FEDERAL COURT OF AUSTRALIA

Stock on behalf of the Nyiyaparli People v State of Western Australia (No 4) [2018] FCA 1370

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application of Slim Parker, Maitland Parker, Archie Tucker, Caroline Lee, Kelvistan Parker, Jarrod Black and Zoey Lethbridge be dismissed.

2.    The Court be notified of the intention of the Nyiyaparli applicant as to any application for costs by 12 noon on 4 September 2018.

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

REASONS FOR JUDGMENT

BARKER J:

Background

1    The Nyiyaparli native title claim WAD 6280 of 1998 was filed on 29 September 1998, and is presently programmed for a consent determination on 26 September 2018, almost exactly 20 years later. In accordance with orders made on 16 April 2018, a minute of proposed consent determination was filed on 31 August 2018.

2    On 28 August 2018, seven Banjima common law holders (Interlocutory Applicants), applied to be joined as respondents to the proceedings pursuant to s 84(5) of the Native Title Act 1993 (Cth), on the basis that they assert a native title interest as Banjima People in part of the Nyiyaparli claim area.

3    They propose that the Nyiyaparli claim area be split into two discrete areas, Part A and Part B, with Part A proceeding to consent determination, as programmed, and Part B – in relation to which they assert a native title interest – to be resolved at a later date.

4    The applicant in WAD 6280 of 1998 (Nyiyaparli applicant) and the State of Western Australia oppose the joinder application, and submit the interlocutory application should be dismissed. They reject the Part A/Part B splitting proposal.

5    On 3 September 2018 I dismissed the joinder application. These are my reasons for doing so.

Evidence in the interlocutory application

6    The Interlocutory Applicants rely upon:

(1)    affidavit of Mr Slim Parker affirmed 28 August 2018; and

(2)    affidavit of Mr Shaun Phillip Canning affirmed 31 August 2018.

7    The Nyiyaparli applicant relies upon the affidavit of Ms Katherine Anne Holloman affirmed 3 September 2018.

Principles for joinder

8    Subsection 84(5) of the Native Title Act empowers the Court to join a person as a party to the proceedings at any time 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. There are accordingly two joinder questions: (1) whether the Interlocutory Applicants have a relevant joinder interest; and (2) whether the Court in its discretion having regard to the interests of justice should order joinder.

Submissions of Interlocutory Applicants

9    The Interlocutory Applicants note that the Banjima People’s native title was determined in Banjima People v State of Western Australia (No 3) [2014] FCA 201 (the Banjima Determination). The Banjima Determination established that the Banjima common law holders are the Banjima People who:

(a)    are descendants of one or more of the following apical ancestors:

(i)    Bob Tucker (Wirilimura);

(ii)    Gawi;

(iii)    Yinini (Arju);

(iv)    Sam Coffin;

(v)    George Marndu;

(vi)    Whitehead;

(vii)    Yidingganin;

(viii)    Maggie (Nyukayi);

(ix)    Yandikuji; and

(b)    recognise themselves as a Banjima person, and are recognised by others as a Banjima person.

10    The Interlocutory Applicants state they are Banjima People and they seek to be joined to these proceedings by reason of their asserted native title in a small parcel of land within the larger Nyiyaparli claim area, identified in Mr Parker’s affidavit as the “Iron Valley Area”.

11    Their claim to hold a native title interest in this area, they contend, is supported by the decision in Banjima People v Western Australia and Others (No 2) (2013) 305 ALR 1; [2013] FCA 868 (Banjima Judgment) where the Court (Barker J) made the following “findings” about the eastern boundary of the Banjima claim area as it relates to the Nyiyaparli claim:

(1)    At [359]: “Having regard to the evidence referred to, and the opinions expressed by the anthropologists concerning the importance of not confusing ‘tribal’ identification with the way in which traditional rights and interests are derived, particularly in boundary areas, which I accept, I am satisfied that Barimuna is traditionally connected to the Banjima and that persons with Banjima ancestry, including David Stock, have recognised interests under Banjima law and custom in that area. The celebration of Barimuna in the Wardirba song cycle may not be definitive proof that a place falls within Banjima territory, but in this case taken with all the other evidence, including that of the anthropologists, I am well satisfied on the balance of probabilities that Weeli Wolli and Yandicoogina Creeks constitute the eastern boundary of the claim area.”

(2)    At [360]: “I find, therefore, that the Banjima held traditional rights and interests in the eastern boundary in the vicinity of Weeli Wolli and Yandicoogina.”

12    The Interlocutory Applicants submit that a consent determination in favour of Nyiyarparli in respect of this area will, on its face, be inconsistent with these findings, and refer to Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803 at [326]-[327] in that regard.

13    As to the two s 84(5) joinder requirements, the Interlocutory Applicants say it would appear to be uncontroversial that they have a relevant interest, being asserted native title rights and interests, in the proceedings, being an interest in land and waters in the claim area: Munn v Queensland [2002] FCA 486 at [8]; Davis-Hurst (on behalf of the traditional owners of Saltwater) v Minister for Land and Water Conservation (NSW) and Others (2003) 198 ALR 315 at [27]; [2003] FCA 541; Kokatha Native Title Claim v South Australia and Others (2005) 143 FCR 544 at [24]; [2005] FCA 836; Worimi Local Aboriginal Land Council v Minister for Lands (NSW) and Another (2007) 164 FCR 181 at [16]-[17]; [2007] FCA 1357; Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [18]-[19]; and Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [18].

14    As to whether the interests of justice favour joinder, they accept this involves an exercise of discretion by the Court, which in the present case involves the weighing of the prejudice that would be occasioned to them if the joinder were refused, against the potential for the joinder to substantially delay or otherwise affect the current proceedings which have been programmed to a consent determination.

15    The Interlocutory Applicants submit the present application can be contrasted with the joinder application in TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2016] FCA 553, where joinder was refused, as in that case:

(1)    the area of land in which the joinder applicant asserted an interest was extensive involving a 722 square kilometre area which substantially overlapped the existing proceedings;

(2)    there was no satisfactory explanation for the delay in bringing the proceedings; and

(3)    the Court was not satisfied as to the religious or spiritual connection of the joinder applicant to the land in question.

16    They submit that where, as in this case, a prospective respondent can point to a clear and legitimate objective that he or she hopes to achieve by being joined, then it will generally be appropriate to exercise the Court’s discretion in favour of the application (unless there are some other facts such as delay weighing against such an exercise) (Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [37]). Relevantly, it is said, the Interlocutory Applicants have a discrete objective, namely the exclusion of a small parcel of land to the west of Weeli Wolli Creek from the proposed consent determination.

17    The delay in making this application, they contend, is not something that should weigh against them in the Court’s exercise of its discretion, as the delay in this case does not appear likely to have a substantive effect on the timing of the proceedings. An explanation is provided for the delay in Mr Parker’s affidavit and they suggest the fault lies with the legal representatives for the Interlocutory Applicants, including Yamatji Marlpa Aboriginal Corporation (YMAC), and not with the Banjima People.

18    In short, the Interlocutory Applicants submit they have a clear connection to the claimed area, which has been recognised in the Banjima Judgment, and a religious and spiritual connection to sites within that area including Weeli Wolli Creek (see for example Banjima Judgment at [336], [353] and [642]) and Bindaguli.

19    Further, the Interlocutory Applicants note they have indicated an intention to lodge a competing application for a determination of native title in respect of the Iron Valley Area (cf TR (Deceased) on behalf of the Kariyarra – Pipingarra People v State of Western Australia [2016] FCA 1158 at [49]), however, would prefer not to do so unless it is absolutely necessary having regard to the costs involved in authorisation and their desire to discuss the matter in the first instance with Nyiyaparli elders.

Do the Interlocutory Applicants have a relevant interest?

20    It is accepted that a claim to hold native title may constitute an interest which may be affected by a determination, within the meaning of s 84(5) of the Native Title Act.

21    The primary position advanced by the Interlocutory Applicants in this regard is that in the Banjima Judgment I made a positive finding recognising Banjima native title in the Iron Valley Area, beyond the area in which I actually determined native title to exist. I did not.

22    As the Nyiyaparli applicant submits, I stated that “Weeli Wolli and Yandicoogina Creeks constitute the eastern boundary of the claim area” and that “the Banjima held traditional rights and interests in the eastern boundary in the vicinity of Weeli Wolli and Yandicoogina”. This is consistent with the present Banjima Determination and Nyiyaparli claim boundary in that vicinity.

23    The findings in the Banjima Judgment were plainly made in the context of an assertion put in issue by the State at trial as to whether part of what is now the Banjima Determination area, being the land between Weeli Wolli Creek and Barimuna (i.e. west of Weeli Wolli and referred to in the Banjima Judgment as the Yandicoogina area), was Banjima country, or not: see Banjima Judgment [2(1)], [177], [331]; map at Annexure “KAH-2” to Ms Holloman’s affidavit. The finding concerned the boundaries as claimed in the then Banjima native title claim, which are the same boundaries identified in the Banjima Determination. The existence of Banjima native title in the Nyiyaparli claim area was not in issue in the Banjima Judgment. The Banjima were not claiming native title beyond the area identified in the maps which are now in the final determination. My finding related to that claim, and nothing more.

24    I accept the Nyiyaparli applicant’s submission that, in this case, where there is some evidence of an asserted Banjima native title interest, the evidence on the interlocutory application does not establish that the Interlocutory Applicants have even a prima facie case that they would succeed in a native title claim over the Iron Valley Area in question, for the following reasons.

25    First, only one of the seven Interlocutory Applicants, Mr Parker, has provided affidavit evidence in this interlocutory application.

26    Secondly, Mr Parker deposes to becoming aware in 2010 that “the boundaries of the Banjima native title claim did not accurately reflect the traditional boundaries of the Banjima people”. Reference is made to Weeli Wolli Creek being a boundary for Banjima country. While the map in Ms Holloman’s affidavit at Annexure “KAH-2” shows that to be generally true, Mr Parker’s affidavit does not descend to detail in relation to the particular area now in issue, north of the junction between Weeli Wolli and Yandicoogina Creeks; although there is some evidence in Mr Parker’s affidavit at [9] and in an extract from the expert report of Dr Palmer at Annexure “SP2”. The extract (2 pages) refers to information gathered by Dr Palmer from some other Banjima People. It does not disclose Dr Palmer’s ultimate conclusion in relation to the area now in question, nor whether Dr Palmer considered competing information from Nyiyaparli People or other Banjima People in relation to the area now in question.

27    The evidence in Mr Canning’s affidavit at [5] as to Weeli Wolli being culturally significant to both Banjima and Nyiyaparli, and to it generally being a boundary, may be accepted, as may the proposition that native title boundaries are approximations, as Mr Canning suggests at [6]-[7]. However, as the Nyiyaparli applicant submits, the assertion implicit in Mr Canning’s affidavit at [6]-[7], that there is a precise traditional boundary, is far less clear. It is clear from the Banjima Judgment, and Ms Holloman’s affidavit, that there are competing views as to where Nyiyaparli and Banjima country start and end in this area. The native title process, however, requires the drawing of distinct boundaries. That frequently requires approximation and accommodation in order to bring certainty and finality to the native title claim process. That leads in to the next point.

28    Thirdly, and relevantly to this last point, the Martu Idja Banyjima claim was made in 1998 by significant Banjima elders who were a generation above Mr Parker, including two of Mr Parker’s uncles, the late Horace Parker and the late Wobby Parker. It is to be inferred from the fact that they authorised, and were applicants in, a claim that ended at what is now the Banjima Determination boundary, that they were satisfied the boundary “accurately reflect the traditional boundaries of the Banjima people”, to use the words of Mr Parker at [2].

29    Also of significance here is that the Nyiyaparli People previously made a native title claim that covered part of what is now the Banjima Determination area. The claim boundary was subsequently contracted to its present position by agreement between Nyiyaparli elders and Banjima elders at the time, including Mr Parker’s uncles, as explained in Ms Holloman’s affidavit at [6]-[11]. Mr Canning’s suggestion that the current boundary is a mapping error is to be discounted.

30    Fourthly, I notice that in 2007 and 2010 there were s 29 notices issued under the Native Title Act in relation to the proposed grant of mining leases in the Iron Valley Area. The Banjima People evidently participated in future act processes in respect of land to the west of the current claim boundary, but did not ever consider it appropriate to file an overlapping native title claim or assert, as against the Nyiyaparli, a native title interest within the Nyiyaparli claim area in relation to the proposed grant of M47/1361 or M47/1439.

31    Fifthly, two further Banjima claims (WAD 319 of 2010 and WAD 371 of 2010) were authorised by the Banjima People in 2010. Interlocutory Applicants Maitland Parker and Archie Tucker were members of the applicant in WAD 371 of 2010. Those claims did not overlap the Nyiyaparli claim. Some explanation for that may be contained in the Mr Parker’s affidavit at [3], to the effect he was advised by his solicitor Mr Sheiner not to make another native title claim at that time. However there is no evidence other Banjima People who authorised the Banjima claims raised any issue with the claim boundary.

32    Sixthly, there has not yet been a meeting of Banjima People seeking to authorise a Banjima claim over part of the Nyiyaparli claim area. There is no evidence as to whether any new Banjima claim would in fact be authorised.

should joinder be refused as a matter of discretion?

33    In any event, I consider it is not in the interests of justice that the Interlocutory Applicants should be joined as a party to this proceeding.

34    First, the joinder of the Interlocutory Applicants as respondents is likely to delay and frustrate the resolution of the Nyiyaparli claim, especially a resolution by consent as is proposed by the Nyiyaparli applicant. The preparations for the hearing at which that determination is to be made by consent are well advanced, and the consent determination has been negotiated on the basis that no party has disputed the Nyiyaparli’s claim to the area now in question.

35    Secondly, the joinder application has been brought a short time (less than one month) before the proposed consent determination. This is a similar situation to Yindjibarndi, save that in Yindjibarndi the joinder application was shortly before the commencement of a trial whereas here it is shortly before the conclusion of the Nyiyaparli claim proceedings.

36    Contrary to the Interlocutory Applicants’ submission, there is no satisfactory explanation for the delay in bringing a joinder application or an overlapping native title claim. The submission that “the fault lies with the legal representatives for the [Interlocutory] Applicants, including YMAC, and not with the Banjima People”, as the Nyiyaparli applicant submits, is not borne out by the evidence.

37    In his affidavit at [3], Mr Parker deposes that he spoke to Banjima legal representatives about “these boundary issues” in 2010 and received oral advice from Mr Sheiner not to make an overlapping claim at that time.

38    At [5]-[10], Mr Parker deposes to a discussion involving legal representatives in August 2014 at which the Board of the Banjima registered native title body corporate, BNTAC, “gave a direction to our solicitors to negotiate a royalty from the Iron Valley mine as it was in Banjima country”. The issue then was about financial benefits, not making an overlapping claim.

39    At [11], Mr Parker deposes to a discussion involving legal representatives in October 2014 at which those representatives were instructed to write to Nyiyaparli “advising that Iron Valley is on Banjima traditional country”.

40    At [12], Mr Parker deposes to a discussion in November 2014 at which legal representatives were present concerning a draft letter to Nyiyaparli regarding Iron Valley. There is no evidence the letter was ever sent. The draft letter annexed to Mr Parker’s affidavit is on Roe Legal Services letterhead and is clearly still in draft. The draft asserts “traditional ownership over the area subject to the Iron Valley project” and proposes a meeting to discuss “the best way forward”. It is apparent from the incomplete preceding paragraph that this was to be a way forward in relation to sharing benefits from the Iron Valley mine. Thus it seems Roe Legal Services acted on the instruction referred to at [11] of Mr Parker’s affidavit, by preparing a draft letter. There is no evidence as to why it was not sent.

41    At [16], Mr Parker deposes to having instructed Roe Legal Services on 16 May 2018 to provide advice to the BNTAC Board “on lodging an overlapping native title claim”. It appears from [16]-[17], that advice was given to a Board meeting on 16 and 17 August 2018, by Roe Legal Services.

42    There is no indication in any of that evidence that any legal representative failed to do anything they were instructed to do, inconsistent with what Mr Parker now asserts at [21(c)].

43    In particular, I accept the submission of the Nyiyaparli applicant that there is no evidence YMAC failed to do anything it was instructed to do, and in light of s 203BB(4) of the Native Title Act, no inference can be drawn that YMAC could have been instructed (or could have accepted an instruction) to lodge an overlapping claim.

44    It is also apparent from Mr Parker’s evidence that:

(1)    Insofar as there were discussions involving the BNTAC Board and legal representatives, the focus was on future act benefits from the area now in question.

(2)    Neither Mr Parker, nor other Interlocutory Applicants, took any proactive steps themselves to seek to be joined to the Nyiyaparli claim, or to file an overlapping claim, at any time between 2010 and 16/17 August 2018, a period of eight years: cf Mr Parker’s affidavit at [13]-[14], [17].

45    It is unreasonable conduct, to a high degree, for the Interlocutory Applicants to wait eight years before raising the prospect of an overlapping native title claim with the Nyiyaparli applicant, and to do so one month before the proposed Nyiyaparli consent determination and after the determination has been authorised by the Nyiyaparli claim group: cf Yindjibarndi especially at [113]-[119], [122]-[150].

46    Thirdly, the delay is in a context where the boundary between the Banjima Determination and the Nyiyaparli claim has been longstanding and was the result of an agreement reached between the elders for both groups many years ago. Consistently with that agreement, the Nyiyaparli contracted their claim back to the present boundary, an agreement that facilitated the Banjima obtaining the Banjima Determination in 2014.

47    Fourthly, the fact the Interlocutory Applicants’ interest relates to a relatively small area of land counts against the joinder. There is no evidence the area is of particular significance to the Interlocutory Applicants or other Banjima People; and the fact the area has never been the subject of a Banjima claim counts against any inference that it is. Banjima have a determination of native title over what has until now been understood, for Native Title Act purposes, to be the extent of Banjima traditional country.

48    Fifthly, there would be considerable injustice to the Nyiyaparli applicant and Nyiyaparli People if joinder were now to be ordered. The stated objective of the joinder is to prevent the Nyiyaparli obtaining the proposed consent determination, as stated by Mr Parker at [19], [21(d)] of his affidavit. While it may be possible to split the Nyiyaparli determination into a Part A and Part B, and proceed with a Part A consent determination on 26 September 2018, that way of proceeding depends upon a number of matters, including: obtaining a clear and binding commitment from the Interlocutory Applicants as to precisely which area they say is Banjima country; the State and all other respondents agreeing to change the currently agreed consent determination; the minute of consent determination being amended, including having new maps produced and a new minute signed by all parties; and the Court agreeing to proceed on 26 September 2018 in the above circumstances.

49    The Nyiyaparli applicant and solicitors would also need to carefully consider if they have authority to proceed on that basis. No such decision has yet been made. If it is decided that a further claim group meeting was required to authorise the amended minute of consent determination, the usual minimum 14 days’ notice for such a meeting would mean that authorisation and instructions could not be obtained until at best nine days before the listed consent determination hearing date.

50    Even if all that were to occur, the Nyiyaparli People will be faced with considerable delay and cost in dealing with Part B, including the very real possibility of a contested trial over the area.

51    Sixthly, at [19] of his affidavit, Mr Parker says that the joinder would allow time for discussion between Banjima and Nyiyaparli. As the Nyiyaparli applicant observes, there has been 20 years for such discussion in relation to the native title claim boundaries and at least 11 years in relation to the Iron Valley mine. Leaving that aside, if the discussion results in Banjima not pressing a claim then the Nyiyaparli determination will have been delayed for no good reason. If the discussion does not resolve the matter then there will need to be a contested trial. While negotiation and discussion is ordinarily consistent with the objects of the Native Title Act, in these circumstances it would instead be contrary to the interests of justice.

52    The Nyiyaparli reasonably submit they are entitled to finality to their litigation. The joinder of the Interlocutory Applicants at this late stage would be oppressive to the interests of the Nyiyaparli People, as well as to the interests of the other respondents to the Nyiyaparli claim who have now consented to a determination of native title. The State, significantly, also opposes the joinder application essentially for the reasons advanced by the Nyiyaparli applicant.

53    In conclusion, the current claim boundary is the result of an agreement in 1998 between the then Banjima and Nyiyaparli applicants. On the back of that agreement the Banjima obtained the Banjima Determination in 2014. The Banjima People have had many years in which to raise an issue with the boundary but have not done so until one month before the determination. There is no adequate explanation for the delay, save for the present future act proposed in the Iron Valley Area. It is not in the interests of justice to join the Interlocutory Applicants now as a respondent to this proceeding to litigate that issue. If the Banjima had wished to claim the Iron Valley Area, they should have done so at the Banjima trial. They did not do so. The manner in which their claim was then advanced was that the boundaries depicted on the claim maps were the traditional Banjima boundaries and that no claim was made to territory beyond the represented boundaries. The Court found that claim to be made out. It did not find that the Banjima had native title in respect of any other land or waters.

54    It would not, in all of the circumstances, be in the interests of justice to now order the joinder of the Interlocutory Applicants to the Nyiyaparli claimant application.

Orders

55    For these reasons on 3 September 2018 the Court ordered:

(1)    The interlocutory application of Slim Parker, Maitland Parker, Archie Tucker, Caroline Lee, Kelvistan Parker, Jarrod Black and Zoey Lethbridge be dismissed.

(2)    The Court be notified of the intention of the Nyiyaparli applicant as to any application for costs by 12 noon on 4 September 2018.

Associate:

Dated:    4 September 2018