FEDERAL COURT OF AUSTRALIA

Allen on behalf of the Nyamal People #1 v State of Western Australia [2018] FCA 320

ORDERS

THE COURT ORDERS THAT:

1.    Ms Selina Ali be joined as a respondent in this proceeding.

2.    The affidavit of Peter William Stokes made 8 March 2018 be filed.

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

ORDERS

THE COURT ORDERS THAT:

1.    Ms Selina Ali be joined as respondent in this proceeding.

2.    The affidavit of Peter William Stokes made 8 March 2018 be filed.

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

REASONS FOR JUDGMENT

BARKER J:

1    These reasons for judgment deal with the applications of Ms Selina Ali under s 84(5) of the Native Title Act 1993 (Cth) (NTA) filed 7 February 2018 to be joined as a respondent in two claimant applications made under the NTA by the Nyamal People: Nyamal #1 and #10 being respectively WAD6028/1998 and WAD6003/2000. Her joinder application in each case is opposed by what I may refer to as the Nyamal applicant in each of those claimant applications.

2    It should be said at the outset that the joinder applications come rather late in the proceedings as the parties currently propose that the Court should consider the making of a consent determination of native title in favour of the Nyamal People on 5 April 2018.

3    In that regard, if Ms Ali is joined as a respondent, the scheduled consent determination hearing would most probably need to be vacated.

4    It follows there is much at stake both for the Nyamal applicant and for Ms Ali in the determination of the joinder applications.

5    Two questions arise: (1) whether Ms Ali has a relevant joinder interest; and (2) whether the Court in its discretion should order her joinder.

General background to joinder applications

6    By reason of the urgency of the joinder applications and the nature of the materials relied upon by the contesting parties – Ms Ali, on the one hand, and the Nyamal applicant, on the other – I will only refer to salient factual matters and not everything in the affidavits read at the joinder hearing.

7    By way of further background to Ms Ali’s joinder application, I should note that each of her joinder applications was filed on 7 February 2018, are in identical terms seeking orders that:

(1)    Pursuant to s 84(5) of the NTA, Ms Ali be joined as a party to this proceeding; and

(2)    That pursuant to s 84D(1)(b) of the NTA, the members of the applicant produce evidence to the Court that they are authorised to implement the resolutions which were purportedly passed at an authorisation meeting held in South Hedland on 6 and 7 December 2017.

8    The joinder applications were filed on behalf of Ms Ali by her lawyers, Blackshield Lawyers.

9    Ms Ali’s joinder applications were filed five days after an application was filed in the Nyamal #1 claimant application WAD6028/1998 on behalf of Mavis Westerman also seeking an order pursuant to s 84D(1)(b) of the NTA that members of the applicant produce evidence to the Court that they are authorised to implement resolutions purportedly passed at the authorisation meeting held in South Hedland on 6 and 7 December 2017. That application by Mavis Westerman was filed on 2 February 2018. It was also filed on her behalf by Blackshield Lawyers.

10    The Nyamal applicant, which is also legally represented in these proceedings, opposes the joinder applications but, by affidavits of Craig Marshall Jones, Darren Paul Hopkins and Mr Peter William Stokes filed on 21 February 2018, produced materials relating to the December, South Hedland meeting.

11    As a result of the filing of those materials the effective requests of Mavis Westerman and Ms Ali for the production of such relevant materials was obviated.

12    The background to the December 2017 meeting and what occurred at that meeting plainly is the subject of some dissatisfaction by both Ms Ali and certain members of the Westerman family. There is an expressed concern by these deponents that the notice of that meeting was defective and that the conduct of the meeting left much to be desired, such that the validity of resolutions of the meeting should be questioned.

13    Given that the Nyamal applicant was seeking to obtain claim group approval or verification of the terms of the proposed consent determination scheduled for consideration on 5 April 2018, there was some interest in the meeting, particularly in the question of who comprised the members of the claim group.

14    The application of Mavis Westerman seeking the production of materials concerning the December meeting was supported by the affidavit of Mavis Westerman made 19 January 2018, an affidavit of Albert Gregory Clifton made 25 January 2018, an affidavit of Sharon Lee Westerman made 2 February 2018, and the affidavit of Hilda Flan made 15 January 2018.

15    Ms Ali’s applications were supported by her affidavit made 18 January 2018, and, in relation to her joinder application in Nyamal #10, also by the affidavit of Albert Gregory Clifton made 25 January 2018, and the affidavit of Sharon Lee Westerman made 2 February 2018. Further affidavits filed on behalf of Ms Ali comprised a second affidavit of Sharon Lee Westerman made 23 February 2018, a third affidavit of Sharon Lee Westerman dated 23 February 2018 and a fourth affidavit of Sharon Lee Westerman dated 23 February 2018, as well as an affidavit of Robert Grant Houston made 22 February 2018 and a second affidavit of Ms Ali made 26 February 2018.

16    These various affidavits were formally read on the hearing of the joinder application save for parts of the affidavits identified as not formally read by Mr Blackshield, counsel for Ms Ali, as listed on the transcript of proceedings.

17    I should add here that, as events transpired, following the production by the Nyamal applicant of the required materials, the only application pressed by the interlocutory applicants was Ms Ali’s application for joinder in the two Nyamal claimant applications.

18    I should also add here that the second affidavit of Ms Ali purports to respond to a second affidavit of Mr Stokes made 23 February 2018. However, Mr Stokes’ “second” affidavit has never been filed in these proceedings.

19    However, a further affidavit by Mr Stokes made 8 March 2018 appending an anthropological report of Ms Jodi Neale of Anthropos Consulting Pty Ltd, while not formally filed, was produced at the hearing of the joinder application. Mr Blackshield, as counsel for Ms Ali, objected to it being read. I indicated at the hearing that I would consider the objection and rule on it, which I do below. I allow the affidavit to be read.

20    I should also finally add, consistent with the written submission made on behalf of Ms Ali, that in dealing with the joinder applications that Mr Blackshield has expressly stated that Ms Ali does not make any submissions in relation to the following issues:

(1)    the adequacy or otherwise of the distribution of the notices for the 6 and 7 December meeting referred to below (as opposed to the adequacy of the notices themselves); or

(2)    the number of votes cast for or against particular resolutions at the 6 and 7 December meeting.

Joinder power

21    Section 84(5) of the NTA, as it presently applies, enables joinder. It affects proceedings commenced on or after 15 April 2007. Each of the claimant applications here was commenced prior to that date and so it is accepted that the joinder applications are governed by the provision as it stood prior to the 2007 amendment to the NTA that introduced the present provision. The provision as it stood at material times provided:

The Federal Court might at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interest may be affected by a determination in the proceedings.

22    What was added in the 2007 amendment was a requirement for the Court also to take into the account the interests of justice. The extent of which the addition of those words materially affected the proper construction of the pre-2007 provision is uncertain. The fact is that the statutory language always was that the Court “may” at any time join a party if so satisfied. This connotes a discretion to order joinder, albeit a discretion to be exercised judicially.

23    Indeed, Ms Ali accepts that she needs to demonstrate both a relevant interest and a reason why the Court should exercise its discretion in her favour.

Does Ms Ali have a relevant interest?

24    As to her interests, which she says “may be affected by the determination in the proceedings”, Ms Ali primarily relies on her claim that she is descended from Old Pontroy, who she says was a Nyamal man.

25    In her affidavit made 18 January 2018, Ms Ali discloses that her address is in South Hedland, Western Australia. She then makes the following claims or assertions:

    That she identifies as a member of the Nyamal People.

    That she is descended from Nyamal ancestor, Old Pontroy.

    That this is her “main claim” to be Nyamal.

    But she also says she has descent “by way of adoption” from Nyamal ancestor, Minjikarli/Jimmy Woodman.

    However she is not a member of the claim group as currently described in the proceedings.

    That she has attended several Nyamal authorisation meetings/community meetings over approximately the last two years, as well as a community meeting convened by the Nyamal People’s Trust, held in South Hedland on 13 December 2016 at which representatives of the Nyamal applicants’ current solicitors were present.

    That she was refused entry to the room when voting was conducted on a mining agreement proposal.

    That she has never received information concerning that agreement even though it is on her “traditional land”.

    But after the voting was concluded she was allowed entry into the room “and my Nyamal identity was publicly acknowledged by the members of the Nyamal community that were present. This included Nyamal elders”.

    That she attended another meeting on 24 July 2017 and her Nyamal descent was challenged by Tony Taylor, but that in discussion that followed “the great majority of Nyamal Elders present expressed the view that I was Nyamal, by reason of my descent from Old Pontroy”.

    That she attended another Nyamal authorisation meeting on 23 August 2017 and her Nyamal identity was acknowledged “by Nyamal elder Tina Taylor and other members of the Nyamal community present”.

    On 6 December 2017, she sought to attend the Nyamal native title authorisation meeting held in South Hedland, but when she sought to enter the meeting she was told by Joanne Taylor that while she could enter the meeting she was not considered a Nyamal person and was not eligible to register a vote.

    That she was informed by Sharon Westerman that the meeting purported to pass a resolution authorising the Nyamal applicant to consent to a determination of native title, with the holders being described as the biological or adopted descendants of certain listed ancestors who did include Minjikarli/Jimmy Woodman, but not Old Pontroy.

    That she attended the meeting after the voting was concluded and was told by Doris Eaton (one of the named Nyamal applicants) and a lawyer, Zoe Ramsey, that Old Pontroy would be included as an apical ancestor on the Nyamal claim. She says Jodi Neale, the anthropologist, was also present during the discussion about her ancestry.

    That she has not been contacted by anyone since that meeting to verify this.

    That she wishes to be joined as a party to protect her native title interests within the application area and to seek to ensure that any determination contains a proper and complete description of the Nyamal People.

26    In her second affidavit, in response to Mr Stokes’ unfiled affidavit made 23 February 2018, Ms Ali says:

    She was born in 1970 in Port Hedland.

    In September 2017, she gave evidence in the Kariyarra native title proceeding in South Hedland. She was asked some questions about her younger years, her family and her heritage and did her best to explain.

    She said she was very nervous and stressed by the Court and thought she was there to talk about her Kariyarra family history. She confirmed her father was Martin Pontroy and her grandfather was Old Pontroy, who was a Nyamal man.

    But her father’s mother was Wagula and she was Kariyarra and that is why she (Ms Ali) identified as Kariyarra on her grandmother’s side and Nyamal on her grandfather’s side.

    She explained how she lived at Yandeyarra on Kariyarra country when she was growing up and also mentioned other places.

    When she went to the Court hearing, she was not sure who her father was following, because he had a Kariyarra mother and a Nyamal father, and she was told by some people she had to follow her grandmother when she was still alive and she told the Court this.

    But she was told by other people that she had to follow her grandfather, and so she went back to Old Pontroy because this is the right way and “he is recognised by all the family I know as Nyamal”.

    She also referred to a copy of her family tree, an earlier draft of which had been shown to her by Sharon Westerman on 24 February 2018.

27    Ms Ali also says, as emphasised in her written submissions, that there are what might be considered three different lists of ancestors identified in the materials:

(1)    the list of apical ancestors contained in the Form 1 in the claimant applications;

(2)    the list contained in Sch 7 of the proposed consent determination; and

(3)    the list which now appears in the preamble to the Rules of the Nyamal Aboriginal Corporation which is intended to become the prescribed body corporate (PBC) in relation to the administration of the native title which would flow from the proposed consent determination.

28    The first two lists constitute what might reasonably be called exhaustive lists of apical ancestors, such that if a person is able to show their descent from one of those ancestors they may be considered within the claim group. But if they cannot, then they are necessarily excluded.

29    By contrast the PBC list is non-exhaustive and so it might be considered more flexible in its capacity to accept as members of the PBC a wider range of persons than the Form 1 and the proposed determination description are capable of recognising.

30    I might add that, when it was suggested at the initial hearing of the joinder application on 27 February 2018, by senior counsel for the Nyamal applicant, that Ms Ali might well, one way or the other, be recognised under the existing ancestor list, I then adjourned the hearing of the joinder application referred the issue to immediate mediation before a Registrar of the Court to see if the dispute could be resolved. I was later advised by the Registrar that mediation had not been successful. Accordingly, I completed the hearing of the joinder application on 8 March 2018, following which I reserved my decision.

31    The descriptors, whether (1), (2) or (3), also require that, generally speaking, a person identify as Nyamal and be recognised as Nyamal by others in the Nyamal community.

32    As I say, the primary interest contended for by Ms Ali is her descent, as a Nyamal person from Old Pontroy. She says he was a Nyamal man and that she is also Nyamal and is recognised as such.

33    She emphasises that, consistent with authority, it is not for the Court on the joinder applications to decide whether Ms Ali’s allegations are finally made out but rather that they are properly arguable. Thus she says it is not for the Court to determine whether her allegations are correct and that all she really needs to show is a prima facie case that she has an interest that could be affected by a determination in the proceedings. This proposition is undoubtedly accurate and has been accepted in a series of cases cited on behalf of Ms Ali. See Wakka Wakka People # 2 v State of Queensland [2005] FCA 1578, per Kiefel J (as she then was) at [6]; Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942, per Reeves J at [8] to [9]; Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310, per Greenwood J at [16]; Edwards on behalf of the Wongkumara People v State of Queensland [2014] FCA 282, per Reeves J at [31] and Pegler on behalf of the Widi People of the Nebo Estate #1 v State of Queensland [2014] FCA 932, per Collier J at [10].

34    There appears in various forums to have been some discussion about Old Pontroy. There is no doubt about his existence but there appears to be debate within the Nyamal community and other communities as to his “tribal” or language group association, as Ms Neale’s report suggests. It may be observed, in passing, that any Aboriginal person traditionally may have more than one acceptable pathway to be the recognised holder of native title rights and interests, and that one’s usual classification according to a tribal or language group may be misleading. A person may identify as a member of one group but hold recognisable rights and interests traditionally in country ordinarily associated with another. Indeed, in some cases, the country might possibly be categorised as “shared country”.

35    The submission made on behalf of Ms Ali is that Old Pontroy is listed as an apical ancestor in the claim group description for the Kariyarra native title proceedings WAD 6169 of 1998 (currently reserved following hearing). It is said that Old Pontroy was the subject of concurrent expert anthropological evidence in that proceedings on 3 November 2017 and that the anthropologists, Dr Kingsley Palmer and Dr Phillip Clarke, expressed opinions that Old Pontroy was a Nyamal man. References to the transcript are provided and attached to the third affidavit of Sharon Lee Westerman made 23 February 2018.

36    Dr Palmer (who gave evidence for the claimants in that proceeding) said that:

My view now is that Pontroy … did not have estates within the Kariyarra claim area.

37    If Old Pontroy is a Nyamal person then it would appear that he is currently excluded from the exhaustive list of ancestors in both claimant applications and in Sch 7 of the proposed consent determination. Ms Ali says that her claim should properly be considered and reviewed before any consent determination, which is in the nature of an order in rem, is made. To that end, she seeks to be joined as a party.

38    She reasonably makes the point that even if the Rule book to the PBC contains a sufficiently flexible definition to accommodate her interests, the relevant description of native title holders is that contained in the consent determination, not the Rule book.

39    Before going further I should note the evidence and submissions made on behalf of the Nyamal applicant and the State of Western Australia.

40    The Nyamal applicant submits that the interests of justice do not support the joinder of Ms Ali, especially at this late stage of the proceedings. The Nyamal applicant generally submits that the late joinder of Ms Ali is likely only to be destructive of the orderly conduct at the proceedings and for that reason should not be allowed.

41    Following the first hearing, before I adjourned the joinder application to enable mediation, no ethnographical evidence had been put on by the applicants responding to Ms Ali’s claim of descent from Old Pontroy, a Nyamal man. This was perhaps understandable as the other part of her application was for the production of material concerning authorisation, which the Nyamal applicant then provided to the Court as explained above. Just before the resumption of the hearing following mediation, however, the Nyamal applicant put on a “third” affidavit of Mr Stokes made 8 March 2018, attaching Ms Neale’s report of 21 November 2017 endeavouring to shed some light on this ancestry question. As I have noted, Mr Stokes’ affidavit was objected to by counsel for Ms Ali on the basis that not only was it late and should have been filed much earlier, but also that it did not relevantly assist. I reserved on the question of whether the affidavit could be read. I now allow it to be read and order it to be filed. Despite the late production of that affidavit and materials in it, I consider that it is in the interests of the administration of justice that the Court should receive the document, but only giving it such weight as it deserves in the circumstances. It has some value as it provides some helpful ethnographic information and it confirms some of Ms Ali’s claims appear to be contested. It contains much untested and hearsay information. The affidavit should now be formally filed.

42    Ms Neale’s report is in relation to the Nyamal native title claim #1 and headed “Analysis of the Relationship between Indicated Individuals and Families and the Claimant Group Description”. It was made to assist in dealing with the ancestry issues now in question following receipt of a letter from Mr Blackshield.

43    Without reciting the full content of her report, in the course of responding to questions about Ms Ali, Ms Neale stated that “I am not aware of the connection between Gordon and Martin Pontroy or their father and the apicals of the Nyamal #1 claimant group description. This is not to say that they did not have Nyamal descent, but on the information currently available it does not appear that they are captured by the claimant group description”.

44    In answer to a question whether they are Nyamal, Ms Neale stated:

There is one archival source that indicates Pontroy’s father is Nyamal. However, Nyamal Elders consulted indicate that the Pontroys were not Nyamal, and members of the Pontroy family have not previously involved themselves with the Nyamal community nor the Nyamal native title claims.

45    Ms Neale’s report goes on to deal with material from the Tindale collection and other information including the work of Dr Kingsley Palmer, as well as consultations by telephone with “several senior Nyamal people” which appeared to reject Ms Ali’s claims to be Nyamal.

46    In a section providing discussion and conclusion, Ms Neale states:

The genealogy in the Tindale materials is the only source viewed that suggests the Pontroy’s have Nyamal descent. While Tindale’s research was very methodical and the degree of accuracy impressive … there are mistakes presumably due at least in part to the speed with which they worked … no corroborating information has been located and other indications reviewed contradict it.

47    Ms Neale’s report then deals with contrary indications, including lack of recognition; denial amongst Nyamal people spoken to by her who knew the Pontroy brothers; indications in Palmer’s thesis that they were local landowners in the Yandiyarra area; the reported lack of involvement of senior Pontroy family members in the Nyamal community, including in relation to the native title claim when alive; that Gordon Pontroy made a claim titled “Kariyarra-Indjibarndi People”.

48    In the circumstances, while I have allowed the affidavit of Mr Stokes to be filed and read, the weight to be afforded the affidavit must be qualified as Ms Neale’s report is untested and contains hearsay.

49    The submissions of the State point out that while Ms Ali is not a member of the claim group she might be descended (by adoption) from one of the apical ancestors in the proposed description of the native title holder for the consent determination, being Minjikarli also known as Jimmy Woodman.

50    More generally, the State submits it remains unclear whether Mr Ali is a member of the proposed native title holding group especially as the requirements for the proposed native title determination description not only requires descent from one of the named apical ancestors, but also identification by other Nyamal People as Nyamal and having a connection to the claim area in accordance with traditional laws and customs of Nyamal People. The State says that Ms Ali’s evidence on this point to date suggests some uncertainty as to her inclusion although she identifies instances in which she has been acknowledged by other Nyamal People as a member of the Nyamal group.

51    Ms Ali, as noted above, in fact says that some people who clearly are acknowledged to be Nyamal People and who are within the proposed determination description of the native title holders have recognised her as a Nyamal person and say that she is appropriately descended from a Nyamal person, being Old Pontroy.

52    In my view, having regard to the ethnographic materials and the contested claims of Ms Ali to have Nyamal connections, it cannot be said, at this interlocutory stage of the claimant proceedings, that Ms Ali does not have a relevant interest which may relevantly be affected by the proposed consent determination of native title.

53    On the materials filed by the parties to this point, which it must be said are not exhaustive, there are contestable views. As I say, much information in Ms Neale’s report is hearsay and not tested.

54    The Nyamal proceedings have been underway for many years and there have been many meetings over time and other events involving Nyamal People. Ms Ali does not obviously appear as a person who has either been identified by others as Nyamal or as a person who has always so identified herself. Nonetheless, it seems to me that there is a case arguably to be made on her behalf as a person who has traditional interests in the Nyamal country.

55    The larger question in those circumstances is whether the late application by Ms Ali to be joined as a respondent in the Nyamal proceeding is too little too late. It is an application calculated to upset the making of the proposed Nyamal consent determination on 5 April 2018.

Should the Court in its discretion order joinder?

56    Ms Ali, by counsel, recognises that having regard to the question of the undoubted discretion of the Court under s 84(5) not to join a party, notwithstanding claimed interests, Ms Ali bears a “difficult onus” in trying to satisfy the Court that granting her joinder applications would be appropriate. This is particularly so where the consent determination hearing would most probably have to be delayed if she is joined.

57    In relation to the question of discretion, by contrast with other cases where this Court has not allowed the joinder of a person at a late stage of a proceeding and just before the making of a consent determination, Ms Ali relies on her evidence and that of the other deponents to suggest that the meeting on 6 and 7 December was a less than adequate mechanism to deal with claim group description issues, for a number of reasons, all of which should cause the Court to join Ms Ali as a respondent so that a proper “verification” process can be completed.

58    First, she says that the description of native title holders in the proposed determination is defective and points out that at the December meeting there was considerable agitation over the absence of certain names from the ancestor list apart from her own ancestor. She says that those who were particularly vocal on this question included Eddie McPhee, Brenda Alec and Sharon Westerman. She relies on the affidavit of Sharon Westerman in this regard.

59    She says that the meeting facilitator, Craig Jones, proposed that the meeting treat the resolution to endorse the determination as a kind of referendum on the question of whether or not the determination should go ahead as it was, or if an alternative process should be adopted to address potential changes to the ancestor list. She again relies on the affidavit of Sharon Westerman to this end. She says Mr Jones framed the decision as a choice between an option whereby the Nyamal got their determination without further delay, and another option whereby “You’re going to get the named apicals correct”. She again refers to the affidavit of Sharon Westerman in this regard.

60    Ms Ali says that on the afternoon of 6 December, a lawyer, Ms Zoe Ramsey, gave a presentation on the rules of the PBC and on 7 December made a presentation on ‘Changes requested to the Rules’ to make it clear that the rules were open to the inclusion of more Nyamal People than the listed apical ancestors in the Form 1. Thus, the descendants of Rory McPhee and others were to be included in the preamble. Resolutions, she says, were purportedly passed to that effect.

61    She says that two other obvious candidates for future inclusion were and are her ancestor, Old Pontroy, and that of Albert Clifton, namely Dinah Yatawaranu.

62    Ms Ali also contends that any decision to proceed with the consent determination containing the proposed description native title holders was vitiated by material misrepresentations and an unwarranted threat.

63    She contends that the first material misrepresentation was that the proposed description of native title holders in a consent determination matched the current description of native title holders in the claimant applications, when there were significant differences.

64    She says the second material misrepresentation was that it would be necessary to go to Court to amend the claimant application to make any changes to the proposed descriptions prior to the making of the determination. That is not so and it is common for changes to be made in the description of a native title claim group in the course of a consent determination hearing.

65    She also challenges the adequacy of the notice for the 6 and 7 December meeting which she says contained a description of native title holders from Sch 7 of the proposed determination in the belief it was the same as the description in the Form 1 applications.

66    She says that the notice invited attendance, “only if you are a person who falls within the description of the Nyamal People in the Nyamal People’s native title claims, being Federal Court proceedings WAD6028/1998 and WAD6003/2000 (Nyamal Native Title Claims)”.

67    However, it then went on to provide a list of Nyamal people which was in the terms of Sch 7 rather than the list contained in the Form 1.

68    Ms Ali accepts that it is open to a claim group to move to alter its composition and to be reconstituted but contends that no process to that effect was properly undertaken at the meeting on 6 and 7 December. She says it could not have been undertaken effectively or validly without having been flagged in the notices for the meeting.

69    Mr Blackshield, for Ms Ali, in argument accepted that if the “verification” process had been properly conducted at the December meeting, or were now properly to be conducted, and Ms Ali were ruled not to meet the Nyamal group membership criteria, then she would be in a difficult position to maintain her position.

70    Taking all of the above factors into account, I consider there is sufficient evidence to show that Ms Ali has an arguable interest in the proceedings that may be affected by a determination in favour of the applicants in the two claimant proceedings, especially by the proposed consent determination. Further, I consider that in all of the circumstances surrounding the challenge to the proper notification and conduct of the December 2017 meeting, I should exercise discretion in her favour.

71    I should add here that the fact that Ms Ali has not and I do not think proposes to file a claimant application of her own is not an impediment to joining her as a respondent at this point. Only where it is plain that a person asserting native title interests who wishes to be joined as a party intends to maintain a claim for another group different from the existing native title applicant, does that become a question. In Isaacs on behalf of the Turrbal People Reeves J observed at [18]-[19] that the issue whether a claim is a representative claim or a personal claim by a joinder applicant arises because of various decisions of the Court that establish that where a person is seeking to be joined as a respondent on the basis that he or she claims to hold native title rights that may be affected by a determination in the proceedings, that person may only do so if he or she wishes to pursue a personal claim or interest in defensively asserting those native title rights or, in other words, to protect them from erosion, dilution or discount. But if the person wishes to obtain a positive determination on behalf of their people, then the NTA prescribes that the only method for doing that is by an application under s 13(1) complying with s 61 of the NTA.

72    While to join Ms Ali as a respondent now will most probably have the immediate effect of causing the vacation of the proposed consent determination hearing on 5 April, I think this is a case where any delay that follows is justified to doubly ensure that justice is done by and to all persons properly to be considered as Nyamal People.

73    This step will enable the Nyamal People fully and finally to consider the best way forward to ensure that final resolutions of the claim group as a whole are beyond reasonable challenge and any consent determination can proceed without further impediment.

74    While I have given some passing consideration to the question whether, if Ms Ali were not to be joined as a party, the option may later exist for an application to be made to vary any consent determination of native title on the grounds set out in s 13(5) of the NTA, it is clear such a course would not be open, under s 61, to Ms Ali personally. This makes this option a less than optimal means of endeavouring to deal with Ms Ali’s position after a consent determination is made and so I do not consider it to be a viable option to joining her as a party.

75    I appreciate that to facilitate this joinder at this late stage of these two claimant applications may well cause delay and extra expense to parties. Nonetheless, as I say, I consider joinder is necessary in order to do justice in this case.

Order

76    The Court orders that Selina Ali be joined as a respondent in each of these proceedings.

Associate:

Dated:    13 March 2018