in the application is in fact the group which holds native title: Hazelbane v Northern Territory of Australia [2008] FCA 291 at [36]; Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1 at [1206]-[1225]; Edward Landers v State of South Australia [2003] FCA 264.

74    Mr Laing asserts that according to Mirning law and customs, he has the right to participate in the claim in common with the members of the Mirning claim group description.

75    He says that those people who identify as 'the Mirning' have common or group rights. His right to participate in the claim is denied as Mr Naley's descendants are not part of the claim group description, not because his interest is not recognised by the Mirning. Mr Laing says that the Mirning People traditionally moved with the seasons and where there was water. Dr Draper’s report makes it clear that the Mirning People did not stay within defined portions of their country but instead roamed across and throughout the country over the border into what is now South Australia. Part of Mr Laing’s rationale for joinder as a respondent is that he should have been accepted in the first place as part of the claim group. He has not been. But as the examination of his history as disclosed by his evidence reveals in the analysis below (under ‘Analysis of Mr Laing’s evidence’) this is hardly surprising.

Does the GLSC have instructions to oppose?

76    As an incidental issue almost, Mr Laing raises the question of whether the GLSC has instructions from the Mirning Applicant to oppose Mr Laing’s joinder application. Robert Lawrie, Bunna Lawrie and David Hirschausen have given evidence that no instructions of that nature have been given. Nor have they been sought. On the other hand, evidence was given by Ms Franz in her affidavit of 5 March 2013 that the Mirning claim group has instructed the GLSC to convene a meeting under s 66B NTA to replace the current Mirning Applicant so that there can be unanimity in instructions. Ms Franz deposes that on 13 December 2012, a Mirning claim group meeting was held at Norseman and passed a resolution that:

the Mirning native title claim group confirms that it wants the GLSC to continue as its legal representative and requests the GLSC to hold a section 66B authorisation meeting as soon as possible.

77    The difficulty of Mr Laing’s submission is that the native title claim group is only formulated of persons which exclude Mr Laing. There is no need to change that position in order for the GLSC, consistent with instructions given to it, to oppose Mr Laing’s joinder application. It is only the Mirning Applicant as formulated is authorised. Mr Laing has never been a member of the claim group. No fresh instructions are necessary to preserve the status quo.

Discretion

78    There is no doubt that the Court has exercised its discretion to join interlocutory applicants as respondents in various cases where they claim to hold native title rights and interests in the claim area. See, for example, Bonner #2 (at [13]) where Reeves J was satisfied on the strength of the affidavits by those seeking to be joined as respondents that they had a relevant interest as persons claiming to hold native title rights and interests over the parts of the claim area. On a basis which was not dissimilar in Worimi Local Aboriginal Land Council v Minister for Lands (NSW) (2007) 164 FCR 181, Bennett J (at [6]-[7]) was satisfied on the basis of an affidavit outlining association of a connection with land and the deponent’s belief that he and his family held native title rights and interests under traditional law and custom and his claimed role as custodian of the lands was sufficient to warrant the exercise of discretion on the basis of a finding that there was sufficient native title interest over the claim area. In that case, the Court followed Byron per Black CJ in concluding (at [16]) that the interest was ‘not indirect, remote or lacking in substance’.

79    The exercise of discretion requires examining not only the nature of the joinder application but also all the surrounding circumstances leading to joinder application in order to form a view as to the interests of justice.

Analysis of Mr Laing’s evidence

80    Against the background of that discussion of principle, it is necessary to consider the detail of the evidence in support of Mr Laing’s justification for joinder. (In doing so I have accepted and adopted a substantial portion of the State’s submissions without repeating attribution throughout.)

81    As the map attached to Dr Draper’s anthropological report reveals, the traditional Mirning country is bisected by the border between Western Australia and South Australia. The Mirning Claim does not extend into South Australia.

82    The substantive application is made by A.D. (deceased) and seven other named applicants on behalf of the Mirning People. Mirning People are defined in the application but the description given does not in any sense extend to Mr Laing. It is established, at least for the purposes of this application, that Mr Laing’s great grandmother, whose identity is unknown, came from the Mundrabilla district of Western Australia within the Mirning claim area. The suggestion on the evidentiary material is that Mr Laing’s great grandfather was believed to have been European and could have been any one of the three founders and co-owners of the Mundrabilla Station between 1884 and 1903. Those persons were William McGill and two brothers named Kennedy, one of whose first name was William.

83    The evidence shows that Mr Laing’s grandfather, Mr Naley was an ‘orphan’ and was ‘adopted’ formally or informally by William McGill and his second wife, Ellen Angel Fairweather. He was treated by them as their own child. The evidence shows that as a boy Mr Naley was sent by his adoptive parents to school in Adelaide. Mr William McGill retired in 1903 from the Mundrabilla Station and went to live in Melbourne together with his wife Ellen and his son (Mr Naley). Mr Naley enlisted in the Australian Army in 1914 and saw active service Europe during World War One and was taken as a prisoner of war. On his release at the end of the War he was sent to England where he married an English woman, Cecelia Karsch.

84    On Mr Naley’s return to Australia, he and his wife settled in a soldier settler block in Winkie, South Australia, close to the border of Victoria. They raised their family there. The youngest of five children was Mabel Audrey Naley, born in Barmera or Berri in South Australia in 1926. She died in Adelaide in 1991. Mabel Audrey Naley was Mr Laing’s mother. She married his father, Lincoln Laing, who was born in China in 1919. He died in Melbourne in 1977. Mr Laing was born in Carlton, Victoria in 1952.

85    The State notes that ‘at least one of the “two prominent Historians with unequalled expertise regarding the Mirning and the Aboriginal and colonial history of the WA/SA borderlands”’ has:

come across several instances in the late 19th and early 20th centuries of white settlers in the far west of South Australia adopting Aboriginal children … and subsequently taking those children back to Adelaide or other cities or towns.

86    In some cases, according to that historian ‘those children subsequently returned to their country but in other cases the children became assimilated into white society and did not return’.

87    As the State notes, evidence adduced by Mr Laing establishes that:

    Mr Laing’s first clear visit to the Mirning country in Western Australia was in July 2006 by which stage he would have been in his 50s. I do note that Mr Laing deposes that:

Uncle Gee took me to the Nullarbor when I was about 18 or 19 years of age We also visited the Nullarbor together on another two occasions. Uncle Gee … showed me Mirning sites ...

However it is not clear from this statement whether the visits were in South Australia or Western Australia.

    There is a different area claimed in the Mirning Claim from the whole of the Mirning traditional lands as described by Dr Draper in his report. Indeed, the Mirning Claim covers less than half of the described traditional Mirning lands. The Mirning Claim lies wholly in Western Australia, terminating at the South Australian border, whereas Dr Draper’s description of traditional Mirning lands extends well into South Australia.

88    A further difficulty is that the Mirning Claim is not made by nor on behalf of the entire group of persons who have described themselves as ‘Mirning’. In 1998, the ‘Mirning People’ made a claim for a determination of native title in Federal Court proceedings WAD 6016 of 1998 in relation to an area of land in the far west coastal area of South Australia. The description of this land was ‘Native Title Claim WC 95/13 and the Whole of the Yellabinna Regional Reserve’ but with certain exclusions. This description appears in Mansfield J’s judgment in Far West Coast Native Title Claim v South Australia (2011) 191 FCR 381 (at [6]). That claim was commenced by six named persons but did not describe the native title claim group in any detail.

89    The evidence discloses that following meetings in 2004 and 2005 between the claimants in WAD 6016 of 1998 and claimants in the partially overlapping the Far West Coast Claim, the two claims were combined with six named applicants. This claim group included both the people who had been previously separate claimants as the Mirning People as well as the Far West Coast People. The claim group is described by listing the names of some 131 individuals and their spouses and/or partners who, together with descendants of those named individuals, comprise the Far West Coast claim group. The individuals in that group include some individuals also in the Mirning claim group. The Far West Coast Claim remains as the only claim over the far west coastal area of South Australia with its western boundary abutting the border between South Australia and Western Australia. As noted above, on 30 July 2013 Mansfield J dismissed Mr Laing’s application to become a party to that claim: Far West Coast Native Title Claim (No 5).

90    It is common ground that pursuant to s 61 NTA a native title claim can only be made by, and can only be authorised by, all of the people who according to their traditional laws and customs hold the common or group rights comprising the particular native title claimed. From the fact that the Far West Coast Claim and the Mirning Claim are made over separate tracts of land, each brought by different named applicants and native title claimant groups, the two claims are intended to be entirely separable and separate from each other. It follows that the two applications, Mirning and Far West Coast, have been drafted in such a way as to give effect to the bisection between the claim in South Australia and the claim in Western Australia.

91    For present purposes it is irrelevant that individuals may identify as ‘Mirning’. According to the two claims, both of which have passed the registration test, the claim group for each claim, as defined in each claim, consists of all of the people who according to traditional laws and customs hold the rights and interests comprising the native title claim in each of those respective and different claim areas.

92    In short, it is not sufficiently to the point that a person such as Mr Laing may describe himself as a Mirning man or be recognised as Mirning by persons outside each respective native title claim group or whether they know the country or practice traditional Mirning activities outside each respective claim area. That recognition and those activities do not amount to constituting status in any portion of traditional Mirning country other than the native title claim into whose native title claim group description they fit. The way in which the Mirning Claim and the Far West Coast Claim respectively have been constituted make it clear that no members of one have any native title rights or interests in the other unless specifically named in each of them.

93    As Mr Laing says, he and his grandfather (Mr Naley) are not part of the Mirning claim group. His repeated assertion of status as a Mirning man and recognition as such by others is insufficient. Mr Laing does not explain the status or authority of those persons who recognise him as a Mirning man and does not reveal whether those persons who so recognise him are members of the Miring claim group or the Far West Coast claim group (or neither of them), nor whether they live in South Australia or Western Australia.

94    Factually, it is unclear from Mr Laing’s supporting affidavit of 19 April 2013 whether his visits to Mirning country with ‘Uncle Gee’ when he was a teenager were in South Australia or Western Australia. It is apparent that his first confirmed visit to Mirning country in Western Australia was in 2006. As the State notes, previous visits to Mirning country in South Australia are not relevant to the present joinder application. Similar, the carrying out of traditional activities is not designated as being either in South Australia or in Western Australia. Again, the reference of the visit to Western Australia only in 2006 would suggest that previous traditional activities were only carried out within South Australia. All these factors fall well short of those which might support the exercise of a discretion for Mr Laing to be joined as a respondent to the Mirning Claim.

95    The actual nature of his interests is also not without difficulty. Mr Laing asserts that he has descended from a full-blooded Mirning woman from Mundrabilla in Western Australia and her son, Mr Naley, also born at Mundrabilla. This is the basis of his asserted unique rights and interests – descent from persons born at Mundrabilla. Mr Laing says that he therefore has an ‘ongoing physical, spiritual and cultural connection with the Native Title Claim Area’, meaning the Mirning claim area. However, the expert support for that is in respect of a much broader Mirning area. The Mirning lands described by Mr Laing’s expert evidence go well beyond the claim area. As previously observed, it was significant that Mr Laing’s only apparent visit to the Mirning claim area was in 2006, with other visits being to the Far West Coast claim area.

96    Although he contends that he has ‘been given cultural responsibility for sites and objects near Mundrabilla’ and has a direct cultural interest not shared by other members of the Mirning claim group, there was no reliable support for this assertion. There is no explanation as to who gave him this responsibility nor or what authority it was vested in him nor when nor what the responsibility is. This is a matter which would call for explanation, having regard to the fact that his ‘Uncle Gee’ (Edgar Naley) was born in or near Winkie in eastern South Australia and had, at least on the state of the evidence, no substantial connection with, nor authority over, Mundrabilla, although he did visit Mundrabilla at some stage the 1970s or 1980s.

97    In the end, there was nothing more than an assertion by Mr Laing that he is a Mirning man and that he has been acknowledged as such by an undefined portion of the Mirning community. Having regard to this examination of Mr Laing’s evidence, I consider the proper inference is that, to the extent he had connection with Mirning land it was in the Far West Coast claim area in South Australia. By the time he first visited the Mirning claim area in Western Australia, he was then in his 50s.

In summary, no clear definition

98    In those circumstances, Mr Laing’s interest is not capable of clear definition as described by Black CJ in Byron (at 7-8). While Mr Laing does establish that his grandfather was born in the Mirning claim area 129 years ago, I accept the State’s submission that there was a permanent departure by Mr Naley from the claim area 110 years ago such that any connection with the claim area on the part of Mr Laing is remote. Any visit to the Mirning claim area by Mr Laing was over 100 years after his grandfather’s departure.

99    Although Mr Laing points to ill-treatment by the Mirning Applicant in the sense that he is allowed to attend claim group meetings but he is not given any speaking or voting rights, such circumstances would accord with Indigenous recognition that he has elements of Mirning identity but not connection per se to the Mirning claim area.

CONCLUSION

100    In those circumstances it cannot be in the interests of justice for Mr Laing to be made a respondent to the Mirning Claim.

101    It follows, in my view, that Mr Laing should not be made a respondent to the Mirning Claim as he has no relevant interest which could be affected by a determination. The application for joinder as a respondent is dismissed.

102    As previously indicated, I will make programming orders for the filing of short written submissions on the question of the Mirning Applicant’s application for indemnity costs.

Associate:

Dated:    3 October 2013