FEDERAL COURT OF AUSTRALIA

Jacob v State of Western Australia [2014] FCA 1106

THE COURT ORDERS THAT:

1.    Each of Margaret Todd, Lindsay Todd and Phyllis Harris (Todd) be joined as respondents to this proceeding.

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

REASONS FOR JUDGMENT

NATURE OF the APPLICATION

1    Margaret Todd, Lindsay Todd and Phyllis Harris (Todd) (the Todds) apply for orders that each of them be joined as respondents to this proceeding. Joinder is opposed.

2    For reasons expressed below, while the evidence in support of the application is presently slim, I propose to grant the application.

GOVERNING PRINCIPLES

3    For the purposes of joinder applications, s 84 of the Native Title Act 1993 (Cth) (NTA) governing principles relevantly provides:

84    Parties

Coverage of section

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

Applicant

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

…

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.

…

4    The relevant principles applicable to the application of the procedural power given by s 84(5) NTA are well settled. The Court must consider (a) whether the person has an interest; (b) whether that interest may be affected by a determination in the proceedings; and (c) whether, in any event, in the exercise of the discretion given to the Court by s 84(5) NTA, the Court should join the party: Barunga v State of Western Australia (No 2) [2011] FCA 755 per Gilmour J (at [164]) and Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 per Mansfield J (at [26]). While technically the current form of s 84(5) NTA which refers to ‘the interests of justice’ does not apply to these joinder applications as the Yindjibarndi #1 proceeding was commenced prior to 15 April 2007, it has been noted by the Court that the third requirement requires the Court to take into account the interests of justice, and the new statutory wording does not change the judicial task. As to the first two requirements, (as I previously noted in AD (deceased)) (at [4])), Mansfield J in Far West held (at [28], [31]-[35]):

28    … 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.

…

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] is instructive in this regard … 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.

EVIDENCE IN SUPPORT OF THE APPLICATION

5    Evidence in support of the application comes in the form of three very similar affidavits. Phyllis Harris (Todd) explains that her mother was Lila Hicks, born in Yindjibarndi country on Cooya Pooya station inland from Roebourne. Her father was Billy Barlow, also known as Herbert Todd. Her grandmother’s name on her mother’s side was Charlotte Hicks. Charlotte died before Phyllis Harris was born but Phyllis learned her name and about her from her mother, Lila. Charlotte was born on Yindjibarndi country around the time pastoralists started settling there and died in Roebourne. According to Phyllis, Charlotte’s mother was a Yindjibarndi woman, as explained to her by her mother. Two different names were given for the great grandmother, Nibbin and Miggiebung. Phyllis explains that a person will be Yindjibarndi if they follow their mother or father.

6    Phyllis contends that other people recognise her and her family as being Yindjibarndi, for example, Yindjibarndi elders who were also key informants for the ‘Yindjibarndi side’ of the Ngarluma/Yindjibarndi determination have signed a letter dated 17 December 2013 (on Wirlu-murra Yindjibarndi Aboriginal Corporation letterhead and witnessed by a Justice of the Peace) in the following terms:

…

TO WHOM IT MAY CONCERN

We, the undersigned, are senior members of the Roebourne Aboriginal community. We have been involved with the Yindjibarndi people of Roebourne all our lives and have a detailed knowledge of the families that make up the Yindjibarndi community. Each of us has had a Yindjibarndi parent and/or spouse.

We all remember Fred Hicks and the work he did for the town of Roebourne. We also remember him as a Yindjibarndi man who was part of the Yindjibarndi community. Fred married Molly Thomas, a Ngarluma woman, and they had eight children who are part of the Yindjibarndi community.

We remember Fred’s sister, Lila Hicks, who was also part of the Yindjibarndi community. Lila married Herbert Todd (also known as Billy Barlow) and they had six children who are part of the Yindjibarndi community.

Some of us remember their mother, Charlotte Hicks (nee Lockyer) and her brother George Lockyer, who were Yindjibarndi people.

Yours sincerely,

BRUCE MONADEE

SYLVIA ALLAN

BERRY MALCOLM

May Adams

Diana Smith

MAUDIE JERROLD

SIMMY HORACE

Anne Jacobs

… (sic)

7    Phyllis was born in Roebourne and has lived and worked there all of her life. She is an elder in the family and a senior member of the Yindjibarndi Aboriginal community. She knows the Yindjibarndi #1 claim area as it is part of traditional Yindjibarndi country. She knows this from her discussions with her mother, aunties, uncles and other members of the family. She has continued to observe Yindjibarndi culture and law, has a keen interest in the role and knowledge that Yindjibarndi women play in the Yindjibarndi community and has tried to pass the knowledge on to her children and other members of the family. She contends that as Yindjibarndi People, her family and she have rights in the Yindjibarndi #1 claim area, along with all the other Yindjibarndi People.

8    Phyllis Harris has also applied for membership to the Yindjibarndi Aboriginal Corporation (YAC) on a number of occasions. She says that all of her applications have been rejected without reason being given. Her most recent application was subject to a meeting with the YAC Board. Her application of 6 November 2011 was rejected on 8 February 2012 and again at a meeting held on 30 November 2013 and 10 January 2014. This is despite the fact that two Yindjibarndi elders, Sylvia Allan and Diana Smith, confirmed their view that she was Yindjibarndi. She notes that other members of her family have also had their membership applications rejected.

9    Phyllis Harris says that as a consequence of not being members of the YAC and of Nibbin/Miggiebung not being listed in the Yindjibarndi #1 claim, she and her family members have been denied entry to YAC meetings, which are often held as Yindjibarndi community meetings which purport to represent all Yindjibarndi People, not just members of YAC. On 24 March 2012, for example, she was excluded from the Yindjibarndi #1 claim group community meeting, being told that she would not be able to enter the meeting and not be entitled to vote. She asserts that YAC representatives at the registration desk informed her that her name was not on the genealogy and therefore she could not identify her connection with apical ancestors.

10    She gives several examples of this which I do not propose to analyse for present purposes. Her account of those matters is disputed.

11    The evidence of the two other Todds is in similar form.

12    Diana Smith and Sylvia Allan have both sworn affidavits in the same terms which say that the Todds, in their view, are Yindjibarndi People. Each of them also confirms that they are themselves members of the elders’ sub-committee set up to consider applications for membership of YAC.

EVIDENCE IN RESPONSE

13    The principal Yindjibarndi applicant (to whom I will refer to as ‘the Yindjibarndi’) relies on a number of affidavits in response.

14    Mr Robin Stevens is an experienced anthropologist working with the Yindjibarndi community. He commenced working with the Yindjibarndi People in 1995 and later did desktop research and field work for the Ngarluma/ Yindjibarndi native title claim determined in 2003. Mr Stevens points out the common ground that each of the three Todds have claimed to be Yindjibarndi through their mothers’ lineage, that is through their mother, Lila, her mother, Charlotte and her mother, Nibbin (possibly also called Miggiebung). He has not yet been able to undertake a detailed or comprehensive review of the Yindjibarndi genealogies because there is not as yet an undisputed list of membership applications to be referred to the anthropologist. But he did undertake a preliminary review of one Yindjibarndi genealogy held by YAC. From that it seemed clear that Lila, Charlotte and Nibbin (or Miggiebung) were indeed the ancestors of the Todds but it was not clear that those ancestors were Yindjibarndi. His impression is that none of the family members listed appeared to relate back to an apical ancestor recognised in the Yindjibarndi #1 claim. It was likely, in any event, that additional information and research may be needed to determine any genealogical connections to a Yindjibarndi ancestor.

15    Mr Stevens responds to the evidence of the Todds about their rejection for voting at the meeting of 24 March 2012. While there are disagreements about these accounts, little, if anything, turns for present purposes on that disagreement and for present purposes it is not something that I can resolve in the absence of any oral evidence.

16    In relation to the elders’ sub-committee meetings, Mr Stevens notes that at no time did either Diana Smith or Sylvia Allan, who were the two elders who supported the Todds’ claims, answer ‘Yes’ in respect of any of the applications for membership of YAC by any of the Todds. On the strength of that, his preliminary view is that Diana Smith and Sylvia Allan were not convinced that any of the Todds were Yindjibarndi.

17    There is much detail developed for both the Todds and the Yindjibarndi on these meetings. It is not possible at this juncture to determine what was resolved at these sub-committee meetings, but it must be said that the support for the Todds seemed to be quite limited.

18    Between the affidavits of Mr Stevens and the affidavits in response by Ms Smith and Ms Allan, Mr Irving also swore an affidavit. He has been involved as counsel in the Yindjibarndi #1 claim (which was originally filed in July 2003) since 2008, was also involved in, and aware of, the previous determination of native title made in favour of the Yindjibarndi People and is also aware of the proceedings in the Supreme Court of Western Australia in which YAC is a defendant.

19    The main point made by Mr Irving is that the Todds have not advanced their contentions despite having the opportunity to do so over the years. The Yindjibarndi #1 claim (Main Application) has been ongoing for some 11 years. Prior to this application for joinder by the Todds, however to Mr Irving’s knowledge, there were no records to suggest that they or anyone acting on their behalf had ever advised the Yindjibarndi or the YAC that they were entitled to be included in the Yindjibarndi #1 native claim group. There is no documentary evidence ever provided in support of such a claim.

20    Mr Irving identifies that although it is designated the ‘Yindjibarndi #1 native title claim’, the Main Application is in fact the second native title determination application made on behalf of the Yindjibarndi People. The first application, which was made jointly with the Ngarluma People on 8 June 1994, was the subject of a determination made by Justice Nicholson on 3 July 2003 in Daniel v State of Western Australia [2003] FCA 666 (Primary Determination). A subsequent determination was made by Nicholson J on 2 May 2005 in Daniel v State of Western Australia [2005] FCA 536. A determination was then made by the Full Court on 7 June 2007 in Moses v State of Western Australia [2007] FCAFC 78.

21    In addition, another native title determination application, (Wong-Goo-TT-OO Native Title Claim) which overlapped the joint Ngarluma/Yindjibarndi native title claim, was also the subject of findings in the Primary Determination and the subject of a determination made by the Full Court in Dale v Moses [2007] FCAFC 82. The members of the Wong-Goo-TT-OO Native Title Claim group, who were the third applicants in the Primary Determination, included Phyllis Harris, Margaret Todd and Terrence Todd. Although the joint applicant for the Wong-Goo-TT-OO Native Title Claim claimed to hold native title over the land and waters by virtue of the occupation, use and enjoyment of the ancestors of the native title claim group, those ancestors were not identified in the Form 1. In the Primary Determination, Nicholson J dismissed the Wong-Goo-TT-OO Native Title Claim. On a subsequent appeal, the Full Court observed that the Wong-Goo-TT-OO appellants ‘claimed that they were differentiated from the Ngarluma people and the Yindjibarndi people’. All of the appeals from the decisions of Nicholson J were dismissed.

22    I also summarily dismissed a second claim by the Wong-Goo-TT-OO Native Title Claim group over the town sites of Karratha, Point Samson and Wickham in Dale v State of Western Australia [2009] FCA 1201 on 23 October 2009. An appeal from that decision was dismissed and special leave to the High Court refused.

23    Mr Irving also deals with the disputes about what took place at the various elders’ sub-committee meetings. According to Mr Irving, the Todds have never attended nor sought to attend any of the YAC meetings and have attended only two Yindjibarndi community meetings arranged by YAC, namely, (a) the authorisation meeting conducted on 24 March 2012 for the purposes of an application under s 66B NTA; and (b) the authorisation meeting conducted on 18 June 2013 for the purpose of a proposed Indigenous Land Use Agreement (ILUA).

24    Mr Irving makes the same point as Mr Stevens, namely, that the question of whether any of the Todds is entitled to be regarded as a member of the Yindjibarndi People remains unresolved. It is a question that is currently under consideration by the YAC Board as a result of an agreement reached between the parties to the Supreme Court Proceeding (Deed of Settlement and Release). The agreement requires the YAC Board to consider, amongst others, some 237 applications for membership of the YAC, forwarded to the YAC by the solicitors for the plaintiffs in the Supreme Court Proceeding. The Todds are included in those 237 applications. Phyllis Harris and Margaret Todd first applied on 6 November 2011 and then reapplied on 8 February 2012. Lindsay Todd first applied for membership on 8 February 2012.

25    Mr Irving confirms that the membership applications were considered by the YAC Board at a meeting on 5 May 2012, however, the directors were unable to agree on the applications and asked the YAC Chairman to write to the applicants and invite them to meet with the YAC Board to discuss the membership applications. Although the invitations were sent to the Todds, none of them responded. Instead, the membership applications were resent to YAC on 30 August 2013 as part of a batch of membership applications sent under a covering letter from the solicitors for the plaintiffs in the Supreme Court Proceeding requesting that the applications be considered in accordance with the terms of the Deed of Settlement and Release. It is pursuant to that deed that the elders’ sub-committee was established by the YAC Board in or around October 2013. It comprised four elderly Yindjibarndi women, Ms Allan and Ms Smith, each of whom was nominated by the plaintiffs in the Supreme Court Proceeding, and Ms Pansy Sambo and Ms Joyce Hubert who were nominated by the defendants in that proceeding. Their agreed role under the Deed of Settlement and Release was to consider all applications for membership in the YAC received after 18 August 2013 until the notification of the next annual general meeting and to advise the YAC Board whether or not, in respect of each application, all the members of the elders’ sub-committee agreed. Where there was disputation it was to be referred to Mr Stevens or to the archivist, Mr Mark Chambers, for determination. A further requirement of the Deed of Settlement and Release is that YAC is obliged to deal with each membership application either in accordance with the agreed recommendation of the elders’ sub-committee, or, where there has been referral to the anthropologist or the archivist, in accordance with the determination of either of those persons. Mr Irving makes the point that the records of the elders’ sub-committee meeting are quite indeterminate at best in relation to the Todds. It is that observation to which the affidavits of Ms Allan and Ms Smith respond.

Objections

26    As a post script to this evidentiary summary, I should record that several objections were raised in connection with observations made by Mr Stevens concerning the events at the 24 March 2012 meeting and the elders’ sub-committee meetings. The objection is that he expresses a statement of opinion as to the weight of evidence contrary to s 76 of the Evidence Act 1995 (Cth) (Evidence Act) and, secondly, that he expresses an opinion as to the meaning of a document, which is not based on specialised knowledge contrary to s 76 of the Evidence Act.

27    I uphold the first objection in relation to [15] of Mr Steven’s affidavit which comments on the accuracy of assertions made in the affidavits of the Todds, but little turns on this because, in any event, he gives his account of what transpired.

28    I also uphold the objection to [17] of his affidavit where he purports to construe the effect of answers given by Ms Smith and Ms Allan regarding many membership applications, in particular, those of the applicants for joinder. Again, nothing turns on this in light of my view regarding the appropriate resolution of this application.

29    Objection is also taken to [13]-[15] of Mr Irving’s affidavit affirmed on 1 April 2014, which describes the outcome of previous court proceedings and which is said to be in the form of a submission. I disallow this objection. It is plainly a simple narrative readily verifiable from the reported and cited decisions.

30    I also disallow the objections to [21], [23] and [24] of the Mr Irving’s affidavit, which are simple summaries of what appears in documents which have been produced. I accept that the documents are the best evidence and speak for themselves.

31    There is also an objection to [27] of Mr Irving’s affidavit, which is in these terms:

It is my understanding that the result of meeting referred to in the notice attached … took place and that the proposed resolution for the inclusion of Charlotte Hicks (nee Lockyer) as a Ngarluma ancestor was passed, with the result if the Court allows the proposed amendment to the Ngarluma Townsites native title claim group description, she will be regarded as an apical ancestor for the purposes of that native title claim.

32    This is objected to on the grounds that it would constitute a submission. It does not. It is simply an expression of Mr Irving’s understanding of the position from his close involvement. I disallow this objection.

BASIS OF APPLICATION

How the Todds’ interests may be affected

33    The Todds argue that the interests they seek to protect through joinder as respondents are native title interests which arise on the basis that they are also Yindjibarndi People. According to the traditional laws and customs of the Yindjibarndi People, they argue they hold (together with members of the native title claim group), the common or group rights comprising the particular native title claimed. Their interests may be affected by a determination in these proceedings because the native title claim group in the Form 1 is described by reference to a number of apical ancestors that does not include Nibbin/Miggiebung amongst them and the Todds do not claim to be descended from any of the listed apical ancestors.

34    The Todds argue that if the Court determines that native title is held by the ‘Yindjibarndi People’, as was the case in the Ngarluma/Yindjibarndi determination, then the question of whether or not the Todds are Yindjibarndi People would remain uncertain. As they are not currently accepted as being Yindjibarndi by the registered native title body corporate, they are likely to be continued to be denied recognition and will not be common law holders of native title within the claim area. Their claim to be common law holders will be forever foreclosed, unless that result is changed on appeal or through a revision application under s 13 NTA.

35    If the Todds are joined, the only role they will play in the proceedings will be to seek to protect their interests by leading evidence and making submissions with a view to the Court determining that they are part of the common law holders of native title, preferably by including Nibbin/Miggiebung as an apical ancestor in the description of the common law holders in any determination.

36    As a matter of principle, in my view, joinder for this purpose is not inappropriate: Commonwealth of Australia v Clifton (2007) 164 FCR 355 (at [37]); A.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 2) [2013] FCA 1000 (at [56]-[57] and [64]).

37    The Todds do not seek any final determination at this interlocutory stage as to whether or not they are members of the Yindjibarndi People, nor would that be appropriate. It is not possible at this stage to weigh the competing evidence, nor is it necessary to resolve any factual conflicts. The only question is whether the evidence demonstrates that the Todds have a prima facie case that they are members of the Yindjibarndi People. The Todds argue that such a prima facie case clearly emerges from their affidavits as well as the affidavits of Ms Smith and Ms Allan. There is even support for it, they argue, in Mr Steven’s affidavit and from the Primary Determination where Nicholson J said (at [1453]):

1453    The Hicks claimants claim native title rights through their father, Fred Hicks, and their mother, Molly Hicks (nee Thomas). Fred Hicks is descended from his father, Jack Hicks and his mother Charlotte Hicks (nee Lockyer). It is asserted that Jack Hicks’ mother was Winningbung, a full blood Aboriginal, and that Charlotte Hicks’ mother was Mikibung. There was considerable confusion among the third applicants as to the actual structure of the genealogy. Jack Hicks and Charlotte Hicks were said to be Yindjibarndi. Pansy Hicks (N) and Thomas Mowarin (N) said Fred Hicks was Yindjibarndi (at T 1628; 2588). Molly Hicks was Ngaluma, as was her mother, Rosie Clifton. Rosie Clifton’s mother was Woodbrook Mary. Molly Hicks’ sister was Alice Douglas, mother of the Douglas claimants.

38    There are other potential issues which do not realistically arise at this point in my view. For example, whether or not the Todds were members of the Wong-Goo-TT-OO Native Title Claim group and whether or not Charlotte Hicks or Nibbin/Miggiebung are said by some to be Ngarluma ancestors (as noted by Mr Irving) are certainly issues to be explored subsequently, but are not relevant at this stage to the determination of the interlocutory joinder application. They do not, for present purposes, sufficiently seriously detract from the asserted prima facie case that all those persons were and are members of the Yindjibarndi People.

39    As is evident from the Primary Determination, Nicholson J found (at [390]) that the Wong-Goo-TT-OO were not a traditional group, and the remainder of the Wong-Goo-TT-OO claim has since been struck out. Nevertheless, his Honour recognised in the Primary Determination that members of that claim group, including the Todds, may have native title rights as Yindjibarndi People (at [378] and [508]-[509]).

Interests of justice

40    The Todds stress that they have already sought to have their interests recognised and protected through non-curial processes, to no avail. All parties accept that it is theoretically possible that the Todds could be accepted as members of the Yindjibarndi and YAC. Their interests in respect of the Yindjibarndi #1 claim area, however, would remain at risk unless or until the claim itself is amended to include them in the native title claim group.

41    In terms of prejudice, the Todds argue that the trial is still a year or so away and detailed programming orders have only just been made. If the Todds are joined, they will be in a position to comply with them and thus not impede the proper progress of the case to finalisation. Nor is it the Todds’ intention or in their interests to delay the proceedings. To the contrary, they wish to support the claim, and but for the issue of claim group membership, they have common interest with the Yindjibarndi.

NATURE OF THE OPPOSITION TO THE JOINDER

42    As is clear from the evidence summary, the Yindjibarndi contend that the Todds’ evidence is insufficient to establish that they have an interest, or that that interest may be affected by a determination in the proceedings.

43    More specifically, which is the pivotal point of this application, the affidavit evidence in support of the Todds’ application is weak. The Yindjibarndi argue that it is insufficient or of insufficient weight and credibility to justify the Court concluding, even on a prima facie basis, that any of the Todds has an interest in the relevant sense laid down by the Full Court in Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 or one that may be affected a determination in the proceeding. According to the Yindjibarndi, the virtually identical affidavits of each of the Todds contain no more than personal assertions that both Charlotte Hicks and Nibbin/Miggiebung were Yindjibarndi. They note that there is no documentary, anthropological or other objective evidence to support those assertions. The Yindjibarndi contend that, indeed, the evidence is to the contrary.

44    In particular, the Yindjibarndi say the evidence demonstrates that:

(a)    the Yindjibarndi #1 claim group comprises the descendants of 31 apical ancestors and Nibbin/Miggiebung is not amongst those;

(b)    those 31 apical ancestors were the same apical ancestors the subject of the Primary Determination made by Nicholson J in 2003 and 2005;

(c)    the Wong-Goo-TT-OO claimants were originally involved in the Ngarluma/Yindjibarndi claim which began as long ago as 1994, but in August 1998 they lodged their own separate application which was consolidated with the Ngarluma/Yindjibarndi claim to the extent of any overlap in May 1999, and since that consolidation, until the Primary Determination was made, none of the joinder applicants sought to advance any claims or arguments either that:

(i)    they were Yindjibarndi People, entitled to be part of the claim group in the Primary Determination; or

(ii)    Nibbin/Miggiebung should have been included among the apical ancestors in relation to the Primary Determination;

(d)    in the proceedings leading to the Primary Determination, all three of the Todds or, alternatively, at least Phyllis Harris and Margaret Todd, were applicants or members of the Wong-Goo-TT-OO claim group in an opposing native title claim of the same, or parts of the same, area claimed by the Yindjibarndi. The Wong-Goo-TT-OO claim was dismissed and the dismissal upheld by the Full Court;

(e)    the case put before the Court in the Wong-Goo-TT-OO application, and advanced before the Full Court, was that the members of the Wong-Goo-TT-OO were differentiated from the Yindjibarndi with a separate and distinct law from the Yindjibarndi;

(f)    although Nicholson J acknowledged that the dismissal of the Wong-Goo-TT-OO application was without prejudice to any rights that they may possibly have as Ngarluma or Yindjibarndi People to hold native title rights and interests, this is not to say that they did have those rights. His Honour specifically stated (at [42]) that ‘no reference should be made to them as being a subgroup of either of the Ngarluma or Yindjibarndi …’;

(g)    despite these comments as to the potential for the Wong-Goo-TT-OO applicants to seek to assert themselves as Yindjibarndi, none of the joinder applicants (or any of their members or families) took any steps to do so until very recently;

(h)    it was only in late 2011 and early 2012 that the Todds sought to become members of the YAC, a condition of which necessarily is that they be Yindjibarndi persons;

(i)    during the period from when the Yindjibarndi #1 proceeding was commenced in July 2003 until recently, none of the joinder applicants ever attended or sought to attend Yindjibarndi community meetings, and when they eventually attended, they did so as a part of the Wirrlu-Murra group, attending the authorisation meeting for the purposes of s 66B NTA application held on 24 March 2012 (being the subject of the Court’s decision in February 2013: NC (deceased) v State of Western Australia (No 2) [2013] FCA 70; and another authorisation meeting for the purpose of authorising a proposed ILUA held on 18 June 2013.

45    There has been no unanimous agreement by the elders’ sub-committee that any of the Todds could meet the membership requirements under the YAC Rule Book, including the requirements that they be Yindjibarndi persons who hold in common the body of traditional law and culture governing the determination area and identify as Yindjibarndi.

46    The Yindjibarndi rely on the fact that at the meeting of the elders’ sub-committee on 10 January 2014, both Ms Allan and Ms Smith recorded a ‘N’ against the name of Phyllis Harris, as did the other two members of the elders’ sub-committee. In relation to Lindsay Todd and Margaret Todd, Ms Allan and Ms Smith recorded a ‘N?’. The two other members recorded a ‘N’.

47    The Yindjibarndi argue that the true facts of the matter stand in stark contrast to the ‘bald assertions of opinion’ made by the Todds. The Yindjibarndi argue that the opinions of Ms Allan and Ms Smith ‘should be given no weight (even for the purposes of establishing a prima facie case) given that the contents of their 17 December 2013 letter and their Affidavits are completely contradicted by the documentary records of the Elders’ Sub-Committee meetings’. The Yindjibarndi argue that there is no evidence about the status of the signatories to the 17 December 2013 letter, nor has any affidavit evidence been sworn by such persons in this proceeding.

48    Additionally, it is argued for the Yindjibarndi that the suggestion that Nibbin/Miggiebung was a Yindjibarndi person is contradicted by the fact that in February 2014 the Ngarluma People, in respect of a further native title determination application which they made, approved an amendment to the apical ancestors for that claim group to include ‘Charlotte Lockyer’ as a Ngarluma ancestor. The Yindjibarndi point to the finding of Nicholson J that the Ngarluma People and the Yindjibarndi People are two separate and distinct societies. The Yindjibarndi also rely upon the affidavit of Mr Stevens, which does not support the claims made by the Todds.

49    The Yindjibarndi submit, therefore, on the objective evidence which should be preferred to the broad assertions made by the Todds, that no prima facie case is established. They contend that a prima facie case is best considered as being analogous to the way in which that term has been regarded in applications for interlocutory injunctions, namely, that the applicant ‘must show a sufficient likelihood of success to justify in the circumstances’ the granting of the relief sought in the application, namely in this instance, an application for joinder.

50    The Yindjibarndi also argue that even if the Todds do establish the first two elements of an interest and an interest to be affected, the Court’s discretion should not be exercised. I accept the submission that factors which the Court have identified as being relevant in such cases, as summarised by Gilmour J in Barunga (at [201]), include:

(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].

51    I also accept the submission that other discretionary factors mentioned by the Court include:

(a)    pointing to a clear and legitimate objective that the joinder applicant hopes to achieve by being joined: Far West (at [37]);

(b)    unexplained delay in making the joinder application: Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942; Wakka Wakka People # 2 v State of Queensland [2005] FCA 1578 (at [7]); and Gamogab v Akiba (2007) 159 FCR 578 (at [59]-[61]);

(c)    ensuring that a flood of individuals as members of a communal group who claim to have native title rights and interests over the claim area or part thereof is prevented: Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 (at [26]); and

(d)    avoiding prejudice to both the existing parties and the Court: Isaacs (at [34]).

52    The Yindjibarndi contend that rather than seeking joinder as respondents to the Yindjibarndi #1 proceeding, the Todds could approach the Yindjibarndi or its agent, YAC, and provide evidence supporting their claims to be Yindjibarndi through their apical ancestor, Nibbin/Miggiebung, and ask that this be determined one way or another by a qualified anthropologist. Neither Yindjibarndi nor YAC has to date indicated that Nibbin/Miggiebung cannot be included if she is demonstrated to be Yindjibarndi, although the inclusion of Charlotte Lockyer as an ancestor in the current Ngarluma claim would require explanation. The Yindjibarndi argue that the identity of the apical ancestors of the Yindjibarndi should be a matter for the Yindjibarndi to investigate and determine, rather than being decided by the Court.

53    There is, therefore, no legitimate object, the Yindjibarndi argue, that the Todds can seek to pursue by being joined. Further, they contend that there is no explanation at all for the ‘inordinate delay’ in making the applications for joinder.

ANALYSIS

54    In my view, the Yindjibarndi raise some good points and the application by the Todds is borderline, but the basis upon which the Todds seek to participate has been clearly articulated and can be accommodated within the existing programming orders. It is true that the evidence in support of the Todds’ interest is very slim but, nevertheless, it is based on the Todds’ own oral history concerning the identity of their ancestors, Charlotte Hicks and Nibbin/Miggiebung. It is also based on their own self-identification and history as set out in the Todds’ affidavits in support of the application. This much is fairly conventional in such an application and in proving matters of this nature in native title litigation, as provided for in s 72 and s 78A of the Evidence Act.

55    There is additional direct evidence supporting the claim in the form of the affidavit material from Ms Smith and Ms Allan, from the conclusions in the Primary Determination (at [1453]) and even the observations in Mr Stevens’ affidavit (at [10]) (at least in the sense of not eliminating the possibility which Mr Stevens has explored). As Mr Stevens says (at [10]), he has not as yet undertaken a detailed or comprehensive review of the Yindjibarndi genealogies because there is not as yet an undisputed list of membership applications to be referred to the anthropologist.

56    Have they established a prima facie case? The Yindjibarndi argue that the notion of establishing a prima facie case in relation to s 84(5) applications is best considered as being analogous to the way in which the term is regarded in applications for interlocutory injunctions, namely, that the applicant must show a ‘sufficient likelihood of success’ (emphasis added), rather than the approach taken by Reeves J in both Isaacs (at [9]) and Edwards on behalf of the Wongkumara People v State of Queensland [2014] FCA 282 (at [31]). Reeves J applied what the High Court had said about the expression ‘prima facie’ in North Ganalanja Aboriginal Corporation and Another and The State of Queensland and Others (1996) 185 CLR 595 (at 615-616), where the Court said that prima facie means ‘[a]t first sight, on the face of it; as it appears at first sight without investigation’ (emphasis added). The Yindjibarndi say this description should not be followed here because the context in which the High Court made those observations is distinct and different from the contested process involved in a joinder application under s 84(5) NTA. (The Yindjibarndi also argue that even on the test adopted by Reeves J, the Todds’ material falls short.)

57    I am inclined to adopt the same approach as Reeves J until directed otherwise by a Full Court. I have identified the evidence supporting a prima facie case as to the first two elements. It is not a strong case at present. As against that, the prejudice to the Yindjibarndi in permitting the joinder of the Todds as respondents is limited. There may be additional time and costs involved. Having regard to the very extensive journey to date, those factors are not large. The Todds have also been on that journey. If the evidence in their case is not enhanced (for example, anthropologically), the journey may come to an end. But realistically, given the reasons the Yindjibarndi have advanced as to why the Todds should not be joined, one could not be particularly optimistic about the extra curial processes achieving a favourable outcome on joinder for the Todds. I do not consider they should be shut out at this juncture.

58    Further, many of the arguments advanced by the Yindjibarndi would find strong support in well-funded, well-resourced litigation. It is a regrettable fact, however, that intra-indigenous disputes are common in native title. Nevertheless, what ultimately has to be tested is whether or not traditional laws and customs are satisfied. As noted by Gilmour J in Rita Augustine v State of Western Australia [2013] FCA 338 (at [214]-[215]):

214    … [I]n 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.

59    It is significant that the Todds are not asserting that native title is held by a different society or group to that asserted by the Yindjibarndi, but simply contend, together with some independent corroboration, that they also should be within that society or group.

60    There are a number of disputes that cannot possibly be resolved on an application of this nature. While the evidence of the Todds is perhaps at the lower end of the spectrum of evidence which might support a favourable application, at this juncture it is at least sufficient to get the application over the line, but, as indicated earlier, difficulties will be encountered in the longer term if the evidence is not enhanced.

conclusion

61    For these reasons the application for joinder will be allowed and the following order is made:

1.    Each of Margaret Todd, Lindsay Todd and Phyllis Harris (Todd) be joined as respondents to this proceeding.

Associate:

Dated:    14 October 2014