FEDERAL COURT OF AUSTRALIA

Harkin on behalf of the Nanatadjarra People v State of Western Australia [2020] FCA 1015

ORDERS

THE COURT ORDERS THAT:

1.    The Nangaanya-ku applicant in proceeding WAD460/2018 be joined as a respondent in WAD348/2017.

2.    The interlocutory application filed by Mr Harrington Smith on 9 March 2020 be dismissed.

3.    There be no order as to costs in respect of either of the interlocutory applications filed on 9 December 2019 and 9 March 2020 respectively.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1    The Court has before it two interlocutory applications for joinder as respondent parties to the s 61 native title application brought by Ms Bidarn Maisie Harkin and others on behalf of the Nanatadjarra People, which has the file number WAD348/2017.

2    The first interlocutory application, which was filed on 9 December 2019, seeks to have the “Nangaanya-ku Applicant” (who is the applicant in an application under s 61 of the Native Title Act 1993 (Cth) (NT Act) and which has the file number WAD460/2018) joined as a respondent party to the Nanatadjarra People application.

3    The second interlocutory application, which was filed on 9 March 2020 seeks an order that Mr Ron Harrington Smith be joined as a respondent to the Nanatadjarra People application.

4    The relevant parties were all agreed that the interlocutory applications should be heard and determined on the papers and without an oral hearing.

5    For the reasons which follow, the first interlocutory application will be allowed but the second interlocutory application will be dismissed.

Relevant legislative provisions and legal principles summarised

6    Section 84(5) of the NT Act provides as follows:

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.

7    Rule 34.105(1) and (2) of the Federal Court Rules 2011 (Cth) provide:

34.105    Joinder of parties to main application after relevant period

(1)    If a person wants to be a party to a main application and the relevant period (within the meaning of rule 34.104) has ended, the person must apply by filing an interlocutory application, in accordance with Form 105.

   (2)    The application must be accompanied by an affidavit stating:

(a)    how the person’s interests may be affected by a determination in the proceeding; and

(b)    why it is in the interests of justice for the Court to grant the application.

8    It is common ground that the following three elements must be considered when making a decision under s 84(5):

(a)    whether the person seeking to be joined has an interest;

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

(c)    whether, in any event, in the exercise of its discretion the Court should join the person as a party.

9    The relevant legal principles are relatively clear. They are stated in cases such as Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [26] per Mansfield J; Barunga v State of Western Australia (No 2) [2011] FCA 755 at [162] to [168] per Gilmour J; Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [8] ff per Reeves J; A.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 2) [2013] FCA 1000 at [66] per McKerracher J, Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310 at [14] per Greenwood J; Pegler on behalf of the Widi People of the Nebo Estate #1 v State of Queensland [2014] FCA 932 at [11]ff per Collier J; Sumner v State of South Australia [2014] FCA 534 at [10]ff per Mansfield J and Worimi Local Aboriginal Council v Minister for Lands for the State of New South Wales [2007] FCA 1357; 164 FCR 181 at [37] per Bennett J (and other cases referred to therein).

10    The principles may relevantly be summarised as follows.

(a)    There must be at least a prima facie interest on the part of a joinder applicant which warrants a favourable exercise of the discretion under s 84(5).

(b)    The notion of “interests” for the purposes of s 84(5) is a broad concept, not confined to the statutory understanding of the term “interest” in s 253 of the NT Act. The interests need not be proprietary, legal or equitable in nature; they must arise above an interest that an ordinary member of the public might hold; they must be genuine; they must reflect an effect upon the joinder applicant’s interests beyond a mere emotional, conscientious or intellectual interest and they must not lack substance.

(c)    When viewed in its statutory context, the expression prima facie is taken to mean “at first sight without further investigation”.

(d)    The interest relied upon by a person seeking to be joined as a respondent must be capable of clear definition, be genuine and affected in a “demonstrable way”. An interest in a much wider area than the area of the relevant claim may be insufficient to establish a relevant interest in the claim area itself.

(e)    A person claiming to hold native title rights and interest over an area of land and waters affected by a native title determination application would ordinarily have sufficient an interest to justify being joined as a respondent under s 84(5) of the NT Act.

(f)    Significantly, in determining whether or not to grant an application for joinder, the Court does not embark on resolving contested questions of fact or seek to determine where the merits lie. Instead, the question is whether having regard to the assertions of fact contained in the application for joinder, the Court can be satisfied that the applicant’s interests may be affected in a demonstrable way by a determination of native title. In other words, there must be a factual foundation which demonstrates that a relevant interest is affected.

(g)    The discretion under s 84(5) is broad and the question whether it should be exercised in favour of a person seeking joinder depends upon the circumstances of each case, including the history of the matter.

(h)    The discretion to join a party must properly be exercised on a case-by-case basis. Having regard to the terms of s 251B of the NT Act, generally speaking the Court will rarely permit joinder of dissentient members of a native title claim group or permit joinder where, following relevant procedures, the claim group has determined that there is not a sufficient basis for including the joinder applicant in the claim group. Merely because a joinder applicant asserts that he or she has been recognised as a member of a People is a different thing from being a member of the native title claim group, the composition of which must be persons who, according to their traditional laws and customs, hold the communal group rights and interests comprises in a claim.

(i)    The following particular factors are relevant to the exercise of the Court’s discretion under s 84(5):

(i)    it must be recognised that proceedings under s 61 of the NT Act for a determination of native title are proceeding in rem and bind non-parties. It is fundamental that an order which directly affects a third person’s rights or liabilities should not be made unless the person is joined as a party;

(ii)    consideration of the rights and interests of the party joined would lead to a more accurate definition of the native title rights and interests claims, including by limiting the scope of the rights and interests of an applicant;

(iii)    the party joined would also be able to protect the native title rights and interests they claim to hold from erosion, dilution or discount by the Court’s determination of a s 61 application;

(iv)    whether the interest asserted can be protected by some other mechanism, such as where the interests could be protected by some other adequate instrument;

(v)    where the applicant for a determination would be prejudiced if the party applicant is joined; and

(vi)    the history of the proceedings, including whether there has been unexplained delay by the party seeking to be joined and whether there are well-advanced Court programming orders which would need to be amended to accommodate the proposed joined party, including whether such joinder would jeopardise an imminent trial.

11    It is important to note the following observations of Reeves J in Isaacs at [18] and [19] with which I respectfully agree:

18.    This issue arises because of various decisions of this Court that establish that where a person is seeking to be joined as a respondent to native title proceedings on the basis that he or she claims to hold native title rights and interests in an area of land or waters that may be affected by a determination in those proceedings, that person may only do so if he or she wishes to pursue a personal claim or interest in defensively asserting those native title rights and interests or, in other words, to protect them from erosion, dilution or discount: see Munn v State of Queensland [2002] FCA 486 (“Munn”) at [8], Davis-Hurst (on behalf of the traditional owners of Saltwater) v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315; [2003] FCA 541 at [27] per Branson J, Kokatha Native Title Claim v South Australia (2005) 143 FCR 544; [2005] FCA 836 at [24] per Mansfield J, Worimi Local Aboriginal Land Council v Minister for Lands for New South Wales (2007) 164 FCR 181; [2007] FCA 1357 at [16]–[17] per Bennett J and Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 (“Bonner”) at [18].

19.    However, if that person wishes to obtain a positive determination of native title on behalf of his or her people, clan or group, then the Act prescribes that the only method by which that can be achieved is an application under s 13(1), complying with the requirements of s 61 et seq of the Act. Among other things, this means that a person cannot be joined as a respondent party if his or her purpose in being so joined is to act as a representative to assert native title rights on behalf of other people: Munn at [9]; Moses v Western Australia (2007) 160 FCR 148; [2007] FCAFC 78 at [18]; The Commonwealth of Australia v Clifton (2007) 164 FCR 355; [2007] FCAFC 190 at [48], [52], [53], [57], [58] and [61] and Bonner at [19].

12    With these general principles in mind, it is appropriate to address the two interlocutory applications separately.

(a) The application for joinder by the Nangaanya-ku People

13    The applicant for joinder relied upon an affidavit filed on 9 December 2019 by its instructing solicitor Mr Malcolm O’Dell. He deposed that the Nangaanya-ku People application overlapped substantially with the Nanatadjarra People application and that both applications were in relation to a determination of native title under s 61 of the NT Act. Mr O’Dell further deposed that each claim affected the progress of the other claim because it was necessary for the Court to identify, for the purposes of s 225 of the NT Act, who are the persons who hold common or group rights comprising the native title area. These matters are confirmed by relevant parts of the respective Statements of Facts and Contentions which have been filed by the applicant in WAD348/2017 and WAD460/2018.

14    The Nanatadjarra People applicant opposed the joinder application, relying upon an affidavit filed on 1 May 2020 by Ms Bidarn Maisie Harkin. In essence, the joinder application was opposed on the basis that the Nangaanya-ku People Claim was not compliant with s 61(1) of the NT Act because it had not been duly authorised by all holders of the Nangaanya-ku People Claim. It was submitted that there were two authorisation meetings held on 13 February 2016 and 21 May 2016 by the Nanatadjarra People following advertisements and notification and that anyone who had an interest in the claim could have expressed their interest at that time. Only one person, Mr Ashley Blake, approached Ms Harkin to be included in the Nanatadjarra People Claim. It was further submitted that all interested persons had the opportunity to become respondents to the Nanatadjarra People Claim in the notification time frame afforded to them.

15    It was submitted that the Nanatadjarra People applicant believed that the Nangaanya-ku People applicants do not hold substantive connections to land and waters in part of the overlapping claims and that they are not recognised as Nanatadjarra People but rather comprise other tribes or language groups.

16    In their submissions in reply, the Nangaanya-ku People submitted that the matters raised in opposition to the joinder application concerning authorisation, evidence and connection are all substantive matters which can only be dealt with if they are joined as a respondent in the proceeding WAD348/2017. I see considerable force in that submission and do not accept that any of the other matters raised by the Nanatadjarra People applicant should prevent the making of an order joining the Nangaanya-ku People applicant as a respondent in WAD348/2017.

17    I find that the Nangaanya-ku People applicant has a prima facie interest in the Nanatadjarra People application because of the overlap in the two s 61 native title determination applications.

18    I also find that, based upon Mr O’Dell’s affidavit, because of that overlap, the Nangaanya-ku People applicant has an interest which may be directly affected by the conduct and outcome of the Nanatadjarra People application.

19    I am not satisfied that there are any relevant considerations which warrant the Court’s discretion being exercised unfavourably to the joinder applicant. There has not been unreasonable delay in the filing of the joinder application, nor any prejudice to the Nanatadjarra People applicant. Although the Nangaanya-ku People applicant acknowledged that a reasonable time had passed since it filed its s 61 application on 9 October 2018, it pointed out that the notification period in the Nanatadjarra People Claim ended on 12 March 2018, with the consequence that it was not possible for it to become a respondent party, as of right, within the notification period for the Nanatadjarra People application.

20    I also accept that the moderate delay which has occurred is not such as to cause prejudice to the Nanatadjarra People applicant because:

(a)    the Court’s programming orders in relation to that claim are not substantially advanced; and

(b)    there is no determination which is imminent in those proceedings.

21    The Nangaanya-ku People applicant should be joined as a respondent to the Nanatadjarra People application in order to protect against the potential erosion of the native title rights which are asserted by the Nangaanya-ku People in their own s 61 application, where there is an overlap in the relevant area with the rival application.

(b) The application for joinder by Mr Ron Harrington Smith

22    The area the subject of the Nanatadjarra People application is Attachment C to the s 61 application itself.

23    In support of his application for joinder, Mr Harrington Smith initially relied on his affidavit in chief filed on 9 March 2020 and his affidavit in reply filed on 11 May 2020. In both those affidavits, Mr Harrington Smith gave evidence of his antecedents. He said that he was claiming native title rights in respect of the area the subject of the Nanatadjarra People application through his mother and his two adoptive Indigenous fathers. He said that all three of those people either were, or were identified as, Nanatadjarra People. Mr Harrington Smith also gave evidence of the activities he said he had personally carried out in or around the claimed area, both before and after he was taken to the Mount Margaret Mission. This evidence was intended to establish connection. Those activities include learning the traditional law, customs, stories and discussions, camping and hunting and searching for food, caring for country and cleaning soaks and springs. Mr Harrington Smith deposed that he could speak the Ngaanyatjarra language and the Wongatha language, as also did his parents. He did not claim to speak the Nanatadjarra language.

24    Mr Harrington Smith’s application for joinder was opposed by the Nanatadjarra People applicant who, on 27 April 2020, filed both an affidavit by Ms Harkin and an outline of submissions

Ms Harkin’s evidence in response

25    Ms Harkin said that she relied on evidence given by Mr Harrington Smith in Harrington Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 per Lindgren J (it might be noted that the proceedings relating to the Wongatha People Claim gave rise to 12 separate judgments in this Court). Mr Harrington Smith was one of 12 individuals who formed the applicant in the Wongatha People Claim. It covered an area of approximately 160,000 square kilometres of land in the Goldfields region of Western Australia, the southern boundary being some 85 kilometres north of Kalgoorlie. Ms Harkin annexed extracts from Mr Harrington Smith’s evidence in those proceedings, including his oral evidence. Mr Harrington Smith’s evidence (together with many other witnesses in those proceedings) was summarised by his Honour in an annexure to his reasons for judgment. Those extracts and Ms Harkin’s statements in relation to them in her affidavit may be summarised as follows:

(a)    Mr Harrington Smith asserted in that proceeding that his mother was born at Kiritjirri and came from the area between Jamieson and Blackstone, as did his grandmother. Ms Harkin also suggested that the extract indicated that Mr Harrington Smith was biologically descended from the area east of Warburton and not from within the Nanatadjarra Claim area.

(b)    Mr Harrington Smith asserted that his father came from Baker Lake (Yapupara), Ms Harkin stated that Mr Harrington Smith’s father is not a Nanatadjarra person or a person descended from the Nanatadjarra People; and

(c)    Mr Harrington Smith asserted that his father was a Pitjantjatjara man. Ms Harkin stated that his father was not a Nanatadjarra person or a person descended therefrom.

26    Ms Harkin also deposed that while Mr Harrington Smith’s evidence relating to places and events may be true, those places and events were not within the Nanatadjarra Claim area.

Ms Harkin’s submissions summarised

27    The submissions opposing Mr Harrington Smith’s joinder may be summarised as follows. First, Mr Harrington Smith claimed that his mother was born at Kiritjirri but he gave evidence in the Wongatha People Claim proceeding that Kiritjirri is within the Ngaanyatjarra lands, which is outside the Nanatadjarra Claim area.

28    Secondly, Mr Harrington Smith’s evidence that he is a direct descendant of a man and woman who spoke the Ngadadjara dialect of Pitjantjatjara indicates that those antecedents were connected with areas and people different from the Nanatadjarra Claim area.

29    Thirdly, Mr Harrington Smith gave evidence in the Wongatha People Claim proceeding that he is from Lake Baker, which is in the Ngaanyatjarra lands and outside the Nanatadjarra Claim area.

30    Fourthly, as to [11] of Mr Harrington Smith’s affidavit in this proceeding, in which he said that he travelled to areas which included Yarmarna and Lake Yeo through to White Cliffs Station through to Lake Minigwal and on to Lake Rason and then to Great Victoria Springs, Ms Harkin said that the Nanatadjarra People had no comment.

31    Fifthly, Mr Harrington Smith’s evidence in the Wongatha People Claim proceeding was that his mother and stepfathers’ country was outside the Nanatadjarra Claim area.

32    Sixthly, contrary to Mr Harrington Smith’s claim that his stepfather Dingy was born near Minnie Creek and within the claim area, Minnie Creek is not within the Nanatadjarra Claim area.

33    Seventhly, the areas identified in [39] of his affidavit in this proceeding regarding Mr Harrington Smith travelling with his parents to hunt and gather are not within the Nanatadjarra Claim area.

34    Eighthly, the areas described by Mr Harrington Smith in [41] of his affidavit as to places he visited with his parents during school holidays are areas which are not within the Nanatadjarra Claim area.

35    Ninthly, Mr Harrington Smith’s gave evidence in the Wongatha People Claim proceeding that he attended various ceremonies relates to ceremonies at Kalgoorlie and Kookynie, which are not within the Nanatadjarra Claim area.

36    Finally, it was submitted that Mr Harrington Smith had not been recognised as having rights to the Nanatadjarra Claim area by reference to the overlapping Nangaanya-ku Claim.

Mr Harrington Smith’s evidence before Lindgren J

37    Justice Lindgren gave lengthy reasons for decision in dismissing the Wongatha People Claim, as referred to at [25] above. His Honour also annexed to his reasons for judgment copies of the evidence in chief given by many witnesses, including Ms Harkin and Mr Harrington Smith. Mr Harrington Smith’s evidence in that proceeding in support of the Wongatha People Claim, some parts of which were referred to by Ms Harkin in her affidavit in the present proceeding as outlined above, may be summarised as follows.

38    Mr Harrington Smith deposed that he was born on 15 July 1945 in a Creek about 40 km east of Mount Margaret. He said that his biological father was a white man, but his Aboriginal father was Garjunu (Dick or Dickie Brown) (the spelling of “Garjunu” is as recorded by Lindgren J and it is to be noted that Mr Harrington Smith refers to his first stepfather as “Garjunu”, “Garjanoo”, “Garnjunoo” or “Gunjanoo” in his evidence in this proceeding). He said that his parents told him that Garjunu came from the Baker Lake (Yapupara) area. He said that his mother was born at Kiritjirri, which is north-east of the Wongatha Claim area and that she came from the area between Jamison and Blackstone. He said that his mother later married Dingy Mason.

39    Mr Harrington Smith gave evidence of his time at the Mount Margaret Mission and how his family and he roamed over quite a large area around Mount Margaret. He said that his parents used to hunt, gather and forage in the area from Laverton to Hawks Nest, which is about 10 km south-west of Laverton, through to other areas, including the lower east-side of Lake Carey. Mr Harrington Smith said he used to accompany his parents when they went to hunt, gather and forage. He said he viewed this as an important aspect of Wongatha culture. Mr Harrington Smith is noted as giving the following evidence regarding children at the Mount Margaret Mission:

We had a cross-section of people from all areas but we spoke the common language which was the Wongatha language and sure, there is a bit of overlap with Ngaanyatjarra, there is a bit of overlap with probably Tjupan, and a bit of overlap with somebody who came from, say, down towards Norseman which is Ngadju country, you know.

40    Mr Harrington Smith said that people who spoke Ngaanyatjarra came from “Baker Lake, Tjirrkarli, Warburton, Jamieson and Blackstone” and were the Ngaanyatjarra people. Mr Harrington Smith is not recorded as saying anything about the Nanatadjarra people.

41    Mr Harrington Smith is recorded as giving evidence in the Wongatha People Claim of attending ceremonies at Kalgoorlie and Kooknie. He also said that his parents spoke the Ngaanyatjarra language, as well as the Wongatha language and that he understood both languages well. He said that he also spoke the Wangkaya language. He deposed that he was related, if not by blood then by skin to the people in the Wongatha Claim.

42    Mr Harrington Smith is also recorded as giving evidence that he understood that the Wanjkayi people of his parents’ generation “roamed fairly widely, both inside and outside what is now the Wongatha Claim area”.

43    He deposed that his mother’s country was east of the Wongatha Claim area, around Jamieson.

44    Mr Harrington Smith said that his parents told him that his father came from the Baker Lake area. He then said that he may have told an anthropologist (Mr Vachon) that his father was a Pitjantjatjara man and that his country was east of Warburton and that he did not know where he was born, but he was led to believe that he came from the Baker Lake area. He said that Baker Lake is “more to do with Ngaanyatjarra people”.

45    Mr Harrington Smith described his “ngurrara” (i.e. “country”) as comprising the places where he was born and where he roamed with his parents before he entered the Mount Margaret Mission as a child. This is where he said he was taught Aboriginal culture and about how to survive. He described that area as being “from White Cliffs to down to Murrin Murrin to Redcastle, to Yundamindra to Linden and back to Burtville then back through the backblocks to White Cliffs again. The southern most part of that area would be a line from Kookynie to Linden. The northern most part would be in the White Cliffs area. The most easterly part would be a line from Burtville to White Cliffs. The western most point would be Malcolm”.

46    Mr Harrington Smith said that he would not include Kalgoorlie in his “ngurrara”.

Mr Harrington Smith’s evidence in reply

47    As noted, Mr Harrington Smith filed an affidavit in reply on 11 May 2020 to the evidence and submissions opposing his joinder application. It is desirable to set out the body of that affidavit (without alteration):

3.    My first step-father was Gunjanoo (Dickie Brown). Gunjanoo (Dickie Brown) was born approximately in 1875. At McKay Creek. Gunjanoo (Dickie Brown) was a Mandjindja from the sandhill country south of Warburton. Range: commencing at Papakula Babbagoola, Range: east to Lengaina (walyitjurkur) place, probably east of Sydney Yeo Crasm: southeast of Wardadikanja (Kaleia Tjukar) or emu totem place perhaps near 120EY 280305 Coordinate: 1260 I 0 Ex270205 Area: 21,000 sqm C-54,60059km.

4.    In the 1920’s aged 16: he arrived at Mount Margaret Mission with his family, seeking medical attention for his right foot which happened at Minnie Creek (190km East of the Mission) during lore business as noted by missionary Rod Rod Schenk's diary in February 1927. He had eight children with Tanguna.

5.    Gunjanoo was also the custodian / guardian of Lake Minigwal, Lake Rason, Lake Yeo, Plumridge Lakes and Lake Carey, to name a few of the lakes in the Great Victorian Desert which was bestowed upon him through Aboriginal law. His Skin Group was Milanka.

6.    At the beginning of the Mount Margaret Mission, South West of Laverton, missionaries Rod and Masie Schenk recorded Aboriginal information in their diaries / journals. It was in one of these that I located a little information on my Aboriginal father Gunjanoo. It was noted that Gunjanoo father had perished and was buried East of Minnie Creek (also known as a Wongi sacred place catted bhildbit).

7.    I remember fondly the corroboree ground at Kookynie. I also remember travelling to corroboree sites at Merolia Homestead but had to be careful because the sites where used for men’s business. I have very distinctive memories of catching the stream train at Morgans or at Mount Malcom.

8.    Dingy Mason was born at Tingi Rock Lake Rason which is in the claim area.

9.    The places that I visited as a child with my parents on law business include Linden Lakes, Pleaides Lake, Lake Mingwal area, Mulga Rock, Showgun, Emperia, Burtville, Harrington Well and Yundamurra.

10.    I was taught how to hunt, gather and forage on a seasonal basis. My parents taught him how to survive in the bush and living on the land. Kangaroo (Marlu), Goanna (Yipa), Bardi (Witchety Grub) and variety of berries and fruits such as the Kalkurla (Silky Pear).

11.    The Mount Margaret missionary, Rod Schenk gave me the new name of Ronald Smith. On l51 April 1992, I took my fathers’ name by deed poll to become Ron Harrington-Smith.

12.    My brother Herbert and I spent all school holidays with Mother, Tanguna and her extended family, including Gunjanoo (Dickie Brown) and Dingy Mason, both of whom adopted Tangunas’ children as their own.

13.    Gunjanoo worked with Wanbirdi (Frank Hazlett) as a logger, trapping / shooting dingos throughout the Great Victorian Desert, some of which they kept as pets. It was on one of these trapping trips that Gunjanoo shot gun accidentally misfired and he shot his right foot, losing three of his toes. As referred to above, Gunjanoo was later taken to Mount Margaret Mission for treatment.

14.    I was involved in the corroboree’ s at Parkston, I saw groups join together with traditional people from Cundeelee, Yalata, Ceduna, involving the Wati Kutharra Lore includes all of the lands,

15.    One site I remember fondly is the corroboree ground at Kookynie. I also remember travelling to corroboree sites near Merolia homestead, but had to be careful because the sites where used for “men’s business”. I have very distinctive memories of catching the train at Mount Morgans or at Mount Malcom, white people in closed carriages, Aboriginal people and their dogs on flat open carriages. The trains would pull up just out of Kalgoorlie, so all Aboriginal people were not to be let off in the town common.

16.    Travelling to Kalgoorlie was a big affair, as most of the Aboriginal people would attend corroboree’s (Kurrangara) held on the outskirts of Parkston. Additionally, corroborees were held regularly in Menzies and Kookynie in which most attending would walk from Parkston to the corroboree grounds, then on to Mount Margaret, as the trains would not pick up Aboriginal people on the returning journey.

17.    All facets of survival were in the knowledge that Aboriginal people could live by the means provided by the environment.

18.    It is my belief that I have native title rights and interests within this claim area and therefore believe that joinder as a respondent to this claim is a course of action that I believe is important.

48    Nowhere in this reply affidavit did Mr Harrington Smith seek to explain the alleged inconsistencies between his evidence in this proceeding and his previous evidence in the Wongatha Claim, as highlighted by Ms Harkin in her affidavit and accompanying submissions.

49    Mr Harrington Smith’s reply affidavit also had some anomalies and notable omissions. First, having deposed at [3] of his reply affidavit that his first step-father Gunjanoo (Dickie Brown) was born in approximately 1875, Mr Harrington Smith then deposed at [4] that in the 1920s, when aged 16, Gunjanoo (Dickie Brown) arrived at Mount Margaret Mission with his family. There appears to be an anachronism with respect to these dates.

50    Secondly, Mr Harrington Smith gave further evidence regarding his memories of attending corroborees at Kookynie and in travelling to Kalgoorlie, but neither of those places is within the Nanatadjarra Claim area.

51    Thirdly, Mr Harrington Smith did not challenge Ms Harkin’s claim that Gunjanoo (Dickie Brown) was from Lake Baker, which is outside the Nanatadjarra Claim area.

52    Fourthly, Mr Harrington Smith deposed at [8] of his reply affidavit that his other step-father, Dingy Mason, was born at Tingi Rock Lake Rason, which is within the Nanatadjarra Claim area. This is to be contrasted with [25] of his first affidavit, in which Mr Harrington Smith said that Dingy Mason was born at Tingi Rock near “Minnie Creek”. Mr Harrington Smith did not respond to Ms Harkin’s assertion that Minnie Creek is in the Yalka determination area and not in the Nanatadjarra Claim area. Mr Harrington Smith also did not respond to Ms Harkin’s claim that Mr Harrington Smith gave evidence at the Wongatha Claim hearing that his mother and step-father’s country are outside the Nanatadjarra Claim area.

53    In the light of these matters, and having regard to the fact that Mr Harrington Smith was a litigant in person, the Court invited him to file an additional affidavit in reply in response to various matters raised by Ms Harkin.

54    Mr Harrington Smith took advantage of that invitation and filed an additional affidavit in reply dated 24 June 2020. Again, it is convenient to set it out in full (without alteration):

1.    I make this further supplementary affidavit in response to the email letter from Ms Jennifer Kershaw of the Federal Court of 28 May 2020 (with attachments).

2.    All of the information provided in this affidavit is based upon my own knowledge, unless otherwise identified and is true to the best of my knowledge, information and belief.

3.    Statement: Mr Harrington Smith claimed that his mother was born at Kiritjirri but he gave evidence in the Wongatha People Claim proceeding that Kiritjirri is within the Ngaanyatjarra lands, which is outside the Nanatadjarra Claim area.

Answer: My mother Nutha married Garnjunoo (Dickie Brown). Garnjunoo had a sister called Yakan who married Kurkurra Kurra (Peter Fraser). Their children are, Dingi and Yinbiddi. Yinbiddi is Jessie Evans Mother and Dingi (or Tingi) is the son of Kurkurra Kukura, and Yagan (or Yakan). Dingi was born 1918 at Tingi Rock Hole / Lake Rason. Tingis' mother also married Kurkurra Kurra. Dingi Mason is my father too. Garnjunoo and my mother did not speak Pitjantjatjara at all.

4.    Statement: Mr Harrington Smith’s evidence that he is a direct descendant of a man and woman who spoke the Ngadadjara dialect of Pitjantjatjara indicates that those antecedents were connected with areas and people different from the Nanatadjarra Claim area.

Answer: I do not speak the language. I did not drink water in the country. I did not live in the Pitjantjatjara country.

5.    Statement: Mr Harrington Smith gave evidence in the Wongatha People Claim proceeding that he is from Lake Baker, which is in the Ngaanyatjarra lands and outside the Nanatadjarra Claim area.

Answer: I may have said that but in retrospect it may be incorrect.

6.    Statement: Mr Harrington Smith’s evidence in the Wongatha People Claim was that his mother and stepfathers’ country was outside the Nanatadjarra Claim area.

Answer: Garngunoo is a Mundinjara on Garngunoos’ fathers side Jina and also Nanatadjarra by birth. Dingi bormn at Tingi rock hole is a Nanatadjarra person by birth.

7.    Statement: Mr Harrington deposed at [8] of his reply affidavit filed on 11 May 2020 that Dingy Mason was born at Tingi Rock Lake Rason, which is within the Nanatadjarra Claim area. This is to be contrasted with [25] of his first affidavit filed on 9 March 2020, in which he said that Dingy Mason was born at Tingi Rock near “Minnie Creek”. Contrary to Mr Harrington Smith's claim that his second stepfather Dingy Mason was born near Minnie Creek and within the claim area, Minnie Creek is not within the Nanatadjarra Claim area.

Answer: Dingi Mason (Tingi) was born at Lake Rason.

8.    Statement: The areas identified in [39) of Mr Harrington Smith's affidavit filed on 9 March 2020 in this proceeding regarding travelling with his parents to hunt, gather and forage are not within the Nanatadjarra Claim area.

Answer: Travelling with my parent to hunt, gather and forage. I was in the Mundinjara and Nanatadjarra claim area.

9.    Statement: The areas described by Mr Harrington-Smith in [41] of his affidavit filed on 9 March 2020 as to places he visited with his parents during school holidays are areas which are not within the Nanatadjarra Claim area.

Answer: Mundinjara and Nanatadjarra Claim area. School holidays and before school holidays with my parents.

10.    Statement: Mr Harrington-Smith’s evidence that he attended various ceremonies relates to ceremonies at Kalgoorlie and Kookynie, which are not within the Nanatadjarra Claim area.

Answer: I also attended ceremonies at Linden, Pleaides, Lake Mingwal, Mulga Rocks and Show- Gun.

11.    Statement: Mr Harrington-Smith has not been recognized as having rights to the Nanatadjarra Claim area by reference to the overlapping Nanatadjarra-ku Claim.

Answer: Yes I do, through Father Peter Fraser, who is father to both Dingi & Jessie Evan’s mother Yinbiddi and also my sister Beth Woods biological father Frank O'Loughlin.

12.    Statement: Having deposed at [3] of his reply affidavit filed in this proceeding on 11 May 2020 that his first step-father Garnjunoo (Dickie Brown) was born in approximately 1875, Mr Harrington-Smith then deposed at [4] that in the 1920s, when aged 16, his first step-father arrived at Mount Margaret Mission with his family.

Answer: Garnjunoo's father Jina is a Mundinjara. Garnjunoo is a Mundinjara, born at M'Kay creek. It is recorded by Schenk's Genealogy & second draft by Associate Professor Neale Draper. My fathers are Peter Fraser, Garnjunoo and Dingi Mason.

13.    Statement: In the Wongatha People Claim proceeding before Lindgren J, Mr Harrington Smith deposed that he was born on 15 July 1945 in a Creek about 40 km east of Mount Margaret. He said that his biological father was a white man, but his Aboriginal father was Garjunu (Dick or Dickie Brown) (the spelling of “Garjunu” is as recorded by Lindgren J and it is to be noted that Mr Harrington Smith refers to his first stepfather as “Garjunu”, “Garjanoo” or Gunjanoo”). He said that his parents told him that Garjunu came from the Baker Lake (Yapupara) area. He said that his mother was born at Kiritjirri, which is north-east of the Wongatha People Claim area and that she came from the area between Jamieson and Blackstone. He said that his mother later married Dingy Mason.

Answer: I was born in Windich Creek. My mother told me.

14.    Statement: Mr Harrington Smith gave evidence of his time at the Mount Margaret Mission and how his family and he roamed over quite a large area around Mount Margaret. He said that his parents used to hunt, gather and forage in the area from Laverton to Hawks Nest, which is about 10 m south-west of Laverton, through to other areas, including the lower east-side of Lake Carey. Mr Harrington Smith said he used to accompany his parents when they went to hunt, gather and forage. He said he viewed this as an important aspect of Wongatha culture. Mr Harrington Smith is noted as giving the following evidence regarding children at the Mount Margaret Mission:

Answer: We had a cross-section of people from all areas but we spoke the common language which was the Wongatha language and sure, there is a bit of overlap with Ngaanyatjarra, there is a bit of overlap with probably Tjupan, and a bit of overlap with somebody who came from, say, down towards Norseman which is Ngadju country, you know.Answer: I did not hear Garnjunoo speak Pitjantjatjara. However, he had markings on his back to prove he went through the law at Mt Alexandra and he was in charge of the Kangaroo dreaming site at Mini Creek and Pilpid. He was a man of very high status and high degree .

15.    Statement: Mr Harrington Smith said that people who spoke Ngaanyatjarra came from “Baker Lake, Tjirrkarli, Warburton, Jamieson and Blackstone” and were the Ngaanyatjarra people. Mr Harrington Smith is not recorded as saying anything about the Nanatadjarra people.

Answer: The people all spoke mixed and different languages.

16.    Statement: Mr Harrington Smith is also recorded as giving evidence in the Wongatha People Claim of attending ceremonies at Kalgoorlie and Kookynie. He also said that his parents spoke Ngaanyatjarra language, as well as the Wongatha language and that he understood both languages well. He said that he also spoke the Wangkayi language. He deposed that he was related, if not by blood then by skin, to the people in the Wongatha People Claim.

Answer: Yes, I speak and understand these languages and attended those ceremonies.

17.    Statement: Mr Harrington Smith is also recorded as giving evidence that he understood that the Wangkayi people of his parents’ generation “roamed fairly widely, both inside and outside what is now the Wongatha Claim area”.

Answer: That is correct. It is the country of my fathers.

18.    Statement: Mr Harrington Smith deposed that his mother's country was east of the Wongatha People Claim area, around Jamieson.

Answer: I also roamed Linden Lakes, Pleaides Lake, Mulga Rocks, Show Gun, Emperor Springs, Burtville, Harrington-Smith, Yundamindara & Lake Mingiwal area.

19.    Statement: Mr Harrington Smith said that his parents told him that his father came from the Baker Lake area. He then said that he may have told an anthropologist (Mr Vachon) that his father was a Pitjantjatjara man, that his country was east of Warburton, and that he did not know where he was born, but he was led to believe that he came from the Baker Lake area. He said that Baker Lake is “more to do with Ngaanyatjarra people” (i.e. not Nanatadjarra).

Answer: Two of my fathers (and Dingi too), were born in Mundinjara Nanatadjarra country through birth. All are true Mundinjara & Nanatadjarra and passed the birth right down through the ages to Jina, Dickie Brown and Dingi.

20.    Statement: Mr Harrington Smith described his “ngurrara” (i.e. “country”) as comprising the places where he was born and where he roamed with his parents before he entered the Mount Margaret Mission as a child. This is where he said he was taught Aboriginal culture and about how to survive. He described that area as being “from White Cliffs to down to Murrin Murrin to Redcastle, to Yundamindra, to Linden and back to Burtville then back through the backblocks to White Cliffs again.” The southernmost part of that area would be a line from ookynie to Linden. The northernmost part would be in the White Cliffs area. The most easterly part would be a line from Burtville to White Cliffs. The western-most point would be Malcolm".

Answer: Yes, and other places mentioned above.

21.    Statement: Mr Harrington Smith said in the Wongatha People Claim proceeding that he would not include Kalgoorlie in his “ngurrara”.

Answer: I think I have the right passed through my fore fathers Gunjunoo and Peter Fraser and Dingi.

22.    It is my belief that I have native title rights and interests within this claim area and therefore believe that joinder as a respondent to this claim is a course of action that I believe is important.

55    It is evident from the matters I have summarised above that there is plainly a dispute as to many of the factual matters asserted by Mr Harrington Smith in his evidence, including evidence relating to his antecedents and whether or not he has a connection with the area the subject of the Nanatadjarra People application. As noted in the summary of the relevant legal principles above, it is not for the Court to seek to resolve these factual disputes in the context of the current application. Nevertheless, Mr Harrington Smith carries the burden of demonstrating that he has a prima facie case in relation to the requirement that his “interests” may be affected by the Nanatadjarra People application. The difficulty he faces is that, even if his evidence is looked at in isolation from that of Ms Harkin, it falls short of establishing, on a prima facie basis, that he has relevant “interests” for the purposes of his joinder application. In particular, when regard is had to the area which is the subject of the Nanatadjarra People Claim, many, if not most, of the matters referred to in Mr Harrington Smith’s evidence concern places or activities carried out outside that area.

56    In addition:

(a)    Mr Harrington Smith has not provided any explanation as to the evident inconsistency between the evidence he gave in the Wongatha People Claim regarding his mother’s birth place which he said then was within the Ngannyatjarra lands (and not the Nanatadjarra Claim area).

(b)    Nor has he sought to explain the evidence he gave in the Wongatha People Claim that he was from Lake Baker, which is not within the Nanatadjarra Claim area, other than to say somewhat unsatisfactorily, that “it may be incorrect”.

(c)    Nor has he satisfactorily explained the evidence he gave in the Wongatha People Claim that his mother and step-fathers’ country was outside the Nanatadjarra Claim area.

(d)    As to Mr Harrington-Smith’s evidence in the Wongatha People Claim that one of his step-fathers (Dingy) was born near Minnie Creek, which is not within the Nanatadjarra Claim area, he has not explained how that can be reconciled with his later claim that he was born at Lake Rason.

(e)    Mr Harrington Smith’s evidence relating to Mount Margaret Mission is insufficient for his joinder application because that Mission is outside the Nanatadjarra Claim area.

(f)    Although it may be accepted that some of the places Mr Harrington Smith says he visited as a child with his parents, such as Pleaides Lake, are within the Nanatadjarra Claim area, that evidence is very general and undeveloped and goes no further than establishing an emotional interest in the area.

57    In circumstances where I am not satisfied that Mr Harrington Smith has established that he has the requisite “interests” under s 84(5), no issue of residual discretion arises.

58    For these reasons, I consider that Mr Harrington Smith’s interlocutory application should be dismissed.

Conclusion

59    For these reasons, the first interlocutory application filed on 9 December 2019 will be allowed, but the second interlocutory application filed on 9 March 2020 will be dismissed. There will be no order as to costs for either interlocutory application.

Associate:

Dated:    17 July 2020

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