FEDERAL COURT OF AUSTRALIA

Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (Port Augusta Proceeding) [2020] FCA 888

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by Andrew Alfred Starkey on 24 December 2019 is dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 84(5) of the Native Title Act 1993 (Cth), Andrew Alfred Starkey is joined as a respondent.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    In these two proceedings the Barngarla people and the Nukunu people seek determinations of native title under the Native Title Act 1993 (Cth) (NT Act) in adjacent areas in and around the City of Port Augusta on the Spencer Gulf in South Australia. In these reasons, I will refer to the proceedings as the Barngarla Claim and the Nukunu Claim respectively.

2    By interlocutory applications filed on 24 December 2019, Mr Andrew Starkey applies to be joined as a respondent in each proceeding. The Barngarla people, the Nukunu people and the State of South Australia oppose Mr Starkey’s applications on substantially the same grounds. Given the common issues, it is convenient to determine Mr Starkey’s applications in the two proceedings together. With the consent of the parties the applications for joinder are now decided on the papers.

3    The interlocutory applications are made against a protracted history of native title litigation concerning the Spencer Gulf region and surrounding areas. It is necessary to summarise some of that history before proceeding further.

CONTEXT

4    Section 225 of the NT Act provides that determination of native title is a determination whether or not native title exists in relation to a particular area of land or waters and, if it does exist, a determination of (relevantly):

(a)    who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)    the nature and extent of the native title rights and interests in relation to the determination area; and

(c)    the nature and extent of any other interests in relation to the determination area; and

(d)    the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of the Act); …

…

5    Section 223 defines the expressions “native title” and “native title rights and interests” relevantly as follows:

223 Native title

Common law rights and interests

(1)    The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)    the rights and interests are recognised by the common law of Australia.

6    The Barngarla Claim and the Nukunu Claim were first commenced in 1998. The claim areas in each proceeding overlapped in and around Port Augusta. On 4 February 2011, Mansfield J made orders pursuant to s 67 of the NT Act consolidating the proceedings to the extent of the overlap. The consolidated proceeding was then known as the Overlap Proceeding.

7    In 2016 the Kokatha people commenced an application for a determination of native title known as the Kokatha #3 Native Title Claim. The claim of the Kokatha people related to the same land and waters then subject to the Overlap Proceeding. Consolidated together, the three claims were then known as the Port Augusta Overlap.

8    Mr Starkey is a Kokatha man. He was among the named applicants in Kokatha # 3. Before commencing that proceeding, representatives of the Kokatha people had attempted, unsuccessfully, to participate in negotiations then being undertaken by the Barngarla and Nukunu peoples to an Indigenous Land Use Agreement (ILUA) in respect of the proposed determination area.

9    A number of native title determinations have been made in relation to land and waters unaffected by the Port Augusta Overlap. They may be referred to as the Kokatha Part A Determination, the Barngarla Determination and the Nukunu Determination. The Kokatha Part A Determination recognised the native title of the Kokatha Uwankara people over a large area of land to the immediate west of, and contiguous with, the western boundary of Lake Torrens: Starkey v State of Australia [2014] FCA 924; 319 ALR 231. The Barngarla Determination recognised the native title of the Barngarla people in an area of land on the Eyre Peninsula, extending east to Spencer Gulf near Port Augusta and north to the southern end of Lake Torrens: Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724 and Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 3) [2018] FCA 552. The Nukunu Determination recognised the native title of the Nukunu people in an area on the western side of Spencer Gulf extending northward to the southern boundary of what was then the Port Augusta Overlap: Turner on behalf of the Nukunu People v State of South Australia [2019] FCA 863. A negative determination was made in relation to the eastern portion of the area forming the subject of the claim in Turner.

10    In Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 (LT Overlap), Mansfield J dismissed separate claims for determinations of native title made by the Kokatha, Barngarla and Adnyamathanha peoples over the land and waters in Lake Torrens. His Honour made findings to the effect that the Kokatha people had not occupied the land and waters in and around Lake Torrens prior to sovereignty in a way that would give rise to native title rights and interests in that area.

11    On 26 April 2019 White J made an order summarily dismissing Kokatha #3 on the joint application of the Barngarla people, the Nukunu people and the State of South Australia: Croft v State of South Australia (Port Augusta Overlap Proceeding) (No 2) [2019] FCA 581 (Croft No 2). His Honour concluded that the claim did not enjoy reasonable prospects of success, having regard to the conclusions of Mansfield J in LT Overlap about the rights and interests of the Kokatha people at sovereignty in the Lake Torrens area, among other things. His Honour said that it was unlikely that the Kokatha people would have had native title rights and interests in land that was removed from the land and waters the subject of the Kokatha Part A Determination in circumstances where intervening land belonged to a different cultural group. His Honour also referred to the absence of historical or ethnographic material supporting the occupancy of the claim area by the Kokatha people at sovereignty: at [49], [53] – [55], [66] – [73], [81].

12    There was no appeal from the judgment in Croft No 2.

13    Following the dismissal of Kokatha #3, the Barngarla people and the Nukunu people reached a mediated agreement to resolve their disputed overlapping claims. The effect of their agreement was that the boundaries of the Barngarla Claim and Nukunu Claim were retracted, eliminating the overlap. The revised boundaries of the respective claims now include a line passing roughly East-West through Port Augusta. Amended applications have been filed to reflect that agreed outcome. The Barngarla people and the Nukunu people are presently in discussions with the respondents in each matter with a view to their respective claims proceeding to determinations of native title by consent in accordance with s 87 of the NT Act.

PRINCIPLES

14    Section 66 of the NT Act requires the Registrar to give notice containing details of a native title application to the persons and bodies described in subs (3)(a) and to specify a day as the notification day for the application: subs (8).

15    The persons included in s 66(3)(a) include:

…

(iv)    subject to subsection (5), any person who when the notice is given, holds a proprietary interest, in relation to any of the area covered by the application, that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth, a State or Territory; and

…

(vii)    if the Registrar considers it appropriate in relation to the person—any person whose interests may be affected by a determination in relation to the application; and

16    The Registrar may apply to the Court for an order as to whether a particular person or class of person must be given notice under s 66(3)(a) or how the notice must be given: s 66(7).

17    It is common ground that Mr Starkey is not a person to whom notice was given under s 66(3)(a) in respect of either the Barngarla Claim or the Nukunu Claim.

18    Section 66A provides that if an amended application is given to the Registrar, the Registrar must give notice of the amended application, relevantly, to each person who, when the Registrar receives the copy, is a party to a proceeding under Pt 4 of the Act in relation to the application.

19    Section 84 of the NT Act relevantly provides:

Applicant

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

Affected persons

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

(a)    any of the following applies:

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

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

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

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

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

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

…

Joining parties

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

20    For the purposes of subs (3), the word “interest”, in relation to land or waters, is defined in s 253 of the NT Act as follows:

interest, in relation to land or waters, means:

(a)    a legal or equitable estate or interest in land or waters, or

(b)    any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(i)    the land or waters; or

(ii)    an estate or interest in the land or waters; or

(c)    a restriction on the use of the land or waters, whether or not annexed to other land or waters.

21    Standing alone, the word “interest” is not defined in the NT Act. It is a word of “broad conception”: Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310 at [14] (Greenwood J). For the purposes of s 84(5), it is not necessary to demonstrate an interest that is proprietary or equitable in nature, nor one that the Court itself may have jurisdiction to enforce: Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 at 7 – 8 (Black CJ), 19 (Lockhart J) 37 and 42 (Merkel J). However, the asserted interest must be “genuine”, “not indirect, remote or lacking in substance” and “capable of clear definition”: Sumner v State of South Australia [2014] FCA 534 at [13] (Mansfield J).

22    The meaning of the word “privilege” in para (b) of the definition was recently discussed by the High Court in Western Australia v Manado [2020] HCA 9; 94 ALJR 352. The issue was whether ability of members of the public to access unallocated Crown land (validly confirmed in accordance with s 212 of the NT Act) was an “interest in relation to land or waters” such that it should be included as an “other interest” in a determination by reason of s 225(c) and its relationship with native title rights and interest specified in accordance with s 225(d). Nettle J said:

The meaning of ‘privilege’ in s 253 of the Native Title Act

56    If the definition of ‘interest’ in s 253 of the Native Title Act stood alone, it might be that ‘privilege’ would be taken to mean some advantage in relation to land that is peculiar to an individual or group of individuals as opposed to members of the public generally. But s 253 of the Native Title Act does not stand alone, and it is not to be construed as if it did. Although a definitional provision, it is part of the Native Title Act, and, like all other provisions of an Act, it is to be construed in the context of the Act as a whole. Just as the definition of ‘interest’ and, therefore, the meaning of ‘privilege’ in s 253 informs the meaning of the other provisions of the Native Title Act that refer to ‘interest’ or ‘interests, such other provisions, bearing in mind their purpose and the mischief to which they are directed, inform the meaning of ‘interest’ and, therefore, the meaning of ‘privilege’ in s 253. As McHugh J noticed in Kelly v The Queen, ‘[n]othing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment’.

57    If ‘privilege’ in the definition of ‘interest’ in s 253 were confined to a privilege in the sense of some right, advantage or immunity enjoyed by some beyond the usual rights or advantages of others, it would exclude the ability of the public to access and enjoy the foreshore which exists as a result of the lack of legal prohibition from entering upon unallocated Crown land, validly confirmed by s 14 of the Titles Validation Act in accordance with s 212(2) of the Native Title Act. In that event, the confirmed ability would not be within the description of ‘any other interests’ in s 225(c), and so would not be recorded in the native title determinations to which it relates despite impairing the relevant native title rights. That this is so provides a strong indication that ‘other interests’ in s 225(c) is a sufficiently broad concept to include the confirmed ability of the public to access and enjoy the foreshore. And in turn, that provides a strong indication that the confirmed ability is within the notion of a ‘privilege’ in the definition of ‘interest’ in s 253.

58    Given, then, that it is the duty of the Court to avoid, so far as the text of the Act permits, a construction inconsistent with the purpose of a provision and instead ‘look to see whether any other meaning produces a more reasonable result’, and, as has been seen, that one available, and not inapposite, meaning of ‘privilege’ is of a liberty that the law tolerates but does not support by imposing a duty on anyone else, it should be concluded that ‘privilege’ in the definition of ‘interest’ in s 253 includes the confirmed ability of the public to access and enjoy the foreshore which exists as a result of the lack of legal prohibition on entering upon unallocated Crown land.

(footnotes omitted)

23    As Kiefel J (as her Honour then was) said in Wakka Wakka People No 2 v State of Queensland [2005] FCA 1578 (at [6]) it is not for the Court hearing an application for joinder to determine whether the applicant’s asserted interest in fact exists. Nevertheless, the applicant for joinder must show a prima facie case in relation to the interest that is asserted. The word “may” in s 84(5) imports a requirement that there also be a prima facie case that the asserted interest may be affected if a determination of native title were to be made in the terms sought. It must be shown that the joinder applicant’s interests may be genuinely, demonstrably and not indirectly affected by the determination: Byron at 7E, 8A, (Black CJ) 42E (Merkel J); Birri Gubba v State of Queensland (2003) 127 FCR 348 at [46] (Drummond J). It is necessary to consider how the interests of the joinder applicant and the interests of the native title claim group may interact: Byron at 8 (Black CJ).

24    The words “and it is in the interests of justice to do so” in s 84(5) were inserted by the Native Title Amendment Act 2007 (Cth) and apply to proceedings commenced after 15 April 2007 (Sch 2, item 5). Each of these proceedings was commenced after that date. However, the inclusion of the words added nothing of substance to the matters that the Court should consider in the exercise of its discretion to join a person as a party to a proceeding under the NT Act: Barunga v State of Western Australia (No 2) [2011] FCA 755 at [163] (Gilmour J).

25    In written submissions, Mr Starkey relied on the general law in relation to standing discussed by the High Court in Onus v Alcoa of Australia Limited (1981) 149 CLR 27. In that case, descendants of an Aboriginal group who were custodians of objects of cultural and spiritual significance to them were held to have standing to commence an action to restrain conduct that would constitute a criminal offence against a State law providing for the protection of Aboriginal relics. Gibbs CJ referred to the general principle (stated in Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 (ACF)) that a plaintiff has no standing to bring an action if his or her interest in the subject matter is no greater than any other member of the public. The test for standing is whether the plaintiff has a “special interest in the subject matter of the action”: ACF at 530, 531, 537, 547 – 548. Gibbs CJ went on to say that the rule was “obviously a flexible one … the question what is a sufficient interest will vary according to the nature and subject matter of the litigation”. His Honour concluded (at Onus 36):

… the appellants have an interest in the subject matter of the present action which is greater than that of other members of the public and indeed greater than that of other persons of aboriginal descent who are not members of the Gournditch-jmara people. The appellants, and other members of the Gournditch-jmara people, would be more particularly affected than other members of the Australian community by the destruction of the relics. The appellants claim that, in common with other members of the Gournditch-jmara people, they are the custodians of the relics according to the laws and customs of those people. They claim that the relics are of cultural and spiritual importance to them, and that they have used the relics to teach their children the culture of their people.  …

26    See also Batemans Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247 (Gaudron, Gummow and Kirby JJ) at [46] and Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 558 (Brennan, Dawson, Toohey, Gaudron and McHugh JJ).

27    Statements of principle about standing at general law may inform the interpretation and application of s 84(5) of the NT Act, but they are not to be erected as a substitute for the statutory test for the joinder of a party.

28    Whether approached as a matter of construction of s 84(5) or as a matter of standing under the general law, the subject matter of the proceedings is not the land and waters falling within the claim areas per se. Rather, the subject matter is the justiciable controversy as to whether determinations of native title should be made in each proceeding in the particular terms sought by the claim groups. A critical question on the present applications is how (if at all) Mr Starkey’s asserted interests may be affected by any adjudicated or agreed outcome of that particular controversy.

THE JOINDER APPLICATION

29    The applications each bear the heading “Interlocutory application to join parties [sic] to main application after relevant period”. They are each supported by four affidavits sworn by Mr Starkey. An affidavit of 19 March 2020 was said to constitute Mr Starkey’s submissions in “reply”. It prompted the opposing parties to file replacement submissions so as to deal with its contents.

30    Mr Starkey is named as the sole applicant on both interlocutory applications. He was self-represented when they were filed. He filed no primary written submissions in support of the applications when given the opportunity to do so. All of the affidavits contain material in the nature of submissions and those portions of the affidavits have been received and read as such.

31    The interlocutory applications and supporting affidavits did not specify the provision of the NT Act pursuant to which orders were sought. The title given to his applications suggested that he claimed to be a person who would have a right to be joined as a party if only he had observed the time frame prescribed in s 84(b). That presupposes that the time frame was applicable to him.

32    As will be seen, the nature of the rights and interests described in at least one of Mr Starkey’s affidavits resemble those of a native title holder, although there was some indication in the affidavits that the interests asserted by Mr Starkey may be more confined. In addition, the interests asserted in the affidavits in many respects suggested that Mr Starkey had validly made the applications in a representative capacity.

33    The Barngarla people, the Nukunu people and the State of South Australia each filed written submissions addressing the consequences of these ambiguities.

34    Subsequently, Mr Starkey obtained legal representation and filed lengthy submissions purportedly in reply. In large part, those submissions addressed matters that ought properly to have been addressed at the time that Mr Starkey was ordered to file his primary submissions. The parties opposing the applications have not sought the opportunity to file any materials by way of rejoinder.

evidence

35    Mr Starkey was not cross-examined on his affidavits.

36    The following is a summary of the additional assertions made by Mr Starkey as forming the factual basis for his joinder as a respondent. The respondents submit that the asserted facts should either not be accepted or that they do not give rise to a relevant “interest” within the meaning of s 84(5).

37    Mr Starkey states that he was conceived and born in Port Augusta and that he has lived and worked in and around the relevant claim areas all of his life. He states that he has the status of a Wati (senior law man) among the Kokatha people and that, as a Wati, he has custodial responsibilities in sites of significance to the Kokatha people and responsibilities in respect of culturally sensitive information that is confidential to them. Mr Starkey asserts that his Wati status and his custodian/informant status was inherited from Kokatha elder Max Thomas in accordance with Kokatha law and custom.

38    Mr Starkey states that Kokatha “culture, law and stories” extend beyond the area of the Kokatha Part A Determination and into the areas subject to the Barngarla Claim and the Nukunu Claim. He asserts that there are a number of sites of significance to the Kokatha people in those areas. He says, in relation to those sites:

All I am wanting to protect here are the interests in the recorded and registered historical sites that are covered under the South Australian Aboriginal Heritage Act 1988.

39    Mr Starkey states that he wants to be joined as a respondent in each proceeding “to try to stop desecration of heritage sites”. He states that he should be joined because:

otherwise the court will not hear all the relevant evidence including the full story of Kokatha historic and cultural connection to the land in the relevant claim area before making any determination in the main proceeding

…

the gravity of the effect on my interests and the Kokatha culture that any determination in the main proceeding may have – it may well be the beginning of an irrevocable loss of recognition of Kokatha’s long historic connection to the relevant claim area.

…

I should be able to have a say or voice my concern about the protection of our heritage sites in their native title claims.

40    Mr Starkey lists the activities he asserts the “Kokatha People” have practiced and continue to practice on the sites as follows:

 1)    Access country

 2)    Impart cultural knowledge about places and their history

3)    Exercise traditional forms of respect and seniority including the right to protect and maintain the site including from the misuse of cultural knowledge associated with that area

 4)    Take younger people onto country/sites to learn about the places from which they came, and which embody their personal and genealogical history

  5)    Assess impacts on and changes to flora, fauna, water sources and landscape

 6)    Revisit sites, significant areas and living places with significant emotional attachment

 7)    Identify (and use) traditional resources such as water, firewood and medicinal plants and food, including things like fish, lizards

 8)    Locate and use stone and minerals such as ochre, silcrete etc. and trade in those things

  9)    Talk in Kokatha language in culturally meaningful and appropriate way

10)    Bring as many people as possible onto country but also control, by people asking for consent first, the use and enjoyment by others of the resources etc.

41    He goes on to assert:

If Nukunu or Barngarla are granted native title, particularly if they are granted exclusive possession, then I understand that my right or ability to continue to do these activities cannot be guaranteed. And because of the animosity between our groups I think it is likely that Kokatha cultural laws will not be respected. I fear that Kokatha culture will not be recognised or respected and may be desecrated by being absorbed into their cultures and then lost forever in this area.

42    The affidavits and their annexures refer to 37 sites of asserted heritage significance to the Kokatha people. At least two of those sites (Saltia Hill and Devil’s Peak) appear to fall within the area covered by the Nukunu Determination and another appears to be situated in the area subject to the Barngarla Determination. Those sites fall outside of the claim areas in these two proceedings. The remaining sites said to be of concern to Mr Starkey fall within one or other of the Barngarla Claim area or the Nukunu Claim area.

43    In support of his claimed interest in those sites, Mr Starkey relies upon a heritage survey conducted by anthropologist Mr Tom Gara in 1989 (the Gara survey).

44    The Gara survey was a community based heritage survey of sites of asserted significance to the Barngarla, Kokatha and Nukunu peoples in and around the areas presently subject to the claims in these proceedings. The author was accompanied by a number of informants, including Kokatha elder Max Thomas. Its publication predates the enactment of the NT Act. The author of the report refers to “traditional Kokatha lands north and west of Port Augusta”. There is a reference in the report to disputes between Aboriginal groups over territorial boundaries.

45    The author states:

Kokatha people regard themselves as being the custodians of sites in the Port Augusta area and in the low range of hills down the western side of the gulf, although they acknowledge that Pangkala people also have interests there. The Kokatha also accept responsibility for sites on the eastern side of the gulf in what was formerly Nukunu territory. Responsibility for these sites is based on kinship and ritual links between the Kokatha, Pangkala and Nukunu in prehistoric and historic times. Initiation and other ceremonial activities involving Kokatha, Pitjantjatjara, Yankuntjatjara and other Aboriginal people took place at sites near Port Augusta until the 1940s and have helped to strengthen Kokatha associations with this area.

46    The author reports that Kokatha people migrated southward and that, by the late 1920s, permanent fringe camps of principally Kokatha people had been established on the outskirts of Port Augusta. The author states:

8.5 Mythological sites

A number of sites of great mythological and/or ceremonial significance occur in the Port Augusta area and in the country immediately to the north and north-west. The head of Spencer Gulf appears to have been the point where the tracks of a number of important ancestral beings crossed; from this area Dreaming tracks run northwards towards Central Australia, eastwards into the Flinders Ranges and westwards to the Gawler Ranges and the west coast. Initiations and other ceremonies were held at some of these sites within the memory of Kokatha people still alive today.  …

Several sites of great significance occur within the city of Port Augusta. While some of these remain virtually undisturbed, others have already been destroyed by urban, commercial and industrial developments. These sites and others north and north-west of Port Augusta are not only of great significance to Kokatha people but are also important to Aboriginal people in the Pitjantjatjara Lands and elsewhere in central Australia. The Kokatha and other Aboriginal people are greatly concerned about the threat to these sites posed by sandmining activities, residential development etc.  …

47    Under the heading “Significance of sites to Kokatha People”, the author states:

The Kokatha people who accompanied me on field trips had been born in that country and their parents and/or grandparents had also come from that country. My informants had spent most of their early lives working on the sheep and cattle stations in the Gawler Ranges, in the Lake Torrens - Lake Gairdner area and around Port Augusta and they know this vast tract of land and its resources intimately. Although there are now only a few Kokatha people who have been initiated and hence know the detailed mythologies of the area, the non-secret aspects of most of the major myth cycles are generally known. Over the last decade the Kokatha have developed close links with the Pitjantjatjara and Yankuntjatjara, who they regard as upholders of the traditional law. Senior initiated Pitjantjatjara and Yankuntjatjara elders know the major myth cycles relating to Kokatha country and hold these mythologies ‘in trust’ for the Kokatha. The KPC continues to consult with these elders in matters relating to mining developments and other activities within Kokatha territory.

The Kokatha regard campsites, stone arrangements, painting and engraving sites and other archaeological features as physical manifestations of their link to their land and proof of their prior occupancy. To the Kokatha, their knowledge of the mythological sites and the songs and ceremonies associated with these sites is proof of their right to ‘speak for’ that country when sites are threatened by development or when other Aboriginal groups are perceived as intruding into the traditional Kokatha area. The Kokatha regard the destruction of sites as being the destruction of the tangible proof of their former occupation of the area and their links to the land as well as threatening the revival of their culture.

48    The author states that the sites of Kokatha significance were identified by Max Thomas who was said to be “very knowledgeable concerning Andamooka – Lake Torrens area and his knowledge of mythological sites extends south to Port Augusta”.

49    Mr Starkey also relies upon a report prepared by Australian Cultural Heritage Management in 2010 and a draft cultural heritage assessment undertaken in 2012. Mr Starkey is identified as a person who identified Kokatha heritage sites for the purposes of each of the reports. At the time of the latter report he was the Chairman for the Kokatha peoples and Kokatha Mula Land Council. The reports draw on some of the matters identified in the Gara survey, particularly artefact scatters of asserted significance to the Kokatha people. Whilst its purpose and provenance is somewhat unclear, the latter draft report evidences a degree of coordination between the Barngarla, Nukunu and Kokatha peoples in the identification and protection of heritage sites in the relevant area.

50    Mr Starkey asserts that his family “and other Kokatha informants” have caused sites of Kokatha cultural significance to be registered under the Aboriginal Heritage Act 1988 (SA) (AHA). The number of sites registered is said to be “almost certainly more than Barngarla and Nukunu together”. He asserts that the Barngarla and Nukunu people will not adequately protect the interests of the Kokatha people in the sites. He claims that a site of significance to the Kokatha people near Davenport has recently been destroyed in the presence of Nukunu persons.

51    Mr Starkey points to the recent desecration to support his argument that the provisions of the AHA are insufficient to protect his interests.

GROUNDS OF OPPOSITION

52    The various bases of opposition were advanced before Mr Starkey (by his lawyer) filed written submissions in reply.

53    From the written submissions of the opposing parties, the Court discerns five principal bases of opposition.

54    First, it is submitted that the application for joinder constitutes an abuse of process insofar as it is founded upon the assertion of native title rights and interests in the claim areas. It is further submitted that the joinder applications, insofar as they are claimed to be founded on heritage interests, are in fact an attempt to introduce by another route the same claims by the Kokatha people that were summarily dismissed in Croft No 2. Relatedly, it is submitted that Mr Starkey’s assertion that Kokatha law, culture and stories extent southward to Port Augusta is untenable in light of what was said in Croft No 2.

55    Second, it is submitted that the interests of Mr Starkey personally are not sufficiently identified or proven.

56    Third, and relatedly, it is submitted that Mr Starkey’s evidence asserts communal rights and interests in circumstances where he has not validly made a joinder application in a representative capacity.

57    Fourth, it is submitted that to the extent that Mr Starkey personally has an “interest”, it has not been established that the interest may be affected by the determinations of native title sought in either proceeding. It is submitted that the interests asserted by Mr Starkey are adequately protected under heritage legislation including the AHA.

58    Fifth, it is submitted that it is not in the interests of justice to join Mr Starkey as a respondent in each proceeding, principally because of the delay in bringing the applications and the further delays and disruption that would ensue should he now be joined as a respondent in circumstances where there is a real prospect that the Barngarla and Nukunu Claims are both being assessed and negotiated with a view to proceeding to consent determinations. The Nukunu Claim, in particular, is well progressed toward that end.

THE ASSERTED INTEREST

Native title

59    Until Mr Starkey’s submissions in reply were filed, the nature of the rights and interests in the claim area (extracted at [40] above) together with the cultural matters deposed to by Mr Starkey might reasonably have been taken to assert that the Kokatha people have interests in the claim areas falling within the statutory definition of “native title rights and interests”. That interpretation of the materials is reinforced by Mr Starkey’s stated expectations as to the subject matter that might be tried should he be joined as a party in each proceeding and his stated communal concern about the preservation of Kokatha sites across the whole of the claim areas more generally.

60    In submissions in reply it was submitted that the opposing parties had mischaracterised Mr Starkey’s evidence as amounting to an attempt to assert native title. That is not a fair criticism of the opposing parties. Until the reply submissions were filed, the Court itself had understood Mr Starkey’s written materials to assert (at least) the existence of interests in the nature of native title rights and interests in the claim areas. That interpretation might have been generous, but it was informed by the circumstance that Mr Starkey was self-represented and so should have his written materials interpreted beneficially.

61    To the extent that the interlocutory applications were intended to introduce at trial any claim to the effect that the Kokatha people are native title holders in respect of the claim areas, the applications by Mr Starkey to be joined as a respondent would be liable to be struck out as an abuse of the Court’s processes. That is because the areas to which these two proceedings now relate together form the same area covered by Kokatha # 3. For the reasons given by White J in Croft No 2, Kokatha # 3 was summarily dismissed. The Kokatha people cannot re-litigate in either of these proceedings the same issues forming the subject matter of his Honour’s judgment. Any attempt to do so (whether by the device of a joinder application or otherwise) would attract the doctrine of res judicata or related doctrines and would be liable to be dismissed for that reason: Dale v Western Australia (2011) 191 FCR 521; McDonald v South Australia [2011] FCA 297.

62    Mr Starkey’s written submissions in reply emphatically deny any intention to assert native title rights and interests as the basis for Mr Starkey’s joinder.

63    However, the joinder applications must be assessed against the background in which Mr Starkey has articulated claims in a manner that has been productive of confusion. It is also to be considered against the activities Mr Starkey says all Kokatha people continue to enjoy, coupled with his perception that his joinder as an individual would necessitate a trial as to whether those activities may be continued by all Kokatha people. Notwithstanding his appointment of a lawyer, these aspects of the evidence and submissions have not been withdrawn. They stray significantly from the narrow focus of the submissions filed after Mr Starkey obtained legal representation. They give rise to concerns that Mr Starkey incorrectly perceives that his joinder may result in some form of relief that would be enforceable by all Kokatha people, notwithstanding that his application for joinder is not validly brought in a representative capacity. I will return to these considerations later in these reasons.

Interests other than native title rights and interests

64    Whilst Mr Starkey’s assertions in relation to his interest were broadly and in some respects ambiguously stated, the opposing parties did not seek to cross-examine him, nor have they adduced any contradictory material on critical facts.

65    On the material before me, I find that Mr Starkey was conceived and born in Port Augusta and that he has lived and worked in and around the relevant claim areas all of his life. I am also satisfied that Mr Starkey has the status of a Wati among the Kokatha people. He has established a prima facie case that his status as a Wati carries with it custodial responsibilities in sites of significance to the Kokatha people and responsibilities in respect of culturally sensitive information that is confidential to them. Mr Starkey asserts that his Wati status and his custodian/informant status was inherited from Kokatha elder Max Thomas in accordance with traditional Kokatha law and custom.

66    For the purposes of these applications, I am satisfied that Mr Starkey has that status and that he has an interest in the nature of custodial responsibilities for sites in the areas, being a personal interest derived both because of the place of his conception and birth and because of his status as a senior law man. Again for present purposes, I am satisfied that there are sites of cultural and heritage significance to the Kokatha people in the areas subject to the Barngarla Claim and the Nukunu Claim and that Mr Starkey has custodial responsibilities in relation to those sites by reason of his status in Kokatha culture. It should be emphasised that the relevant interest has been demonstrated at the threshold of a prima facie case. Subject to the conditions in s 84(5) being satisfied, it is an interest that is capable of founding Mr Starkey’s joinder as a respondent in his own name and right.

67    The facts as I have found them make it unnecessary to express any view as to whether Mr Starkey might have a sufficient prima facie interest by virtue only of his being a Kokatha man who was conceived and born on one or other of the claim areas.

68    The assertion of the particular interest I have identified does not constitute an indirect attempt to re-litigate the same questions determined in Croft No 2 or any other judgment to which I have referred. An interest in the preservation of sites or objects of cultural significance to a person may arise whether or not the person is a native title holder in respect of the place where the sites or objects are situated. As I have mentioned, the recognition of native title rights and interests depends upon an assessment of Aboriginal law and custom as it existed at sovereignty, with a particular emphasis on the continued occupation of the land and waters and continued observance of the laws and customs giving rise to rights (typically but not always arising by descent and succession) under Aboriginal traditional law in the land in question. Proof of the existence of present day custodial responsibilities for sites of cultural or heritage significance to an Aboriginal group does not necessarily depend upon proof of any state of affairs existing at or prior to the assertion of sovereignty, nor does it necessarily depend upon rights in land acquired by succession under traditional law. The state of affairs at sovereignty may be relevant, but it is not dispositive.

69    The circumstance that there may exist sites of significance to an Aboriginal group in an area in which another Aboriginal group are native title holders is not a novel concept, whether in legal or anthropological terms. Indeed, the agreement reached between the Nukunu people and the Barngarla people in the commendable resolution of the Port Augusta Overlap expressly recognises the cultural and heritage interests of both groups in respect of the same area. Clauses 1 to 4 of the Heads of Agreement record the parties’ agreement of a “dividing line” delineating what is now the common boundary of their retracted claims. Clause 5 provides that the parties will negotiate in good faith a “Heritage and Compensation Agreement” in respect of a significant portion of Port Augusta to the east of the dividing line which the parties acknowledge contain certain features that are agreed to be “important to Barngarla and Nukunu”. The clause contains an acknowledgement by each party that the other party has sites, objects and remains of significance within the same area. The parties agree to assist and support each other “to protect their heritage through measures which include joint notification and equal representation on heritage clearances” in the area.

70    That aspect of the agreement between the Barngarla people and the Nukunu people inform my view as to whether or not Mr Starkey’s application or joinder is a bona fide assertion of non-native title rights and interests. In my view, the interest in being joined as a respondent is genuinely asserted, notwithstanding that there is no contiguous boundary between the claim areas and the land subject to the Kokatha A Determination.

71    There appears to be some recognition in the academic literature of the potential for tension between two species of interests, each arising under Aboriginal law and custom, each of which is capable of recognition by the common law of Australia and neither of which is dependent upon the enactment of a statute for its existence: see, for example McGrath, P (ed) 2016, The right to protect sites: Indigenous heritage management in the era of native title, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, particularly the chapter “Aboriginal heritage in South Australia: protection, knowledge, power” (R Lucas and D Fergie). In relation to the land and waters forming the subject of the present proceedings, the learned authors of the Chapter “Aboriginal heritage in South Australia: protection, knowledge, power” observe at 215 – 217:

Significant disparities of principle and system exist in a line the divides South Australia from north to south. These differences in land tenure, concomitant social organisation and types of responsibility for sites manifest at the interface of Western Desert and Lakes groups areas. There are areas of South Australia where Dreaming tracks extend beyond the desert, beyond native title claim boundaries and across other claim groups’ areas. In the eastern Western Desert specifically (among Antikirinja and Kokatha people, for example), a person’s primary affiliation to land was not to a bounded territory so much as to a ‘line’ of Tjukurrpa sites, some of which might be in other people’s country.

Difficulties arise when these different systems of esoteric knowledge and tenurial principles are overlaid. Desert principles allow for an assertion of interest anywhere along a Dreaming track with which one has primary associations (by birth or ritual induction). When that track traverses an area claimed by a group that does not traditionally recognise or observe such a principle of extension of ownership tied to Dreaming knowledge then tensions arise and negotiations get complex. To whom do developers go for authoritative advice on heritage matters in such an area? A straightforward answer may be both groups, but this may not satisfy either and may even risk escalating tensions over areas that are now enclosed by definitive claim boundaries.

An assertion of heritage rights and responsibilities in such a context quickly becomes embroiled in a more complex politics of community control and representation. Although put abstractly, the authors of this chapter have observed (and sometimes participated in) such negotiations around the head of Spencer’s Gulf and south of the Gawler Ranges, but similar tensions can arise anywhere on the interstices between Lakes and Desert cultures in South Australia — as between Antakirinja Matu–Yankunytjatjara and Arabunna at the Breakaways that also entailed the mingling and crossing of different Dreaming tracks, for example. In becoming entwined, native title has made it more difficult to negotiate what were once more fluid boundaries (where one group’s site is encompassed by another’s native title claim, for example).

…

In particular, there is no straightforward reconciliation between native title holders who quite rightly claim that they have responsibility for the entirety of a determined area and its heritage and those individuals who might be identified as traditional owners for a specific site. The disparity between collectivity and individualism between the AHA (SA) and the NTA has significant implications for their continuing operation. In particular, it has been a source of conflict within Aboriginal communities and there is no current way to curb this potential.

72    Putting aside the “entanglement” between the NT Act and State heritage laws, controversy may exist under different systems of Aboriginal traditional law as to the extent to which the non-native title interests (of the kind now recognised under the AHA) may co-exist with the native title rights and interests (of the kind recognised by the Australian common law in Mabo v Queensland (No 2) (1992) 175 CLR 1).

73    The heritage reports relied upon by Mr Starkey, particularly the Gara survey, provide an adequate evidentiary basis (again, assessed at a threshold level) for Mr Starkey’s claim that there are sites of cultural and historical significance to the Kokatha people in the claim areas for which he has responsibility. The report predates the judgment of the High Court in Mabo and the enactment of the NT Act and so cannot be understood as being concerned with the identification of persons holding native title in respect of any particular place. The report does not purport to identify native title rights and interests as now defined by statute. That is not its purpose. Its concern is the identification of sites of cultural and historical significance to Aboriginal people in the areas to which it relates. The report proceeds from the premise that there may be more than one Aboriginal group having interests in the preservation of sites, objects or information of cultural or historical significance in relation to the same area.

74    At issue in Croft No 2 was whether the Kokatha people had reasonable prospects of success in establishing that they had native title rights and interests in the relevant land or waters possessed under traditional laws and customs, being rights and interests that existed at sovereignty and that have survived its acquisition: Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [47] (Gleeson CJ, Gummow and Hayne JJ), at [134] (McHugh J).

75    On that enquiry, the anthropological and topographical considerations referred to by White J in Croft No 2 were significant because of the inherent unlikelihood that the land and waters occupied by the Kokatha people at sovereignty would be shaped in such a way, so as to sit on either side of a significant land mass occupied by another Aboriginal group at that time. In summarily dismissing Kokatha # 3, White J did not consider the existence of non-native title interests of any Kokatha person, whether before or after sovereignty.

76    Whatever may have been the circumstance at sovereignty, for present purposes there is a sufficient evidentiary basis to support a prima facie case that (at least) post sovereignty there was significant migration of Aboriginal people southward to Port Augusta, such that by the first half of the twentieth century there were significant numbers of Kokatha people living in the area.

77    For the purpose of asking whether Mr Starkey is a person whose interests may be affected by the outcome of these proceedings, the relevant interest is his interest in discharging his responsibilities as a Wati in relation to the sites. His claim is that he has, by reason of that status, a right coupled with an obligation to access the sites. He does not assert that the interest is dependent upon or derives from a relationship of kinship with either claim group. The asserted interest, on Mr Starkey’s case, is not conditioned upon the grant of permission by the Barngarla or Nukunu peoples. The practical content of Mr Starkey’s asserted custodial responsibilities is not furnished with detail. However, it is plain that the “interest” is one requiring (at least) access to the sites by Mr Starkey personally. In my view, that is a sufficient asserted “interest” within the meaning of s 84(5) giving rise to a real issue to be tried.

78    Whether or not that interest would be affected in a demonstrable way must be considered separately in relation to each proceeding. It is convenient to turn first to the Nukunu Claim.

THE NUKUNU CLAIM

79    For the Nukunu people it was submitted that the Nukunu Claim will likely proceed to a consent determination describing their native title rights and interests in the same terms as they were described in the Nukunu Determination relating to the area unaffected by the Port Augusta Overlap. That determination contained a paragraph to the effect that the native title rights and interests there recognised were “subject to and exercisable in accordance with: (a) the traditional laws and customs of the Native Title Holders; and (b) the valid laws of the State and Commonwealth, including the common law”: at [17]. The nature and extent of other interests in the determination area included “rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth”: at [18(e)]. The relationship between the native title rights and interests described at [17] and the other rights described in [18] was described (at [19]) as follows:

(a)    to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests;

(b)    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to any application of the NTA or the Native Title (South Australia) Act 1994 (SA), do not extinguish them.

80    As can be seen, the Nukunu Determination did not recognise any right that was exercisable to the exclusion of all others. It is submitted that a determination in the same terms in relation to the present claim area would not demonstrably affect Mr Starkey’s asserted interest. To similar effect, the State of South Australia joins in the submission that any consent determination would, in accordance with the State’s usual practice, incorporate a statement to the effect that the determined native title rights and interests are subject to and exercisable in accordance with the laws of the State and Commonwealth, including the common law.

81    In my view, the application for joinder must be assessed in accordance with the amended application that has been filed on behalf of the Nukunu people, not upon the outcome that the current parties to the proceeding may or may not expect to achieve on a negotiated outcome.

82    Schedule E to the amended application describes the native title rights and interests that are claimed in the following terms:

The native title rights and interests claimed are the common law rights to possession, occupation, use and enjoyment of the Nukunu to the Claim are to the exclusion of all others, in particular the right to:

•    Access and reside on Nukunu land and waters;

•    Enjoy the resources of the Nukunu land and waters;

•    Make decisions about the use and enjoyment of the Nukunu land and waters;

•    Control the access of others to and conduct on the Nukunu land and waters;

•    Control the use and enjoyment of others of the resources of the Nukunu land and waters;

•    Maintain and protect sites and areas of importance within Nukunu land and waters according to traditional laws and customs;

•    …

•    Carry out and maintain mortuary practices according to Nukunu traditional law and custom.

83    By way of explanatory note, the resources of the Nukunu land and waters include but are not limited to birds, animals, plants, fish, marine animals, shellfish, timber, ochre, stone, minerals and subsurface minerals.

84    Schedule G and Attachment G to the amended application details the activities in relation to the land or waters currently being carried out by the claim group, including “Giving, refusing permission or placing conditions on access to Nukunu land and waters” and “Undertaking work area clearances”.

85    Schedule D to the amended application specifies the searches undertaken by the Nukunu people to determine the existence of any non-native title rights and interests in relation to the land and waters covered by the application. The searches specified there do not include any search to identify persons who may have caused sites or objects to be registered in accordance with the AHA or like legislation.

86    Notwithstanding the terms of the Nukunu Determination in Turner, the Nukunu people have maintained a claim for exclusive possession in respect of that part of the claim area now forming the subject of these proceedings. They are of course entitled to assert that aspect of their claim, to have it tested (including by way of trial) or to concede it, as was apparently done in relation to the remainder of the claim area. But until that occurs, it is necessary to consider what effect, if any, a determination expressed in exclusory terms may have on Mr Starkey’s asserted interest.

87    Mr Starkey’s interest includes an interest in accessing the sites to discharge custodial responsibilities in respect of them. The asserted right is not qualified by any requirement to obtain the consent of the Nukunu people. At the very least, a determination in the terms presently sought by the Nukunu people may have the effect of excluding Mr Starkey from accessing the site without first obtaining permission from the native title holders.

88    Moreover, Mr Starkey’s interest in protecting the sites is one that arises from his status as a Wati in Kokatha culture. It is not to be supposed that he may discharge that cultural responsibility by accepting a sincere assurance from the Nukunu people that they will assume responsibility for the protection of the sites. The written submissions of the Nukunu people contain an acknowledgement that the sites referred to by Mr Starkey “are of significance to Aboriginal people”. There is also an acknowledgement that “the interests of a law man who has been entrusted with responsibility for sites, whilst not amounting to a native title right, may, in some instances, constitute a relevant heritage interest for the purpose of” s 84(5) of the NT Act. Their primary contention was that Mr Starkey’s evidence was insufficient to establish a prima facie case that he has such an interest. I have rejected that part of the Nukunu submissions.

89    The circumstances I have described thus far are sufficient to demonstrate that Mr Starkey’s interests (as I have identified them) may be affected in a demonstrative way by the determination sought by the Nukunu people, for the purposes of s 84(5) of the Act. In my view it matters not that the AHA provides a legislative framework for the protection of sites and objects of significance to Aboriginal people (as to which see below). The asserted interest of Mr Starkey is an interest said to arise under Aboriginal law and custom. The AHA may provide a legal framework for the protection of the sites, but it does not equate to Mr Starkey’s interest in personally accessing the sites for the sharing or preservation of knowledge in relation to them. Aboriginal persons in Australia have advanced their interests in the preservation of sites of cultural, archaeological and historical significance to them long before the enactment of the AHA and its predecessor, the Aboriginal and Historic Relics Preservation Act 1965 (SA).

90    Mr Starkey further submits that his interests may be affected by a determination of native title on the Nukunu Claim that is expressed in non-exclusive terms.

91    My conclusion in relation to that issue in respect of the Nukunu Claim is the same as that explained below in respect of the Barngarla claim.

THE BARNGARLA CLAIM

92    The Barngarla people do not assert native title rights and interests to the exclusion of other interests. Accordingly, a determination in the terms sought would not prevent Mr Starkey from accessing the sites to perform any spiritual or other responsibilities in respect of them.

93    The State and the Barngarla people submitted that the AHA operates to prohibit any person from committing an act that would degrade or desecrate any site or object to which it applies. That protection, they submitted, is afforded by s 23 of the AHA, which provides:

23 – Damage etc to sites, objects or remains

A person must not, without the authority of the Minister—

(a)    damage, disturb or interfere with any Aboriginal site; or

(b)    damage any Aboriginal object; or

(c)    where any Aboriginal object or remains are found—

(i)    disturb or interfere with the object or remains; or

(ii)    remove the object or remains.

Maximum penalty:

(a)    in the case of a body corporate—$50 000;

(b)    in any other case—$10 000 or imprisonment for 6 months.

94    In granting authority, the Minister must consult with persons falling within the broad definition of a “traditional owner”, which would include a person in Mr Starkey’s position (if his status as a traditional owner is established), whether nor not Mr Starkey was also a native title holder.

95    In light of s 23 and other provisions of the AHA, it is submitted that there is nothing in the determination that is sought by the Barngarla people that would affect Mr Starkey’s asserted interests.

96    As I have mentioned, when articulating Mr Starkey’s asserted interests it is important not to confuse their source. The asserted custodial responsibility for the sites (and the asserted right of access connected with it) is not a responsibility created by the law of a State or the Commonwealth, nor is it a creature of the common law. Rather it is a non-native title interest said by Mr Starkey to arise under Aboriginal traditional law and custom. The AHA provides some measure of protection against the destruction of sites of asserted significance to him, but it is not absolute. Whilst it is true that the AHA confers procedural rights (such as a right to be consulted), that statutory right is in respect of a pre-existing interest having a different source. History has shown that the existence of laws providing for the protection of places and things of significance to Aboriginal people has not guaranteed their protection. In the practical application of the statute, the degree of protection afforded depends upon the administrative decision of a (usually) non-Indigenous Minister entitled to balance countervailing considerations, including the interests of non-Indigenous Australians.

97    Mr Starkey’s assertion that there is “antagonism” between the Kokatha people and other Aboriginal groups may be accepted if his intended meaning is that Aboriginal groups disagree about their rights and interests arising under their respective (and different) laws and traditions over the same subject matter. Viewed in that way, the controversy is not to be oversimplified as one concerning “territorial boundaries” and resolved according to who does and who does not hold native title. Rather, it is a controversy arising out of the potential for conflict between Aboriginal laws and customs of different groups as to what may be done at a place (and by whom) and what may be said about a place (and by whom). In my view, these are matters that may legitimately be tried in order to reach a determination that satisfies the requirements of s 225(c) and (d). In light of what was said by the High Court in Manado, the word “privilege” as it appears in the definition of the phrase “interest in relation to land or waters” is arguably wide enough to encompass a right or expectation of unconditional access to a site for the purposes of exercising responsibilities under Aboriginal law and custom.

98    In written submissions Mr Starkey puts forward the following “analogy” to demonstrate that his interests may be affected by a determination on the Barngarla claim expressed in non-exclusory terms:

A spiritual leader, who has been tending and protecting sacred objects on his sacred site uninterrupted for many years, attends the site to fulfil his ceremonial duties. Upon arrival he sights, for the first time, a member of a different group with different spiritual affiliations, preparing the site for recreation [which] prevents the spiritual leader from fulfilling his ceremonial obligations.

99    Considered in the abstract, this example tends toward the conclusion that the spiritual leader’s interests may be affected by the activities of the other group. The example suggests of the possibility of a collision of interests arising from the assertion of non-exclusive native title rights on the one hand and the assertion of non-native title rights on the other in relation to the same site.

100    Mr Starkey submits that a clause to the effect that the native title rights and interest are to be exercised in accordance with the laws of the State and the Commonwealth and the common law would not afford adequate protection from interference of the kind described. He points in particular to s 37 of the AHA, which provides:

37 – Preservation of right to act according to tradition

Nothing in this Act prevents Aboriginal people from doing anything in relation to Aboriginal sites, objects or remains in accordance with Aboriginal tradition.

101    It is submitted that this provision might enable acts to be done in the exercise of native title rights determined under the NT Act that would not be captured by the offence created by s 23. I express no concluded view about that construction of the AHA. It is sufficient to say that it is an interpretation that is at least arguable.

102    However, the evidence upon which Mr Starkey relies is insufficient to demonstrate that an impingement on his interests of the kind described in the example is within his actual contemplation. His affidavits give limited detail as to the practical content of his asserted responsibilities. There is no evidence to support a finding that access to the site has temporal limitations such that the responsibilities must be carried out at a particular time. Nor is there any suggestion that discharge of the responsibilities requires that Mr Starkey have access to the sites at fixed times to the exclusion of any other person, including a native title holder. Whilst I am prepared to accept that the application of the law to the abstract example given is arguable, I do not consider the factual premise of the example to find sufficient support in the evidence, even at the level of a prima facie case.

103    As a consequence, I am not satisfied that Mr Starkey’s asserted interest is one that may be affected by the determination sought on the Barngarla Claim.

THE INTERESTS OF JUSTICE

104    It remains to consider whether it is in the interests of justice that Mr Starkey be joined as a respondent.

105    The question does not arise in relation to the Barngarla Claim, as another essential condition for Mr Starkey’s joinder is not present in that action, as explained above.

106    Three issues arise for consideration in respect of the Nukunu Claim.

Delay

107    The State and the Nukunu people submit that the joinder of Mr Starkey at this late stage would frustrate the parties’ efforts to reach a consented position. They point to the circumstances that the proceedings were commenced in 1998, that they are well progressed and are considered likely to proceed to a consent determination. They assert that the ordinary course of negotiation may be frustrated by the participation of Mr Starkey whose consent to the determination would be required should he be joined as a party.

108    In considering the reason for the delay it is relevant to consider that persons who identified as “traditional owners” under the AHA were not given written notice of the Nukunu Claim by the Registrar under s 66(3)(vii) of the NT Act. That may be explained in part by the absence of any searches disclosed on the face of the application alerting the Registrar to the existence of other Aboriginal groups asserting cultural or heritage interests in the proposed determination area.

109    It is reasonable to infer that the persons constituting the Nukunu applicant have known of the asserted interests of the Kokatha people in the area for many years (even if they dispute them). It is also reasonable to infer that Mr Starkey was aware of the fact that the proceedings had been commenced by the Nukunu people either at or shortly after the commencement of this action more than two decades ago.

110    Unsurprisingly, there was no application by the Registrar to the Court under s 66(7) for an order as to whether notice should be given to Mr Starkey. In my view, an application under s 66(7) is one mechanism by which the Court may be informed of the potential for an application to be made under s 84(5) and so facilitate the joinder of an interested person at a very early stage (with or without a contested hearing on the joinder). At the very least, the bona fide assertion of non-native title interests by an Aboriginal person may give rise to significant issues as to the nature and extent of the native title rights and interests of the claim group to be determined in the proceedings.

111    In summary, I do not consider Mr Starkey to be wholly responsible for the circumstance that the dispute now before the Court has arisen at such a late stage. Any delay on Mr Starkey’s part must be considered in its proper context.

112    As has been mentioned, representatives of the Kokatha people expressed an interest in participating in negotiations for an ILUA in 2015. I infer that the failure to assert heritage rights and interests from that time is explained by the decision of the Kokatha people (including Mr Starkey) to commence the proceedings in Kokatha #3, which proceedings could not succeed.

113    Whilst it is unsatisfactory that separate consideration was not given to the assertion of non-native title rights and interests at an earlier time, I accept that it has not been the practice of native title claimants to assert cultural and heritage interests in the alternative to their principal claim to be native title holders.

114    Mr Starkey states that he decided to apply to be joined as a respondent once he saw the retracted boundaries in the amended Barngarla and Nukunu claims. It is unclear to the Court how the new alignment of boundaries could have influenced the timing of his decision. In my view, Mr Starkey ought to have proceeded promptly to assert non-native title interests following the judgment of White J in Croft No 2. Whilst that delay is unsatisfactory, it is not lengthy when considered against the history of the proceedings as a whole. In large part, the obstacle for the Nukunu people in proceeding to a consent determination in a more timely way was the long-standing overlap of their claim with the Barngarla Claim. It is only recently that that dispute has been resolved.

The form of the evidence

115    As I have observed, the evidence filed by Mr Starkey at a time when he was self-represented revealed a lack of precision in the articulation of his interests and an inability to clearly delineate between those interests capable of being held by Mr Starkey personally and those said to be enjoyed communally by the Kokatha people. The evidence concerning the activities of the Kokatha people extracted at [40] of these reasons is an example.

116    These features of the evidence give rise to a real concern that Mr Starkey may seek to use the occasion of his joinder to disrupt or prolong the proceedings for purposes that are not legitimate for the advancement and protection of the more narrowly confined interest that may justify his joinder. Those concerns have been absolved in large part by Mr Starkey’s engagement of a lawyer. To the extent that there remains a risk that Mr Starkey may seek to agitate issues unconnected with the heritage interests I have identified, or that are untenable by reason of the judgment in Croft No 2, the Court has adequate procedures to supervise his conduct as a party and to narrow the issues in dispute. If Mr Starkey demonstrates that he is unable or unwilling to comply with the orders of the Court for the orderly progression of the matter to trial or to a determination by consent, the Court’s powers may be exercised to remove him as a party, if that be necessary to avoid an abuse of its processes.

The importance of the subject matter

117    I am satisfied that the interests asserted by Mr Starkey are of considerable personal and spiritual importance to him in his asserted status as a Wati. In addition, the preservation of sites or objects of Aboriginal cultural, historical or archaeological significance is (or at least should be) a matter of concern to all Australians.

118    Section 225(c) and (d) of the NT Act serve the important purpose of ensuring that any person may obtain information from the one document concerning the interplay between the native title rights and interests and other interests in relation to the same land or waters. As French J said in Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3]:

…  A determination of native title not only binds the parties to these proceedings, it is good against the whole world. So the Court must be satisfied that the orders sought are supportable and are in accordance with the law.

119    As argument on this application has shown, it is not to be assumed that a determination of native title in exclusive terms has no effect at all on the practical operation of the AHA. A determination that clearly articulates the relationship between rights and interests of the claim group and Mr Starkey may serve to avoid litigation under or concerning the AHA or at general law.

120    I have not overlooked that the controversy arising out of the limited material before me is one that may involve some legal and factual complexity. However, given the importance of the subject matter, the potential for complexity is a neutral consideration in determining where the interests of justice might lie.

121    In all of the circumstances I am satisfied that it is in the interests of justice that Mr Starkey be joined as a party in proceedings SAD 6012 of 1998 for the purpose of protecting his interest in accessing sites in the claim area in respect of which he claims to have custodial responsibilities in his capacity as a senior law man under the traditional laws and customs of the Kokatha people. That purpose persists for so long as the amended originating application contains an application for a determination of native tile expressed in exclusive terms.

122    The factual findings I have made for the purposes of the interlocutory applications are not be understood as expressing any concluded view on disputed facts. It is for Mr Starkey to establish at trial (if there is to be one) the nature, source and content of his interest and to demonstrate how that interest interrelates with the interests asserted by the claim group.

ORDERS

123    Orders will be made dismissing the interlocutory application filed in SAD 6011 of 1998 (the Barngarla Claim) on 24 December 2019.

124    Mr Starkey will be joined as a respondent in SAD 6012 of 1998 for the purpose identified at [121] above. The parties will be heard as to the procedural orders that should be made to ensure that Mr Starkey’s asserted interest is clearly articulated in a form that permits the issues in dispute to be defined.

Associate:

Dated:    25 June 2020

SCHEDULE OF PARTIES A

SCHEDULE OF PARTIES B