FEDERAL COURT OF AUSTRALIA

Lewis on behalf of the Warrabinga-Wiradjuri #6 v Attorney-General of New South Wales [2018] FCA 481

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 12 December 2017 be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    Mr Keith Kemp has filed an interlocutory application on 12 December 201    7 in which he seeks to be joined as a party in this proceeding, otherwise known as Warrabinga-Wiradjuri #6 v Attorney General of New South Wales, which file number is NSD1786/2016. His interlocutory application also seeks other relief in respect of this proceeding and other related proceedings including NSD543/2013, NSD443/2016, NSD857/2017 and NSD1895/2017. There is a further related proceeding which is not specifically referred to in the interlocutory application, namely NSD2041/2017. These claims are related in the sense that they are all Warrabinga-Wiradjuri claims. The main “country claim” is NSD857/2017. Each of the other claims is a future act matter. The Court was informed by the legal representative of the applicant in each of these matters that it proposes to join all related future act applications to the main country claim after the completion of relevant future act negotiations.

2    It is desirable to describe the other active native title determination applications which have been filed by the Warrabinga-Wiradjuri People:

(a)    NSD543/2013, otherwise known as Warrabinga-Wiradjuri #2 v Attorney General of New South Wales, being another polygon claim (approximately 0.51 km2) which was filed on 27 March 2013 and accepted for registration on 19 July 2013;

(b)    NSD443/2016, otherwise known as Warrabinga-Wiradjuri #4 v Attorney General of New South Wales, being another polygon claim (approximately 6.65 km2) which was filed on 26 March 2016 and accepted for registration on 29 April 2016;

(c)    NSD857/2017, otherwise known as Warrabinga-Wiradjuri #7 v Attorney General of New South Wales, being a whole of country claim (approximately 14,139 km2) which was filed on 30 May 2017 and accepted for registration on 1 September 2017;1

(d)    NSD1895/2017, otherwise known as Warrabinga-Wiradjuri #8 v Attorney General of New South Wales, being another polygon claim (approximately 142.40 km2) which was filed on 26 October 2017 and accepted for registration on 24 November 2017; and

(e)    NSD2041/2017, otherwise known as Warrabinga-Wiradjuri #9 v Attorney General of New South Wales, being another polygon claim (approximately 54.06 km2) which was filed with the Court on 22 November 2017 and accepted for registration on 22 December 2017.

3    Mr Kemp’s joinder application was opposed by the applicant in the substantive proceeding. The Attorney-General of NSW and NTSCORP neither consented to nor opposed the application. A helpful outline of written submissions dealing with the relevant legal principles was filed on behalf of the Attorney-General. NTSCORP adopted that outline.

4    It is convenient to summarise the background of the proceeding.

Summary of background matters in NSD1786/2016

5    On 12 October 2016, the applicant, who was represented by Simon Blackshield of Blackshield Lawyers, filed a claimant application under s 61(1) of the Native Title Act 1993 (Cth) (NT Act) for a determination of native title in respect of three relatively small areas of land and waters which coincide with the external boundaries of Mining Lease Application 515. The total area of the polygon claim is approximately 1.674km2. The Court File Number for the claim is NSD1786/2016. The relevant areas are located approximately 15 kilometres ESE of Ulan, in New South Wales. The nearest town is Wollar. The native title claim group is described in Sch A to the claimant application, being descendants of six named persons. The Attorney-General of NSW was named as the sole respondent.

6    On 16 December 2016, the Court made orders joining NTSCORP Limited as a respondent in NSD1786/2016. On 16 December 2016 the Court also directed that any Warrabinga-Wiradjuri country claim which was to be combined with the application in NSD1786/2016 be filed by 31 May 2017. By orders made on 1 June 2017, Wilpinjong Coal Pty Limited and NSW Electricity Network Operations Pty Ltd (Transgrid) were joined as respondents in the proceeding.

7    On 30 May 2017, the main country claim by the Warrabinga-Wiradjuri People was filed and given the Court File Number NSD857/2017. The Court was informed by a Report on Progress dated 6 June 2017 that negotiations were scheduled to take place on 6 June 2017 and that the applicant in NSD1786/2016 would not be seeking to combine this application with NSD857/2017 until after these negotiations were finalised. The Court was informed that the applicant took the view, however, that the matter should travel “with the larger claim in the interim”. The reference to “the larger claim” is a reference to the main country claim, NSD857/2017.

8    By a further Report on Progress dated 5 December 2017, the Court was informed that active negotiations in NSD1786/2016 were continuing. It was further stated that the area the subject of the application fell wholly within the area subject to what was described as the registered Warrabinga “core country” application, namely NSD857/2017, which had been stood over to 15 June 2018 to enable notification to take place. Further, it was reiterated that the applicant in NSD1786/2016 would not be seeking to combine this application with the application in NSD857/2017 until after the relevant future act matter had been resolved. Finally, the applicant repeated its submission that the matter should travel with the larger claim.

9    Mr Kemp’s interlocutory application was filed on 12 December 2017, after the relevant three-month notification period for NSD1786/2016 had expired (i.e. on 8 May 2017). Accordingly, the application fell to be determined by reference to s 84(5) and not s 84(3) of the NT Act (see [15] below). Mr Kemp filed an affidavit in support dated 8 December 2017. In that affidavit Mr Kemp described himself as Principal of Marruwa Indigenous Consultancy. That name also appears on some of the documents which Mr Kemp has filed in the proceeding. The Court has proceeded on the basis that Mr Kemp seeks to have himself personally joined as a party, not Marruwa Indigenous Consultancy.

10    Directions were made on 8 February 2018 for the joinder application to be heard on 4 April 2018. Mr Kemp filed lengthy written submissions on 2 March 2018. The submissions contain a good deal of additional evidence in support of the joinder application.

11    As noted above, the Attorney-General filed submissions on 16 March 2018 which stated that he neither consented to nor opposed Mr Kemp’s joinder application.

12    The applicant filed submissions dated 16 March 2018 opposing Mr Kemp’s joinder. It relied upon an affidavit dated 16 March 2018 by its instructing solicitor, Mr Blackshield.

13    In reply, Mr Kemp filed further written submissions, together with an affidavit dated 28 March 2018.

14    Mr Kemp represented himself at the hearing on 4 April 2018 and made oral submissions.

Summary of relevant statutory provisions and case law

15    The parties were agreed that the relevant provision in the NT Act concerning Mr Kemp’s application to be joined as a party in the circumstances here is s 84(5), but for reasons which will shortly emerge s 84(3) should also be noted:

84    Parties

…

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.

…

16    There was substantial agreement between the parties as to the relevant legal principles concerning joinder. Some of those principles were summarised by Branson J in earlier proceedings involving Mr Kemp, being Davis-Hurst on behalf of the Traditional Owners of Saltwater v New South Wales Minister for Land and Water Conservation [2003] FCA 541; 198 ALR 315 (Davis-Hurst joinder).

17    Drawing also on cases such as Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 (Arakwal) and Walker v State of Western Australia [2002] FCA 869; 191 ALR 654 per French J, Wakka Wakka People #2 v State of Queensland [2005] FCA 1578 (Wakka Wakka People #2) per Kiefel J and Jacob v State of Western Australia [2014] FCA 1106 per McKerracher J, the relevant principles which guide the exercise of the Court’s discretion include:

    an interest sufficient to give a person the right to become a party to an application needs to take into account the fact that a party can in effect veto the process of mediation and conciliation which the NT Act favours, which suggests that the relevant interest must not be indirect, remote or lacking substance;

    the nature and content of the right to become a party also suggests that the interests must be capable of clear definition and be of such a character that they may be affected in a demonstrable way by a determination of native title to which the application relates;

    the interest need not be proprietary or even legal or equitable in nature, however, the interest must be “genuine and not indirect, remote or lacking in substance”;

    a person who has “a special, well-established non-proprietary connection with land or waters which is of significance to that person” may have a sufficient interest;

    other discretionary considerations may be relevant, including the following factors identified by Gilmour J in Barunga v Western Australia (No 2) [2011] FCA 755:

(i)    because a determination of native title is a proceeding in rem and binds non-parties, it is fundamental that an order which directly affects a third person’s rights or liabilities should not be made unless the person is joined as a party;

(ii)    if joinder means that there will be consideration of rights and interests of the joined party which would lead to a more accurate definition of the native title rights and interests claimed, this is a factor in favour of joinder;

(iii)    the party joined is put in the position to protect native title rights and interests which they claim to hold;

(iv)    whether the interest asserted by the third party can be protected by some other mechanism;

(v)    whether the applicant for native title determination would be prejudiced if the third party is joined as a party; and

(vi)    the history of the proceedings, which includes the effects of delay and the resource implications of joinder for all parties to the proceeding (see also Allen on behalf of the Nyamal People # 1 v State of Western Australia [2018] FCA 320 at [56] per Barker J).

18    The whole of the relevant circumstances should be taken into account in determining whether or not to join a party to the proceedings, as was emphasised by Rares J in TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2016] FCA 553 at [164]:

164    However, there will also be persons who have a disagreement with an authorised applicant’s conduct of a native title claim or the claim itself, but whose rights or interests will still be affected by a determination of the claim, so that it will be appropriate or in the interests of justice to join those persons as parties to the proceedings. And, the interests of justice relevant to an application under s 84(5) must be assessed in the whole of the circumstances, including the stage that the proceedings have reached when the application is made and the consequences of the joinder, or refusal to order it, on all of the parties and the person applying to be joined. A consideration that may be relevant is the role that the State or Territory Government, as the representative of the community where the land and waters claimed are, has played in the litigation (see Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at 115 [29] per Emmett J), as well as the position advanced by other respondents in relation to the claim in the context of the rights or interests that the person seeking to be joined wishes to advance.

19    Of potential significance to the determination of Mr Kemp’s application is a series of cases which draw a distinction between a person who seeks to be joined as a respondent to a native title proceeding with a view to obtaining a positive determination of native title, as opposed to the situation where the person wishes to protect native title rights or interests from adverse ramifications. The relevant principles are helpfully summarised by McKerracher J in A.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 2) [2013] FCA 1000 (Mirning People) at [56] and [57]:

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

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

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

20    In Davis-Hurst joinder, Branson J ordered that Mr Kemp be joined as a party in two proceedings relying primarily on the following matters:

(a)    unchallenged evidence which established that Mr Kemp is a descendant of the Pirripaayi people, who are traditionally associated by Aboriginal law and custom with an area which included the land the subject of the two native title determination applications;

(b)    Mr Kemp’s concern that, while he did not wish to advance a claim for a determination of native title in respect of the relevant land either on his own behalf or on behalf of the Pirripaaya people, a native title determination in favour of the application in both proceedings would “give formal recognition to a version of history that does not recognise the Pirripaayi people as the traditional owners of Saltwater”;

(c)    Mr Kemp’s concern that the applicant in both proceedings was the wrong person to represent the claimant group because, based on Mr Kemp’s understanding of traditional Aboriginal law and custom, a woman could not claim the areas of land the subject of the applications for determination; and

(d)    Mr Kemp’s concern that the applicant may not accept, or perhaps be aware of, the correct Dreaming story and the customary laws of the area in question.

21    Justice Branson noted at [16] that Mr Kemp had “undertaken considerable research into the history of the claim areas”. Her Honour added that any determination by the Court might be seen to give “legitimacy to an understanding of that history which [Mr Kemp] does not accept is complete” and that any such determination could adversely affect his ability “to share the knowledge that he has acquired about the Pirripaayi people and his capacity to keep alive Pirripaayi language and customary laws”.

22    It is evident that Mr Kemp has been involved in several previous native title proceedings. In addition to Davis-Hurst joinder, he actively participated in the following proceedings: Kemp v Registrar, Native Title Tribunal [2006] FCA 568; Kemp v Native Title Registrar [2006] FCA 939 and Davis-Hurst on behalf of the Kattang People v Minister for Lands [2009] FCA 725.

Mr Kemp’s submissions summarised

23    Mr Kemp filed various outlines of written submissions, large parts of which are more accurately described as being in the nature of evidence. It is also fair to say that some of Mr Kemp’s affidavit material was more in the nature of submissions than evidence. This is perhaps understandable in the light of his status as a litigant in person.

24    In his affidavit dated 8 December 2017, Mr Kemp stated that he had a native title interest in the area of the claims but also that he chose not to claim any such interest. As I understand his case, the essential elements of his claim to have an interest sufficient to be joined as a party in the proceedings are reflected in [3] of that affidavit (without alteration):

On the facts before me:

(a)    I have personal knowledge of the history of the main application and associated applications (how the claim information arose).

(b)    I hold the correct description of the native title holders of the area of all relevant claims.

(c)    The Claimants crossed a Dreaming Track of another group (‘Group K’) and made claim additional to active multiple claims similarly extending beyond rights. Those extending ambit claims active so far are:

NSD543/2013

NSD443/2016

NSD1786/2016

NSD857/2017

NTD1895/2017

(d)    There may be other claims before or after the date of this affidavit that similarly infringe.

25    It is convenient to also set out in full the executive summary which Mr Kemp provided at the beginning of his lengthy submissions filed on 2 March 2018 (without alteration):

a).    There is a relevant and definitive Group K (kanytjaangkara) Dreaming track which proceeds from near Canberra up to and through Ulan.

a) 1    This does two things to the Wiradjuri claims filed with the Federal Court of Australia:

a) 1,1 It negates a need to demonstrate kanytjaangkara association in the area between the river being called Macquarie and this kanytjaangkara Dreaming track up toand through Ulan because all Wiradjuri claims lie south of this kanytjaang kara Dreaming track.

a) 1.2 The relevant kanytjaangkara Dreaming track picks up my non-ceded sovereign association in the land through my mother as it moves through the 'Abercrombie' river near tjarra-1-ka (Taralga) and thus confers my right to speak on behalf.

b)    Apical kangtjaangkara authorities unconpronised before any Australian land rights or native title laws - including in my family - declared Wiradjuri country to be west and north of the river being called Macquarie. This is an authoritative    pre-emptive record of rejection of any future native title land claims to the east and south of that river made by the Wiradjuri peoples.

b) 1    The rejection is based on 'Aboriginal' law and the sovereign language of Group K and it is non-partisan being in one case a 1913 pre-dating of any future land claim infrastructure constructed by the Australian state and in the other case of my family; held and declared by oral history before any relevant land title legislation peculiar to 'Aborigies' were constructed by the Australian State .

c).    The Wiradjuri claim area in NSD1786/2016 (Ulan Marrakimpa) and NSD443/2016 and NSD543/ (parra-n-payalang) were all historically mapped by Australia having to use the surrounding and sovereign Kany Tjaang Kara language and this occurs for all Wairadjuri claims made in the area past and present. Therefore the kanytjaangkara language is probative.

c 1    I have rersearched and believe that all of the apical ancestors listed on the Wiradjuri claim(s) filed with the Federal court are apical ancestors within the kanytjaangkara Peoples (Group K).

c .2    British military action in the area in the ninneteeenth century left the kanytjaangkara and Wiradjuri peoples dispossessed and struggling to recover even in the twenty first centur. The true native title story of the arrea was lost to the general populations but remained in isloated families. I believe the Wiradjuri native title claims in the kanytjaangkara area are the result of a profusion of miscnceived information develoed mostly by Australians in the wider pop;ulation on the back of econoic imperatives.

d)    From all of the above and in the kantjaangkara view the sotor/stories purported by the Wiradjuri claim(s) was not apprehended as false by statutory law aand the common law and this is a matter of incapacity in the native title institutions. outside the court .

d).1    From the kanytjaangkara view the Wiradjuri claims are not lawfully right; they are not legally right; they are not morally right.

d) .2    No Wiradjuri group holds the de jure right to claim native title land in the area(s) in which the Wiradjuri claim(s) have been made. That de jure right is held by the Kany Tjaang Kara groups and is an independent rght reserved and not not subject to compulsion.

26    In brief, Mr Kemp’s case may be summarised as follows:

(a)    there is a Dreaming Track which starts near Canberra and proceeds to and beyond Ulan, which Dreaming Track is linked with the K Group;

(b)    the traditional land and waters of the Wiradjuri People are to the south of the Dreaming Track;

(c)    Wiradjuri Country is to the west and north of the Macquarie River; and

(d)    all the apical ancestors listed in the various Warrabinga-Wiradjuri claims are apical ancestors of the K Group.

27    Mr Kemp attached two maps to his written submissions filed on 2 March 2018. The first was described as a map “eliminating claimed Wiradjuri legal rights in the claim areas”. Although no clear line is shown on the first map, it appears to suggest that the Dreaming Track passes through a number of place names which are shown in red and blue colours. It should be noted that, as the Attorney-General pointed out, Ulan is located near the northern boundary of Warrabinga-Wiradjuri #7 v Attorney-General of New South Wales (NSD857/2017), but is outside the external boundaries of the area claimed in NSD1786/2016. The second map was described by Mr Kemp as “eliminating claimed Wiradjuri legal rights east and south of the river being called Macquarie”. The map appears to identify various places by reference to what Mr Kemp described as the language of Group K. Mr Kemp explained that the kanytjaangkara word denoting “water dreaming” in a place name is “warl”. Map two, which covered an extensive area, had superimposed upon it (presumably by Mr Kemp) several place names in different colours, including the words “Warl-a-ra” (Wollar) and “Warl-a-ma” (Wollemi). The source of the information depicted in the two maps is not revealed in any detail. It should also be noted that the maps were drawn to a very large and unspecified scale.

28    In his oral submissions, Mr Kemp described himself as representing the Gundugurra People, which he confirmed could be spelt various ways (including Gandangurra, Gandanggara and Kandnora) and that these spellings were synonymous with kanytjaangkara, Kany Tjaang Kara and “K Group”. He described himself as being part of this community. He submitted that the Dreaming Track follows wetlands to the east and south of the Macquarie River and that the people of this area are Gundugurra People, not Wiradjuri. He said that he was not involved in earlier native title proceedings brought by the Gundugurra People which resulted in the registration of an Indigenous Land Use Agreement dated 20 June 2014 (a copy of which was attached to Mr Blackshield’s affidavit). That agreement related to a large area of land south of Lithgow and well away from the area claimed in the current proceedings. Mr Kemp contended that if a determination was made in the current proceedings it would affect “his people” around Bathurst.

29    In his reply submissions, Mr Kemp stated that he had not approached any of the Gundugurra People regarding the making of a rival claim to that raised in the current proceeding. He said that there would be significant practical difficulties in him obtaining authorisation to make such a claim and that there would also be serious resource implications. He submitted that NTSCORP would only fund one native title claim for a particular area. He repeated his submission that native title is not compulsory. He submitted that rather than being interested in lodging a rival claim he wanted to have “the correct story for the area title” by using what he described as “buried information” known only to himself. Mr Kemp added that, to date, he had not revealed to the Court the full extent of his knowledge of relevant matters.

The applicant’s submissions summarised

30    In brief, the applicant opposed the joinder on the basis that:

(a)    although Mr Kemp had elected not to claim a native title interest in the application area, his interest could not be defined with reasonable certainty and is not readily ascertainable as a matter of fact;

(b)    although Mr Kemp claims to have knowledge of familiarity with what he describes as “Group K”, which is a reference to a language group more commonly known as the Gundungurra, he has not sought to rely on any independent material which suggests that the boundaries of traditional Gundungurra country is proximate to the application area and the available material suggests to the contrary;

(c)    although Mr Kemp does not claim membership of the Gundungurra in his evidence, he appears to suggest in his 2 March 2018 submission that he is seeking to establish his authority to act as a representative of that group. Applying Reeves J’s decision in Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [19], a person cannot be joined as a respondent party in a proceeding if his or her purpose is to act as a representative to assert native title rights on behalf of other people;

(d)    on the issue of the interests of justice, the applicant submitted that if the Court considered that Mr Kemp had a sufficient interest for the purposes of s 84(5), his joinder was not in the interests of justice because:

(i)    the application is inconsistent with the overarching purpose of civil practice as defined in ss 37M(1) and (2) of the Federal Court of Australia Act 1976 (Cth) and, in particular, the just resolution of disputes as quickly, inexpensively and efficiently as possible; and

(ii)    the other orders sought in Mr Kemp’s interlocutory application relate to proceedings in which Mr Kemp currently is not a party and the terms of order 4 of his interlocutory application suggest that Mr Kemp may have a personal interest in being made a consultant in the proceedings pursuant to s 131A of the NT Act.

Consideration

31    As noted above, the Court has a broad discretion whether or not to join a person as a party to proceedings under s 84(5), guided of course by the particular terms of that provision as well as the case law which has been outlined above.

32    The first issue for determination is whether Mr Kemp has demonstrated, at least on a prima facie basis, that he has relevant interests which may be affected by a determination of native title in respect of the current proceeding. That interest needs to be clearly defined and be genuine and not indirect, remote or lacking substance. Mr Kemp claims to have a native title interest in the area of the claims. He says that he has personal knowledge of the history of the main claim, as well as the related applications. He also claims to have knowledge of the K Group’s interest in the Dreaming Track, which appears to provide the central plank for his interest. A major difficulty, however, is that, as mentioned above, the evidence provided by Mr Kemp in support of his claims falls short of demonstrating, even on a prima facie basis, that the Dreaming Track includes the areas the subject of the application for determination in NSD1786/2016. Mr Kemp has not adduced any evidence which shows the external boundaries of the K Group’s country. Given its nature, it is probable that the precise boundaries of the Dreaming Track are somewhat nebulous but even after appropriate allowance is made for that matter it remains the case that the areas in NSD1786/2016 are well outside the Dreaming Track.

33    As noted above, it is possible that the Dreaming Track is within the external boundaries of Warrabinga-Wiradjuri #7 (NSD857/2017), being a whole of country claim, but Mr Kemp has not applied to be joined as a party in that proceeding. Instead, he has confined his application to becoming a party to the current proceeding, with a view to then having that proceeding consolidated with the other Warrabinga-Wiradjuri matters, and then dismissed. I accept that Mr Kemp need only show a prima facie case in relation to his interest, in the sense referred to in Arakwal, but I am not satisfied that he has met even this relatively low hurdle. Insofar as it relates to the claimed area in the current proceeding, I consider that Mr Kemp’s interest in the Dreaming Track is only indirect and remote.

34    The inadequacy of Mr Kemp’s evidence in establishing, even on a prima facie basis, that there is a sufficient connection between the Dreaming Track (and related matters of place names) and the three areas the subject of the claim in the current proceedings, is highlighted even further when reference is made to the annexures to Mr Blackshield’s affidavit. One of these annexures reproduces Norman B Tindale’s 1974 map of Indigenous group boundaries at the time of first European settlement in Australia. The claimed areas in NSD1786/2016 all fall well within the boundary shown on that map of the Wiradjuri People and are far removed from the area of the Gandangara People.

35    Another annexure comprises an extract from David Horton’s 1996 AIATSIS Indigenous Language Map from the website of Culture Victoria. The same observations apply to that map as have been made immediately above in respect of Mr Tindale’s map.

36    A third map annexed to Mr Blackshield’s affidavit is a map showing Aboriginal languages of New South Wales which Mr Blackshield downloaded from the website of the NSW Department of Aboriginal Affairs. The same observations are equally applicable. These three maps are all inconsistent with Mr Kemp’s claimed interest as a Gundugurra man in the claimed areas.

37    Given Mr Kemp’s failure to demonstrate even on a prima facie basis that the Dreaming Track affects the areas the subject of the claim in the current proceeding, it necessarily follows that his interests will not be affected “in a demonstrable way” by a determination of the current proceeding. I appreciate that different considerations may arise in respect of other undetermined claims by the Warrabinga-Wiradjuri People, but Mr Kemp has not sought to be joined as a party in those proceedings.

38    It is unclear whether Mr Kemp is acting in a personal or a representative capacity. I am not prepared, however, to accept the applicant’s invitation to make a firm finding that Mr Kemp is acting in a representative capacity and that his application should be characterised as a representative claim on behalf of the K Group. Although some ambiguity has been created by Mr Kemp’s use of expressions such as “my people”, I accept his statements that he is not authorised to act on behalf of the Gundugurra People (however spelt) and that, for the reasons he gave, it would be difficult for him to obtain such authorisation. I also note that in his reply submissions, Mr Kemp stated that he was “authorised to make any submissions on behalf of myself and the kanytjaangkara Peoples”. On the basis of the evidence before me at this stage, this alleged “authorisation” seems to involve a case of self-appointment by Mr Kemp rather than reflect some formal or traditional process of authorisation. I do not doubt the sincerity of Mr Kemp’s subjective beliefs.

39    For completeness, I should also state that I do not accept the applicant’s submission that Mr Kemp has a personal interest in being appointed a consultant under s 131A of the NT Act, and that this is what has motivated his interlocutory application. I have noted Mr Kemp’s reply submission in which he acknowledges that he may have a conflict of interest in consulting on a professional basis in the proceeding.

40    Given my conclusion that Mr Kemp’s interests are insufficient to qualify as “interests” for the purposes of s 84(5), it is unnecessary to address and determine the second limb of s 84(5), namely whether or not it is in the interests of justice to join him as a party in the proceedings. The two limbs are plainly conjunctive (see Wakka Wakka People #2 at [5]-[6] per Kiefel J). The second limb only arises if the first limb has been established, which is not the case here.

41    Finally, as mentioned, there are currently on foot in the Court several Warrabinga-Wiradjuri matters. As has been emphasised, the current joinder application is confined to NSD1786/2016 and in circumstances where Mr Kemp’s application was made after the expiration of the notification period for that claim. Accordingly, it was not open to Mr Kemp to become a party to the proceeding by the route set out in s 84(3) (see [15] above). The main country claim in NSD857/2017 covers a much broader area than the claim in this proceeding. Although that larger area covers but expressly excludes inter alia the area covered by NSD1786/2016, the applicant’s stated intention is to have the various claims consolidated with the main country claim after future act negotiations have been completed. The claim in NSD857/2017 was registered on 1 September 2017. Notification of that application was apparently delayed and notification will not expire until 7 May 2018. It appears, therefore, that it may be open to Mr Kemp to become a party to that proceeding if he is able to satisfy the requirements of s 84(3) of the NT Act, which requirements are notably different from those under s 84(5) concerning joinder.

Conclusion

42    For these reasons, the interlocutory application should be dismissed. There will be no order as to costs.

Associate:

Dated:    12 April 2018