FEDERAL COURT OF AUSTRALIA

Agius v State of South Australia (Ngarrindjeri Native Title Claim Parts A and B) [2017] FCA 1162

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 31 August 2017, whereby Mr Birtwistle-Smith sought to be joined as a Respondent, is dismissed.

2.    The matter is adjourned to the Case Management Conference on 20 October 2017 and otherwise for the Consent Determination on 14 December 2017.

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

EX TEMPORE REASONS FOR JUDGMENT

WHITE J:

1    I am dealing with an interlocutory application by Mr Andrew Birtwistle-Smith by which he seeks an order that he be joined to the Ngarrindjeri Native Title Claim. The interlocutory application was filed on 31 August 2017 and is made pursuant to s 84(5) of the Native Title Act 1958 (Cth) (the NT Act).

2    The Ngarrindjeri Native Title Claim is a longstanding claim, having been lodged with the National Native Title Tribunal on 23 June 1998 by 12 persons on behalf of the Ngarrindjeri People and others. It identifies the group on whose behalf it is brought as the descendants of 78 named apical ancestors. There has been no change to the listed apical ancestors since the claim was first filed in 1998.

3    The Ngarrindjeri Native Title Claim concerns a large area of land in South Australia which, described broadly, is the area between Murray Bridge in the east and Cape Jervis in the west and extending south along the Coorong to a point just north of Kingston, and then extending northeast to meet the Dukes Highway and then following the alignment of that highway back to Murray Bridge. There have been some amendments to the claimed area over the life of the application, in particular by removing the claim to an area of the sea.

4    Section 84(5) of the NT Act empowers the Court at any time to 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 that it is in the interests of justice to do so.

5    The application of s 84(5) has been discussed in several authorities and the principles relating to its application are well established. See in particular, Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [26] (Mansfield J); Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310 at [14] (Greenwood J); Akiba v Queensland (No 2) [2006] FCA 1173, (2006) 154 FCR 513 at [32] (French J); Worimi Local Aboriginal Land Council v Minister for Lands (NSW) [2007] FCA 1357, (2007) 164 FCR 181 at 183-4 (Bennett J); and Sumner v State of South Australia [2014] FCA 534 at [12] (Mansfield J). These authorities establish that an application for joinder must show that:

(a)    the person has an interest;

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

(c)    in the exercise of its discretion (in the interests of justice), the Court should join the person as a party.

6    The authorities also show that the kinds of interests which may satisfy the first of those three elements “need [not] be proprietary, legal or equitable in nature”: Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 at 7-8; Sumner at [13]. The interests “must be greater than those of a member of the general public”, “genuine”, “not indirect, remote, lacking substance”, “capable of clear definition” and “of such a character as to be capable of being affected in a demonstrable way by a determination” in the proceedings: Byron Environment Centre at 7; Sumner at [13]; Far West Coast at [28]. The authorities have also recognised that traditional Aboriginal rights, not necessarily amounting to native title rights and interests, may satisfy the requirements of s 84(5): Far West Coast at [32]; Byron Environment Centre at 8.

The Ngarrindjeri Native Title Claim

7    It is appropriate, before addressing the matters upon which Mr Birtwistle-Smith relies, to record some more history regarding the Ngarrindjeri Native Title Claim.

8    I have already referred to the fact that the claim has been extant for a very long time. The claim has been in case management, again for a considerable period, with a view to programming it to a consent determination.

9    In late 2014 the claim was listed as a priority claim in the applications for determination of native title in South Australia. At a case management hearing on 1 September 2016, the Court raised with the parties its concerns about the seeming lack of progress towards the resolution of the matter and made some time-tabling orders for the conduct of the claim. Since that time the parties have made considerable progress; so much so that, at the Callover of the South Australian native title claims on 6 April 2017, the parties informed the Court that they expected to be ready for a consent determination in the latter half of 2017. The Court mentioned then to the parties that 4 September 2017 may be available as a date for a consent determination.

10    It is evident from the Court file that the parties have, since then, continued to work actively towards the consent determination. At the case management conference on 10 July 2017, they informed a Registrar that a consent determination in late November or early December 2017 would be achievable.

11    A significant event affecting the Ngarrindjeri Native Title Claim and part of the background circumstances to the present interlocutory application occurred on 7 July 2017, when Mr Birtwistle-Smith and 11 others filed a claim for the determination of native title on behalf of the people described in the application as the First Nations of the South East. The First Nations People are identified in that application as the descendants of 11 named apical ancestors. Part of the area claimed by the First Nations People in that application overlaps the southern part of the area claimed by the Ngarrindjeri Native Title Claim Group.

12    Subsequently on 27 July 2017 and on the application of the Ngarrindjeri Native Title Claim Group, the Court made orders separating the Ngarrindjeri People’s application into two parts, being Ngarrindjeri Part A and Ngarrindjeri Part B. Ngarrindjeri Part A comprises that portion of the Ngarrindjeri Native Title Claim which is not overlapped by the application of the First Nations of the South East filed on 7 July. Ngarrindjeri Part B comprises the balance of the area which is the subject of the Ngarrindjeri native title claim and is in effect the overlap area. The Court referred the overlapping claims for mediation, with the mediation to take place before a Registrar or Registrars of the Court in February 2018. The Court fixed that time so as to avoid a distraction of the energies of the parties in Ngarrindjeri Part A from the further work necessary for the anticipated consent determination.

13    At the same hearing on 27 July 2017, the parties in Ngarrindjeri Part A informed the Court that they were then in the final stages of agreeing the matter for the consent determination. On that basis, the Court listed Thursday, 14 December 2017 as the time for the contemplated consent determination and made consequential timetabling orders.

14    On 4 August 2017, a further native title determination application was filed on behalf of the First Nations of the South East. That application is SAD 211 of 2017. The area of that application does not overlap any portion of the Ngarrindjeri Native Title claim.

The interlocutory application

15    As I have already noted, Mr Birtwistle-Smith filed on 31 August 2017 the interlocutory application which is the subject of this decision. The application did not indicate on its face whether it was filed in relation to both Ngarrindjeri Part A and Ngarrindjeri Part B but, at the directions hearing on 31 August 2017, counsel for Mr Birtwistle-Smith confirmed that he seeks to be joined as a party in both parts of the Ngarrindjeri claim.

16    Mr Birtwistle-Smith has not made any affidavit in support of his application. Instead, the basis upon which he seeks to be joined is set out in the affidavit of Mr Andrew Jantke, a solicitor employed by the South Australian Native Title Services Ltd (SANTS). SANTS has also filed the two applications for the determination of native title by the First Nations of the South East mentioned earlier.

17    Mr Jantke’s affidavit discloses the basis upon which Mr Birtwistle-Smith seeks to be joined as a respondent as follows:

(a)    five of the apical ancestors (referred to by Mr Birtwistle-Smith’s counsel as “the Disputed Apicals”) named in the Ngarrindjeri Native Title Claim are also persons named as apical ancestors in the claims of the First Nations of the South East;

(b)    in the event that the foreshadowed consent determination is made in Ngarrindjeri Part A, the legal interests of Mr Birtwistle-Smith would be affected because:

(i)    the determination would thereby identify the Disputed Apicals as ancestors of the Ngarrindjeri Native Title holders and members of the same society of which the native title holders are members;

(ii)    that identification would be inconsistent with the claims and evidence to be advanced by the applicants on behalf of the First Nations of the South East in support of their native title determination application;

(c)    the in rem nature of a determination of native title may preclude Mr Birtwistle-Smith and other members of the First Nations of the South East People from advancing evidence in their claims which contradicts any determination of native title in the Ngarrindjeri Native Title Claim.

18    In further support of his application, Mr Birtwistle-Smith filed an affidavit from an anthropologist, Mr Clarke. In a report annexed to that affidavit, Mr Clarke expresses the view that five of the apical ancestors named in the Ngarrindjeri Native Title Claim are not apical ancestors for the Lower Murray/Ngarrindjeri People. He considers instead that each of the five persons is an apical ancestor for all Aboriginal groups based in the southeast at sovereignty. Another anthropologist, Mr Graham, who is employed by SANTS, has expressed opinions to the same effect in respect of the same five apical ancestors.

19    Counsel for Mr Birtwistle-Smith described the interest which he claims for the purpose of s 84(5), as an interest in preserving his interest in the proper prosecution of the claims of the First Nations of the South East. Counsel accepted that this was not a proprietary interest but noted that, on the authorities to which reference has already been made, an interest for the purposes of s 84(5) need not be a proprietary interest.

20    Counsel also contended that Mr Birtwistle-Smith has an interest which could be affected by a determination in Ngarrindjeri Part A or for that matter in Ngarrindjeri Part B, being his interest in maintaining that the forebears of the First Nations of the South East constituted a society separate and distinct from that of the Ngarrindjeri Claim Group and his interest in being able to contend that the five apical ancestors in question were not associated with the claim area for Ngarrindjeri Part A.

21    Counsel elaborated that submission by reference to the in rem nature of a determination of native title rights and interests, referring to the decision of Drummond J in Wik Peoples v Queensland (1994) 49 FCR 1. In particular, counsel submitted that any attempt by Mr Birtwistle-Smith or by the other applicants in the claims by the First Nations of the South East to establish facts contradicting the basis for a consent determination in Ngarrindjeri Part A could be characterised as an abuse of process of the kind discussed in Dale v State of Western Australia [2011] FCAFC 46; (2011) 191 FCR 521, at [92]-[94], [112]-[114]. Counsel submitted that Mr Birtwistle-Smith’s interest in avoiding that consequence was an interest which should not be regarded as indirect, remote or lacking substance.

22    Both the Ngarrindjeri People and the State of South Australia disputed that Mr Birtwistle-Smith has an interest of the requisite kind.

23    Counsel for the State submitted that Mr Birtwistle-Smith’s interest should be characterised as an interest in the evidence to be given in the Ngarrindjeri Part A proceedings and submitted that an interest of that kind is not sufficient for the purposes of s 84(5). Counsel referred in this respect to a passage in the judgment of Hely J in Wilson on behalf of the Bandjalang People v Department of Land and Water Conservation [2003] FCA 307, at [30]:

[30]    [I]t may be that the farmers have an indirect and non-specific interest in the outcome of Bandjalang #1 as the decision might provide a “precedent” (using that term in a loose sense) in relation to issues which may arise in relation to Bandjalang #2. Whether and to what extent this is likely to be so is a matter of speculation. In any event, an interest of this type does not satisfy the tests enunciated in Byron. Such an interest is not capable of clear definition, and it is indirect, or remote.

24    Counsel for the Ngarrindjeri Native Title Claim Group submitted that Mr Birtwistle-Smith does not claim any interest in the area claimed in Ngarrindjeri Part A, only an interest in the First Nation of the South East People’s claim not being prejudiced by the proposed consent determination in Ngarrindjeri Part A. He also noted that Mr Birtwistle-Smith had not provided any evidence that he had any genealogical connection to any of the five apical ancestors in question. This meant, he submitted, that the claimed interest of Mr Birtwistle-Smith could arise only by reason of his membership of the First Nations of the South East Claim Group.

25    On my understanding of these submissions, they do not preclude Mr Birtwistle-Smith having a relevant interest. That is because the inclusion or exclusion of the five apical ancestors in question may be capable of bearing upon the identity of the society at sovereignty, now relied upon for the asserted native title rights and interests by the First Nations of the South East.

26    In my opinion, the question of possible abuse of process to which several of the submissions of the parties were directed is a difficult one in the present context and not one which is readily able to be decided upon in an application of the present kind. It is preferable that any such issue be determined, if and when it arises, when it is necessary to do so and in the context of an actual factual dispute. The Court would then be better able to determine the issues to which counsel for Mr Birtwistle-Smith adverted as to the effect of an in rem determination of native title, the matters necessary for that determination, and the application of the principles relating to abuse of process.

27    For those reasons, I do not intend presently to attempt a determination of the issues concerning potential abuse of process. Instead, for the purposes of dealing with the present application and for that purpose only, I am prepared to assume, without finally deciding, that Mr Birtwistle-Smith does have a relevant interest of the kind which he asserts which may be affected by the determination in Ngarrindjeri Part A.

28    I am prepared to make that assumption because I consider that, even on that basis, it would not be appropriate in the exercise of the discretion, that is to say, it would not be in the interests of justice, to make the order for joinder. A number of matters indicate why that is so.

Exercise of discretion

29    First, as I have already mentioned, the Ngarrindjeri Native Title Claim has now been on foot since 1998, a few days short of 19 years. That is a very long time for an application to go undetermined. It is also a very long period in which Mr Birtwistle-Smith could have brought earlier his application for joinder, and yet it was made only on 31 August 2017, and after the Court had made the arrangements for the consent determination in Ngarrindjeri Part A. The NT Act does not contain any time limitation for the bringing of applications for the determination of native title, so that it is open to the First Nations of the South East to bring their application now. However, that does not mean that the time which elapses before an application for joinder is brought may not be significant in relation to the relief which an applicant seeks in relation to the conduct of other native title claims. That is to say, the time which Mr Birtwistle-Smith has had over the preceding 19 years in which to bring his present application is, in my opinion, a very pertinent consideration. In that respect, I note that in Wakka Wakka People (No 2) v State of Queensland [2005] FCA 1578, Kiefel J regarded an elapse of approximately 16 years in the bringing of an application for joinder to be a relevant matter for the exercise of the discretion.

30    Secondly, the only explanation provided by Mr Birtwistle-Smith for the timing of his application is that contained in [12] of Mr Jantke’s affidavit made on 30 August 2017. In that paragraph, Mr Jantke deposed:

[12]    This application has been lodged at this time in the proceedings because my clients have only recently lodged their native title claims and have only recently considered the impact of the recognition of their apical ancestors in the proposed determination in the Ngarrindjeri Native Title Claim upon their claimed native title rights and interests. Furthermore it appears likely that the matter of Ngarrindjeri apical ancestors has not to this point been considered sufficiently by the respondents in this proceeding.

31    The first sentence of that paragraph contains a frank acknowledgement by Mr Jantke that the explanation for the lateness of the interlocutory application for joinder lies with Mr Birtwistle-Smith himself and his fellow applicants in the claims by the First Nations of the South East. They have only recently considered the potential significance of the apical ancestors claimed by the Ngarrindjeri, having only recently filed their own claims. Mr Jantke does not assert any lack of awareness by Mr Birtwistle-Smith of the Ngarrindjeri Native Title Claim, nor of its progress within the Court, nor of the identity of the apical ancestors named in the Ngarrindjeri Native Title application. Mr Jantke does not attribute Mr Birtwistle-Smith’s omission to bring the application sooner to any conduct by the parties in the Ngarrindjeri Native Title Claim.

32    It may be overstating things to say that the existence of the Ngarrindjeri Native Title Claim is a matter of notoriety. It seems fair, however, for the Court to infer that its existence is well known. The application has been in the public domain and the subject of numerous attendances in the Court, both at directions hearings, case management hearings and at the Native Title Callover. SANTS, the representative body for native title claims in South Australia, has been a party to the Ngarrindjeri Native Title Claim since 2008 and has participated in the various hearings just mentioned.

33    Mr Jantke deposed in the second sentence of [12] that it appeared likely that the matter of the Ngarrindjeri apical ancestors had not to date been considered sufficiently by the Respondents in the proceeding. I note that Mr Jantke does not depose to any matter of fact to support the conclusion there expressed, nor provide any basis for the opinion, if it be an opinion, which he expresses. There is no reason, in my assessment, for the Court to infer that the applicant and the respondent parties to the application, including SANTS itself, have not given appropriate attention to the listed apical ancestors in the Ngarrindjeri claim.

34    Thirdly, there is a significant prospect of prejudice to the existing parties in relation to Ngarrindjeri Part A if the joinder is allowed. Counsel for Mr Birtwistle-Smith referred to the potential in that event for there to be a round of negotiations concerning the identity of the apical ancestors, a conference of experts and ultimately for a trial to resolve disputed issues of fact. The very existence of that prospect, and the delay associated with it, illustrates the potential detriment to the parties in Ngarrindjeri Part A presently. That is especially so, given the significant work which has been done to date in preparing the matter for the consent determination.

35    I accept, on the basis on which I am proceeding, namely, that Mr Birtwistle-Smith does have an interest of a relevant kind, that he may suffer some detriment if joinder is not allowed. I take that into account as a significant matter. At the same time, I take into account that it is not inevitable that the pursuit by the First Nations of the South East of a claim based in part on the five disputed apical ancestors will give rise to an issue of abuse of process, let alone that such an issue would be resolved adversely to the First Nations of the South East.

36    I take into account in that respect that counsel for the Ngarrindjeri Applicants today has stated openly that those persons will not be making any objection to the First Nations of the South East relying upon the five disputed apical ancestors in their proceedings. That, of course, does not preclude some other party raising the same objection, but I regard it as a significant matter nevertheless.

37    I also consider it appropriate when considering the potential detriment to Mr Birtwistle-Smith, to take into account that, to an extent, the matters on which he relies have been brought upon himself by the relative lateness with which he has brought his application for the joinder.

38    There are other aspects of Mr Birtwistle-Smith’s conduct which point against a favourable exercise of the discretion. It seems that the first notice of the claim by the First Nations of the South East occurred on or shortly after the filing of the application on 7 July 2017. Until that time the parties in the Ngarrindjeri Native Title Claim had, as I understand Mr Sumner’s affidavit, not been aware that any such claim was foreshadowed. They had not been able to adjust their conduct in the litigation accordingly and were proceeding, it seems, diligently to comply with the Court’s timetable and to ready themselves for the anticipated consent determination.

39    The absence of any previous notice seems particularly significant when regard is had to two matters. First, Mr Graham, the anthropologist employed by SANTS, has deposed that he commenced his research on behalf of the First Nations of the South East in August 2016 and that research has been of an active kind since then. Presumably he received the instructions within SANTS some time before August 2016. Secondly, there is the absence of any mention of the prospect of such a claim at the various directions hearings, case management hearings and callovers which have occurred since then. There is no explanation provided as to why it would not have been possible for Mr Birtwistle-Smith or SANTS to have given some forewarning to the Court and to the parties of the prospect of such a claim.

40    At the hearing on 27 July 2017, neither SANTS nor Mr Birtwistle-Smith raised any objection to the Court putting in place the timetable for the consent determination to which I referred earlier. Instead, both the Court and the parties were permitted to proceed on the basis that a consent determination could be made in December 2017. It is difficult to think that there could have been any misconception on the part of Mr Birtwistle-Smith or his representatives on 27 July concerning the plan for there to be a consent determination regarding Ngarrindjeri Part A in December 2017. It is pertinent that SANTS, the representative body for native title holders, did not raise any objection to the Court making the arrangements for the consent determination.

41    So far I have not mentioned Ngarrindjeri Part B. My focus has been on Ngarrindjeri Part A. I am not satisfied that an exercise of the discretion favours the joinder of Mr Birtwistle-Smith with respect to Ngarrindjeri Part B. The only orders relating to the conduct of that matter so far have been the order for the mediation to which I referred earlier, but I think that it is appropriate to anticipate that an order will be made in due course for Ngarrindjeri Part B and the First Nations of the South East claim (insofar as it overlaps Ngarrindjeri Part B) to be dealt with in the one proceeding. That is the requirement of s 67 of the NT Act. The issues which Mr Birtwistle-Smith wishes to agitate can, on my understanding, be agitated conveniently in the context of that single proceeding in due course without him being joined to the Ngarrindjeri claim for the purposes of participation in that claim.

42    Finally, I take into account the public interest in proceedings in this Court, including native title proceedings, being conducted with efficiency and economy. Sections 37M and 37N of the Federal Court of Australia Act 1976 (Cth) reflect that public interest and apply as much to native title proceedings as they do to proceedings of other kinds. I consider it appropriate, to take into account the public interest just mentioned and the overarching purpose mentioned in ss 37M and 37N in the determination of the current application.

43    For these reasons, I am not satisfied that it would be in the interests of justice to accede to the application of Mr Birtwistle-Smith, even assuming, as I have said, that he does have a requisite interest.

44    Accordingly, the interlocutory application filed on 31 August 2017 is dismissed.

45    The matter is adjourned to the case management conference on 20 October 2017, and otherwise for the consent determination on 14 December 2017.

Associate:

Dated:    28 September 2017

SCHEDULE OF PARTIES