FEDERAL COURT OF AUSTRALIA

Lander v State of South Australia [2016] FCA 307

ORDERS

THE COURT ORDERS THAT:

1.    Raelene Warren and Gregory Warren cease to be respondents to this proceeding and the title to the proceeding is no longer to record them as the Fourth and Fifth Respondents respectively.

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

REASONS FOR JUDGMENT

WHITE J:

1    This judgment concerns an application for the removal of two parties from the native title proceedings known as Dieri No. 3.

Introductory matters

2    On 6 June 2014, the applicants (Mr Lander, Ms Gepp-Kennedy, Ms Stuart, Ms Kemp and Mr Mungerannie (now deceased)) filed an application for the determination of native title in respect of land adjoining the eastern boundary of Lake Eyre North (the Claim Area). The application indicates that it is made on behalf of all persons in the Dieri Native Title Claim Group. The Group is said to comprise “those people who hold in common the body of traditional law and custom governing the area that is the subject of the claim and who are related by means of the principle of descent” to the following apical ancestors:

(i)    Ruby Merrick and Tim Maltalinha (also known as Tim Merrick) who are the parents of the sibling set – Martin, Gottlieb, Rebecca, Selma (or Thelma);

(ii)    Kuripathanha (known as “Queen Annie”), mother of Karla-warru (also known as Annie);

(iii)    Mary Dixon (born at Killalpaninna), mother of the sibling set – Dear Dear (known as “Tear”), Jack Garret, George Mungerannie, Joe Shaw, and Henry;

(iv)    Bertha, mother of the sibling set – Johannes and Susanna;

(v)    Walter Kennedy, husband of Selma (also known as Thelma) nee Merrick;

(vi)    Florrie, wife of Martin Merrick;

(vii)    Clara Stewart (nee Murray), mother of Eddie Stewart; and

(viii)    The man Pinngipania (born at Lake Hope) and the woman Kulibani (born at Kalamarina) who are the parents of Sam Tintibana (or Dindibana Ginjmilina).

3    The principal respondent to the application is the State of South Australia.

4    On 1 September 2014, each of Raelene Warren and her son Gregory Warren (the Warrens) as well as Dieri Mitha Council Incorporated (DMCI) filed notices of intention to become a party to the application. In the section of the pro forma documents which required them to give details of the interest they claimed in the Claim Area, each of the Warrens entered:

A claim for Native Title rights over the claim area; and

On the basis of an agreement dated 15 October 2033 between the Dieri Mitha Native Title Claim Group and the Edward Landers Dieri Native Title Claim Group in relation to the claimed area.

This seemed to indicate that they were asserting a claim to native title rights over the Claim Area on the basis of an agreement on 15 October 2003. I will refer to that agreement later in these reasons.

5    Subsequently, the Warrens and DMCI have been treated as parties to the proceedings but both the applicants and the State take the view that they are not proper parties.

6    It was common ground that the Warrens are members of the Dieri Native Title Claim Group which has authorised the applicants to bring the proceedings.

7    On 16 October 2015, Mansfield J directed that the issue of the maintenance of the Warrens and DMCI as respondent parties be heard separately, and made programming orders for the hearing.

8    In his affidavit filed on 28 January 2016, Mr Campbell, the principal of the firm of solicitors acting for the Warrens and DMCI, deposed that DMCI did not wish to proceed as a respondent party. Consequently, on 11 February 2016, a Registrar made an order that DMCI cease to be a party.

9    On 4 March 2016, the applicants filed an interlocutory application seeking an order pursuant to s 84(8) of the Native Title Act 1993 (Cth) (the NT Act) “that Raelene Warren and Gregory Warren cease to be parties to these proceedings”.

10    The outlines of submissions filed on behalf of both the applicants and the Warrens proceeded on the basis that the Warrens were, by the operation of s 84(3) of the NT Act, already respondents in the proceedings, and were directed to the issue of their removal as parties.

11    The outline of submissions of the State noted, however, that there is an antecedent issue, namely, whether the Warrens are presently parties to the proceedings. This question arises by reason of the terms of s 84(3) of the NT Act. Section 84 provides (relevantly):

Coverage of section

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

Applicant

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

Affected persons

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

(a)    any of the following applies:

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

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

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

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

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

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

…

Joining parties

(5)    The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.

…

Dismissing parties

(8)    The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.

Court to consider dismissing parties

(9)    The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:

(a)    the following apply:

(i)    the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and

(ii)    the person’s interests are properly represented in the proceedings by another party; or

(b)    the person never had, or no longer has, interests that may be affected by a determination in the proceedings.

12    The Warrens assert that they are within s 84(3)(a)(ii) and (iii) with the effect that, upon the filing on 1 September 2014 of their respective notices of intention to become a party to the proceedings, they became parties by force of the terms of s 84(3).

13    There is a question as to whether s 84(3) has any application to persons who, like the Warrens, are members of an applicant claim group. In Starkey v State of South Australia [2011] FCA 456; (2011) 193 FCR 450, Mansfield J said (but without deciding the point) that there was “much to be said for the view” that the persons referred to in s 84(3)(a)(ii) are persons who claim to hold native title in relation to the land or waters in competition with the claim group, rather than as members of it, at [66]. His Honour also considered that there was “much to be said for the view” that the “interest” to which s 84(3)(a)(iii) refers is an interest other than a native title right and interest, at [66].

14    Barker J referred to the same issue in Drury on behalf of the Nanda People Native Title Claim Group v State of Western Australia [2016] FCA 52, but he too considered it unnecessary to express a final view. His Honour did however, say: “It is difficult to imagine [that s 84(3)(a)(ii)] is intended to provide a vehicle for any dissentient member of a relevant claim group to assert [that] they are already a respondent party to a proceeding”. Adoption of the construction which each of Mansfield J and Barker J thought preferable would have the consequence in the present case that the Warrens had not become respondents to the proceedings by virtue of the operation of s 84(3).

15    Counsel for the Warrens referred to Butterworth on behalf of the Wiri Core Country Claim v State of Queensland [2010] FCA 325 in which Logan J at [19] accepted, in circumstances which are analogous to the present case, that a member of the claimant group did become a party to the proceedings upon the filing of the notice, by force of s 84(3). I note, however, that Logan J did not refer to the considerations mentioned in Starkey and Drury.

16    Reference may also be made to s 61 of the NT Act which defines the “applicant” in applications for the determination of native title. Section 61(1) identifies (relevantly) the person or persons who may bring an application for the determination of native title as “a person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the native title claimed, provided that the person or persons are also included in the native title claim group”. Section 61(2) provides that in such cases, the person or persons authorised to make the application by the native title claim group is, or are jointly, the “applicant”, and that none of the other members of the native title claim group is the applicant.

17    Section 253 of the NT Act provides that “unless the contrary intention appears” the term “applicant” has “a” meaning affected by s 61(2). That suggests that s 61(2) does not define exhaustively the term “applicant”.

18    Section 251B of the NT Act states what it means for a person or persons to be authorised by all the members in the native title claim group. It provides:

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)    where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

19    On one view, it could be said that a member of a native title claim group who is not within “the applicant”, as defined in s 61(2), is “another person” for the purposes of s 84(3). On the other hand, there is a seeming incongruity if members of a claim group who have authorised a particular person or persons to bring proceedings may, by the simple expedient of filing a notice under s 84(3), become independent parties to the same proceedings and thereby be in a position to oppose, or act inconsistently with, the very application which they have authorised. Many of the advantages which it is apparent that the NT Act has sought to achieve by its identification of “the applicant” in s 61 would in those circumstances be lost. The postulated incongruity is avoided if the term “another person” in s 84(3) is construed so as to mean a person other than the particular named applicant and the persons on whose behalf the applicant (or applicants) have brought the application. This seems to be a natural construction, because the fact that the native title application is being pursued on behalf of others means that those others are, in a sense, also “the applicants”.

20    This understanding of the term “another person” would support the construction of s 84(3) proposed in Starkey and in Drury.

21    In my respectful opinion, the construction has considerable force. However, it is unnecessary to express a concluded view. The parties were agreed that it would be appropriate for the Court to determine the application for the removal of the Warrens as respondents on the assumed basis on which it had been made, namely, that the Warrens are parties to the proceedings. In the event that the Court decides for other reasons that they should be removed as parties, the point will become moot. If the Court reaches the contrary conclusion, then the parties can be heard as to the course to be followed.

22    The State raised one further point. This was to the effect that the Warrens had filed their notices of intention to become parties before the period to which s 84(3)(b)(i) refers had commenced. If that be correct, that would be another reason why the Warrens were not already parties to the proceedings by virtue of the notices they have filed. However, the State did not provide evidence which would allow the s 84(3)(b)(i) period to be identified. In that circumstance, I consider it appropriate to proceed on the assumed basis which the parties have accepted to date, namely, that the Warrens have become parties to the proceedings by virtue of s 84(3).

Removal of the Warrens as respondents

23    As already noted, the applicants and the State submit that the Warrens should be removed as respondents in the exercise of the Court’s power under s 84(8). That subsection permits the Court to order, at any time, that a person (other than an applicant) cease to be party to the proceedings. Section 84(9) requires the Court to consider the making of such an order in the circumstances it identifies. Those circumstances do not exist in the present case. However, the power in s 84(8) is not confined to the particular circumstances set out in subs (9): Butterworth at [39]; Starkey at [42].

24    The discretion vested in the Court by s 84(8) has been held to mirror the discretion to join persons as respondents granted by s 84(5) so that the considerations bearing on the latter are pertinent: Starkey at [54]. In particular, the Court may maintain a person as a respondent if the person’s interests may be affected by the determination and it is in the interests of justice to do so.

25    The discretion must be exercised having regard to the circumstances of each case and must take into account the objects and purposes of the NT Act more generally. Those objects and purposes do not, at least generally, support the inclusion of members of a claim group as respondents to proceedings. As to this consideration, Logan J said in Butterworth at [33]:

In other words, it seems to me that, whilst upon the filing of an application in Form 5 within time, in terms of s 84(3) of the Native Title Act, there is a joinder by persons such as Mr Norman Johnson, it does not follow from this that such persons must necessarily remain a party. To take a contrary view would, in effect, be subversive of the very reason for the existence of an applicant. In other words, in theory, each of the persons who comprise the native title claim group could lodge an application in Form 5 and become parties in their own right.

26    Similarly, in Kulkalgal People v State of Queensland [2003] FCA 163, Drummond J doubted the appropriateness of a dissentient claim group member being made a party to the proceedings:

[7]    If, as appears to have occurred here, one of the members of the claim group, after the regular institution of a native title claim, becomes dissatisfied with the way his or her interests are being represented by the applicant on the claim, then the only avenue provided for by the Act is that contained in s 66B. The dissatisfied claim group member can apply to the Court to have the applicant in the proceedings replaced. But the section makes it clear that a member of a claim group who becomes dissatisfied, after the institution of the proceedings, with the way the applicant is conducting the proceedings can only make such an application if the dissatisfied person has the authority of all the members of the claim group to seek replacement of the named applicant.

[8]    The statutory scheme leaves no room for the principle referred to in cases such as John v Rees [1970] Ch 345 at 371 that a person represented in an action by a representative applicant under O 6 r 13 the Federal Court Rules can, if dissatisfied with the way the representative applicant is conducting the action, be joined as a respondent in the proceedings.

27    These authorities emphasise the authority given to applicants on behalf of claim groups to conduct the proceedings and indicate that differences of views about, or dissents from, the manner in which the applicants are conducting proceedings should, at least in most cases, be resolved at the claim group level, and not within the context of the proceedings themselves. In this respect, provisions such as s 66B (the ability of the dissatisfied claim group member to apply to the Court to have the applicant in the proceedings replaced), s 251B (the requirement for the applicants to be authorised) and s 203BE(1)(a) (requiring the certification of the authorisation of the applicants) are pertinent.

28    In Starkey, Mansfield J mentioned a number of the considerations bearing upon the question of whether claim group members should be permitted to be parties to native title proceedings: that unanimity of the claim group is not a precondition, at [55]; that the inclusion of dissentient claim group members as parties to proceedings may detract from the coherent and effective prosecution of the claim, at [55]; that the inclusion of such parties may create difficulties for other respondent parties and make the negotiated resolution of the claim less likely, at [55]; and that the inclusion is likely to subvert the clear intention of s 62A of the NT Act to provide to respondent parties one person (or a group of persons) responsible for dealing with the claim on behalf of a claim group, at [55]. In this respect, Mansfield J observed at [56]:

… It is not part of the scheme of the NT Act, nor would it be consistent with the effective and efficient presentation and conduct of their claim, that individual members of the claim group who prefer a different approach or approaches should routinely be able to play a direct role in the presentation of the case both during its procedural stages or its evidentiary stages by becoming a separate party to the application.

29    Mansfield J concluded his review of the authorities in Starkey by saying at [61]:

In my view, those authorities on balance indicate that

(1)    there is no necessary legal impediment to a member of a native title claim group being joined, or remaining, as a respondent party to the claim, but

(2)    the circumstances in which a dissentient member of a native title claim group will be permitted to become a respondent party under s 84(5) or, having become a respondent party under s 84(3), will be permitted to remain a respondent party, will be rare.

It is not necessary to explore all the circumstances in which that may be permitted. The matters discussed above indicate why that is so.

See also, Far West Coast Native Title Claim v State of South Australia [2012] FCA 733 at [38].

30    However, although the circumstances in which a dissentient member of a native title claim group will be permitted to become, or remain, a respondent to proceedings are likely to be rare, the authorities recognise that there may be some situations in which it is appropriate: see Starkey at [46] and [48].

31    In my opinion, the considerations mentioned in the authorities to which I have just referred should guide the Court’s approach to the determination of the present application. The fact that the Warrens are members of the Dieri Native Title Claim Group which has authorised the bringing of the application suggests that the Court should be satisfied that there is good reason for them to remain as parties to the proceedings. This requires consideration of the matters upon which the Warrens rely.

32    Counsel for the Warrens submitted that three particular matters made it appropriate for them to remain as respondents to the proceedings. The first matter arises from the terms of cll 1.4 and 1.5 of the agreement made on 15 October 2003 (the 2003 Agreement). The second concerns the asserted connection of the applicants with the Claim Area compared with that of the Warrens. The third was said to be the interests of justice having regard to the alleged oppression of the Warrens by the applicants, the difficulties which they were said to face in having their interests recognised within the claim group, as well as some other matters.

The 2003 Agreement

33    It is necessary to record some background to the 2003 Agreement.

34    The present application is the third native title claim brought by the Dieri Native Title Claim Group. In 1998, two claims in respect of the area known as Dieri No. 1 were brought: one by the Edward Lander Dieri Claim Group and the other by the Dieri Mitha Claim Group. On 31 March 2003, Mansfield J ordered the striking out of both claims: Dieri People v State of South Australia [2003] FCA 187, (2003) 127 FCR 364; Landers v State of South Australia [2003] FCA 264, (2003) 128 FCR 495. On the appeal, the Full Court ordered a mediation which culminated in an agreement that there be a joint claim over the area then claimed. This was the 2003 Agreement.

35    The principal terms of the 2003 Agreement were that there be one native title claim made on behalf the Dieri People which was to be pursued in the Edward Lander Dieri Native Title Claim and that the prescribed body corporate registered by the Edward Lander Dieri Group be renamed as “The Dieri Aboriginal Corporation” (DAC). Clauses 1.4 and 1.5 of the 2003 Agreement, upon which the Warrens rely presently, are as follows:

[1.4]    The Dieri Mitha Claimant Group (which comprises those claimants in the Dieri Mitha Native Tile Claim Group who are of Dieri descent) shall have a permanent exclusive and guaranteed right to two positions on the Committee of the Dieri Aboriginal Corporation and such right is:

(a)    to be entrenched in the rules of the Corporation; and

(b)    is in addition to all and any rights that they shall have as members of the Corporation to nominate and be elected to any and all of the remaining positions on the Committee.

[1.5]    It is acknowledged that the Dieri Mitha claimants have a right and may file further applications for native title determinations outside of the area of the Edward Lander Dieri claim (SG 6017 of 1998).

36    The constitution of the DAC was amended to give effect to cl 1.4 by the inclusion of cl 9.4.1 as follows:

That two of the 10 members of the Committee shall be nominated and elected by members of the Dieri Mitha Native Title Claim Group at the annual general meeting. The elected committee members shall be committee members for 2 years except on the first occasion when one committee member shall be appointed for one year.

37    The joint claim was finalised by a consent determination on 1 May 2012 in which the native title of all the Dieri People over the claimed area was recognised: Lander v State of South Australia [2012] FCA 427.

38    Dieri No. 2 involved a consent determination in respect of an area adjoining the area of the Dieri No. 1 claim: Lander v State of South Australia [2014] FCA 125. That claim was also made by the present applicants on behalf of the Dieri Native Title Claim Group.

Reliance on cl 1.4

39    Counsel for the Warrens submitted that cl 1.4 of the 2003 Agreement provided unambiguously that two positions on the committee of DAC should be reserved permanently (entrenched and guaranteed) for members of the Dieri Mitha Claimant Group in Action SG 66 of 1998 and that it prohibited “members of the Edward Lander Claim Group from taking any steps to remove the two positions reserved for members of the Dieri Mitha claim group”.

40    He submitted, in the alternative, that the 2003 Agreement included an implied term that cl 9.4.1 could not be removed without the consent of “the relevant Dieri Mitha representatives”. Counsel’s submissions did not identify the “relevant” Dieri Mitha representatives.

41    Counsel then referred to evidence that, at some unidentified time, the constitution of DAC had been amended so as to remove the reservation of the two committee positions. In particular, counsel relied on the following passage in a letter to Campbell Law from the applicants’ solicitors dated 22 January 2014:

[W]hen the Corporations (Aboriginal and Torres Strait Islander) Corporations Act (Cth) 2005 was passed, it required groups such as the Dieri Aboriginal Corporation to change its constitution. At that time, a sub-committee was set up to renew the rules of the Corporation. That sub-committee had one general member of the Dieri Group and one Dieri Mitha member. At that time, the Dieri Mitha representative agreed that the Dieri Aboriginal Corporation should proceed without the reservation of two positions for the Dieri Mitha as all relevant Dieri Mitha members had been incorporated into the General Dieri Group and were members of the Corporation.

42    Counsel for the Warrens submitted that these circumstances had the following significance presently:

By changing the constitution of [DAC] and removing these positions, the Edward Lander Claim Group has breached either the express or implied terms of the Contract. This breach gives rise to an interest on the part of the Dieri Mitha Claim Group, of which Raelene Warren and Gregory Warren are members, in the present application.

As can be seen, counsel asserted, and relied upon, a breach by the applicants of the 2003 Agreement. I observe that the breach asserted is a breach by the Edward Lander Claim Group, whereas it was, presumably, the membership of the DAC generally which resolved on the amendment to the DAC constitution.

43    Counsel did not explain how the alleged breach of the 2003 Agreement, even if established, could give rise to the interest in the present proceedings for which the Warrens contend, and it is not readily apparent that it does. There does not seem to be any necessary or natural relationship between, on the one hand, a breach by the applicants of the 2003 Agreement (if established) and the Warrens’ interest in the present proceedings, or in the Claim Area, on the other.

44    As the applicants pointed out, there are a number of courses of action available to the applicants in respect of the breach they allege. They could seek a revision of the constitution of the DAC at a general meeting or they could bring proceedings seeking to enforce cl 1.4 of the 2003 Agreement. Alternatively, they could seek remedies of the kind contemplated by s 166-5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). That section empowers a court to make orders of diverse kinds, including an order that the corporation’s existing constitution be modified or repealed and replaced, if satisfied that the conduct of the corporation is contrary to the interests of the members as a whole or oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members of the corporation whether in that capacity or in any other capacity. But as I have said, it is not easy to see how the alleged breach of the 2003 Agreement could give rise to the interest which the Warrens now assert.

45    It seems that the Warrens have not pursued any of the identified courses of action even though they have been aware, at least since January 2014, of the amendment to the DAC constitution of which they now complain.

46    The determination of the present application does not provide an appropriate occasion for the Court to hear and determine, as a collateral issue, a breach of contract claim. An interlocutory application of the present kind is not a proper means by which to determine whether allegations of breach of contract are justified and the relief which may be appropriate. Such a claim, if it is to be pursued, should be made in proceedings properly adapted for that purpose.

47    That does not mean that regard may not be had to the Warrens’ claims concerning the alleged breach of the 2003 Agreement. It is established that, in applications of this kind, the Court does not embark on an assessment of contested questions of fact or otherwise seek to determine where the merits ultimately lie. The question instead is whether, having regard to the facts asserted, the Court can be satisfied that the person’s interests may be affected by a determination of native title in favour of the applicants in the principal proceeding: Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310 at [16]. In Chippendale, Greenwood J went onto observe that the question for the Court is analogous to that of whether there is “a serious question of affectation of the person’s interests to be determined”.

48    Approaching the matter in this way, I conclude that the submissions made on behalf of the Warrens do not show any plausible basis upon which the alleged breach of cl 1.4 of the 2003 Agreement could give rise to an “interest” which would make it appropriate for the Warrens to remain as parties in the present proceedings. The remedy for the Warrens (if there is one) must lie elsewhere.

Clause 1.5

49    As noted, cl 1.5 contained an acknowledgement that the Dieri Mitha claimants had the right to file further applications for native title determinations outside of the area which was the subject of the Edward Lander Dieri Claim in SG 6017 of 1998. It was common ground that the present proceedings concern an area of this kind.

50    Counsel for the Warrens submitted in his written outline of submissions that cl 1.5 should be understood as follows:

(1)    Clause 1.5 should be read as entailing a substantive obligation upon the Edward Lander Claim Group to allow the Native Title interests of the Dieri Mitha to be heard in relation to land outside of the Edward Landers claim, whether that be as applicants or respondents to a matter; or

(2)    In the alternative, … there is an implied term of the Contract, necessary to give efficacy to Clause 1.5, that should any matter arise before a court [in which] the Native Title interests of the Dieri Mitha are in issue, that the Edward Lander Claim Group will not interfere with the ability of the Dieri Mitha Claim Group to have those interests properly considered.

51    The difficulty for the Warrens with the first of these alternatives is that it is plain that cl 1.5 says no such thing. The clause acknowledges only that the Dieri Mitha claimants may file further applications for native title determination in respect of areas outside the area of the Edward Lander Dieri Claim in SG 6017 of 1998. It does not purport to impose any obligation on the Edward Lander Dieri Group to allow the Dieri Mitha to be “heard” in respect of such claims which that Group, or any differently constituted group, may later bring. This being so, the assertions made by the Warrens do not give rise to a “serious question” for the Court’s determination.

52    Even if that be wrong, cl 1.5 would bind only the parties to the 2003 Agreement. It does not bind the State or, for that matter, the other respondents to the present application. Nor does it bind the Court.

53    Counsel for the Warrens did not develop any argument in support of the implied term to which the second alternative referred. Counsel seemed to be referring to the kind of term which may be implied having regard to the facts of a given case. The circumstances which must usually exist for the implication of a term of this kind are well known: see Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 422. The implication must be (1) reasonable and equitable; (2) necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) so obvious that “it goes without saying”; (4) capable of clear expression; and (5) must not contradict any express term of the contract. Plainly, the second and third of these conditions are not satisfied in the present case and it may be doubted that the first and fourth are satisfied either. For these reasons, I do not consider it appropriate to take account of the construction of cl 1.5 for which counsel for the Warrens contended in his written outline.

54    In his oral submissions, counsel for the Warrens submitted that cl 1.5 should be given alternative constructions. He submitted that it should be construed as meaning that, if a further claim is contemplated, the Dieri Mitha had the “first right” to make the claim.

55    In my opinion, it is highly doubtful that cl 1.5 is capable of bearing that construction. But even if it be right, it is difficult to see how that construction gives rise to an interest in the Warrens making it appropriate for them to remain as parties in the present proceedings. There is no suggestion, let alone evidence, that they or the Dieri Mitha have been denied the “first right” for which they contend and, bearing in mind the period of more than 12 years which has now lapsed since the 2003 Agreement was made, it is reasonable to suppose that they have had ample opportunity to exercise the asserted right. Again, counsel did not indicate any plausible basis upon which the asserted “first right” to make the claim could justify the Warrens remaining as parties to the proceedings.

56    Counsel also made a submission that cl 1.5 should be construed as requiring the applicants to consult with them in relation to the present claim. In my opinion, the terminology of cl 1.5 is not reasonably capable of bearing such a construction. But even if it does, there is no evidence that the applicants have declined to consult with Dieri Mitha. It remains open to the Dieri Mitha to seek further consultations within the Claim Group. Again, there is no apparent rational link between the claimed obligation to consult, on the one hand, and the retention of the Warrens as parties to the present proceedings, on the other.

Connection to land

57    The Warrens disparage the connection of the applicants to the Claim Area. They contend that all the named applicants other than David Mungerannie (who is now deceased) are descended from only two apical ancestors, namely, Tim Merrick and Anna (also known as Ruby) Merrick and that the Merricks were not Dieri People but Wongkangurru People.

58    As part of this submission, the Warrens assert that the anthropologist retained by the applicants, Dr Fergie, had not consulted with the appropriate members of the claim group in formulating her genealogy and her opinion as to the proper composition of the claim group.

59    The Warrens assert, in contrast, that they are descended from an apical ancestor who had a connection with the claimed land prior to 1788 and are therefore traditional owners. The argument, as I understood it, was that this asserted superior connection to the Claim Area makes it appropriate for them to remain as parties.

60    There are a number of matters to take into account in considering this submission. First, the applicants in the present proceedings were also the applicants for native title in Dieri No. 1 and Dieri No. 2. The claim groups, which included the Warrens, were the same in each case. As noted, those claims resulted in consent determinations. There is no suggestion in the affidavits of either Raelene Warren or Gregory Warren that the applicants were not appropriate or proper applicants in the Dieri No. 1 and Dieri No. 2 claims; or that their connection with the areas then claimed through the identified apical ancestors was flawed; or that the applicants had improperly pursued the claims in Dieri No. 1 and Dieri No. 2. The Warrens did not point to any circumstance indicating that some distinction should be drawn between the Dieri No. 1 and Dieri No. 2 claims, on the one hand, and the Dieri No. 3, on the other.

61    Secondly, the submission did not rise above assertion. The Warrens did not adduce any evidence from an anthropologist to support their assertion. This is particularly significant given the first matter just mentioned. The present application is not an appropriate occasion in which to determine the nature and extent of the connection of the applicants with the Claim Area, but it is pertinent that the Warrens have not adduced evidence to show that their assertions are at least reasonably arguable.

62    Thirdly, this contention by the Warrens is prima facie inconsistent with a term of the 2003 Agreement. The term is cl 2 which provides in part:

The parties assert and declare that they are now a stable and united group who acknowledge that they are the Dieri People.

I observe that the signatories to the 2003 Agreement included both Raelene Warren and Gregory Warren. They declared in 2003 that they and the group then known as the Edward Lander Dieri Group were “a stable and united group” and all acknowledged that they were Dieri People. I note that in her affidavit of 16 December 2015, Raelene Warren deposed that “the agreement has not changed, and is still current”. There is a seeming inconsistency between the position for which the Warrens now contend and the acknowledgement which they made in 2003, which Ms Warren acknowledges is still current.

63    Next, the circumstance that there may now be some differences between the applicants, on the one hand, and the Warrens, on the other, is not by itself a persuasive consideration. I have already referred to the authorities which indicate that the circumstances in which a dissentient member of a native title claim group will be permitted to become, or remain, a respondent party to native title proceedings are likely to be rare.

64    Finally, although the Warrens seem now to be critical of the work of Dr Fergie, I note that she was also the anthropologist retained by the Dieri People in relation to Dieri No. 1 and Dieri No. 2. There was no suggestion of inadequacy in her work in relation to those claims.

65    In these circumstances, I conclude that the suggested weaknesses in the applicants’ connection with the Claim Area do not justify the Warrens remaining as parties to the proceedings.

Interests of justice

66    Counsel for the Warrens submitted that the interests of justice would be served by permitting the Warrens to remain as respondents.

67    He asserted three matters in support of this contention. First, that the expeditious resolution of the proceedings would be facilitated if the Warrens remained as respondents; secondly, that they had faced “real difficulty” in representing their interest within the claim group; and thirdly, that it would be unjust if they were “denied a voice” in the determination of the claim.

68    These contentions did not rise above the level of assertion. Counsel did not adduce, nor point to, evidence which would indicate that the assertions may have a sound basis. In particular, although counsel suggested that the Warrens were being oppressed in some way, he did not adduce evidence indicating a reasonably arguable case that that was so. The alteration of the DAC constitution cannot reasonably be regarded, by itself, as evidence of oppression.

69    In my opinion, the matters to which the Warrens referred do not warrant them remaining as respondents to the proceedings. I note again, that the applicants have made two previous claims on behalf of claim groups which have included the Warrens which have resulted in consent determinations. That suggests that the applicants are able to, and do, prosecute claims on behalf of the Dieri claim group appropriately. There is no indication that their prosecution of the present claim has been inappropriate.

70    If the Warrens are dissatisfied with the applicants’ conduct of the present claim, that dissatisfaction should not be addressed by them remaining as respondents to this claim. In Starkey at [63], Mansfield J noted that neither the definition of native title in s 223, nor the requirements for a determination of native title specified in s 225, “require the consideration of, or the resolution of, any intramural or internal issues about the respective status of, or relative responsibilities of, individual members of the claim group”. This meant, Mansfield J concluded at [63], that there was “no reason routinely to recognise and give a voice to those within the claim group who take a different view about any such matters from that taken by the claim group through the authorised applicant”.

The Warrens’ purpose

71    In her affidavit made on 16 December 2015, Raelene Warren states her purpose in seeking to remain a party to the proceedings as follows:

[10]    The Dieri Mitha have different traditions and customs to the Dieri.

[11]    There is Dieri Mitha clan with direct connection to the Subject Land. This land is not Dieri land but only Dieri Mitha.

[12]    I therefore seek to remain a respondent party to this application in order to ensure that the differing views of the Dieri Mitha are properly considered in this matter.

72    Ms Warren did not elaborate on the “differing views” to which she referred. It seems, however, that Ms Warren may wish to assert that the Dieri Mitha have native title rights in respect of the Claim Area which the claim group (of which she is a member) does not. Again, I note the apparent inconsistency between this position and the declaration in the 2003 Agreement that the Dieri are a stable and united group. It is also to be noted that the Warrens did not adduce any substantive evidence to support the contention that they, or the Dieri Mitha, have rights and interests in the Claim Area which the Dieri Native Title Claim Group does not. It reasonable to infer, and I do so infer, that given the lengthy period during which these proceedings have been on foot, the Warrens have had more than reasonable opportunity in which to provide such evidence.

73    The purpose of Raelene Warren is important. Persons seeking to be joined, or to remain as, a respondent to native title proceedings on the basis that they have native title rights and interests in the subject land which may be affected by a determination in the proceedings, are permitted to pursue only a personal claim in those rights and interests, that is, to protect them from erosion, dilution or discount: Munn v State of Queensland [2002] FCA 486 at [8]; Davis-Hurst (On behalf of the Traditional Owners of Saltwater) v Minister for Land and Water Conservation (NSW) [2003] FCA 541, (2003) 198 ALR 315 at [27]; Kokatha Native Title Claim v South Australia [2005] FCA 836, (2005) 143 FCR 544 at [24]; Worimi Local Aboriginal Land Council v Minister for Lands (NSW) [2007] FCA 1357, (2007) 164 FCR 181 at [16]-[17]; Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [18]-[19]; and Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [18]. If the persons seek instead, or also, to obtain a positive determination of native title, they must do so in the manner contemplated by the NT Act. This has the consequence that persons cannot be joined, or permitted to remain, as a respondent party if their purpose is to act as a representative to assert native title rights on behalf of other people: Isaacs at [19]; Munn at [9]; Moses v State of Western Australia [2007] FCAFC 78, (2007) 160 FCR 148 at [18]; Commonwealth of Australia v Clifton [2007] FCAFC 190, (2007) 164 FCR 355 at [48], [52]-[53], [57]-[58] and [61]; and Bonner at [19].

74    As I have said, the quoted paragraphs from Ms Warren’s affidavit, in particular [12], suggest that her purpose in seeking to remain a respondent may be not to preserve a personal interest, but instead to pursue claim on behalf of the group she describes as Dieri Mitha. This impression is supported by the statement of interest set out by the Warrens in the notices filed on 1 September 2014.

75    Even if that not be correct, Ms Warren’s stated purpose appears to be contrary to the position contemplated by s 62A of the NT Act, namely, that it is the applicant, rather than anyone else, who may “deal with all matters arising under [the NT Act] in relation to the applications”.

Conclusion

76    Having considered the matters on which the Warrens rely, I am satisfied that it is not appropriate that they remain as parties to the Dieri No. 3 Claim. Accordingly, on the assumed basis that they are parties to the proceedings presently, I consider it appropriate to exercise the power vested in the Court by s 84(8), and order that Raelene Warren and Gregory Warren cease to be parties to the proceedings. The title to the proceedings is no longer to record Raelene Warren and Gregory Warren as the fourth and fifth respondents respectively.

Associate:

Dated:    30 March 2016

SCHEDULE OF PARTIES