Federal Court of Australia

Evans on behalf of the Yarla-Gu Bunna Nangatjara People v State of Western Australia [2021] FCA 1382

ORDERS

THE COURT ORDERS THAT:

1.    The applicant in the Nangaanya-ku claim (WAD460/2018) be joined as a respondent in the Yarla-Gu Bunna Nangatjara claim (WAD 213/2021).

2.    The Yarla-Gu Bunna Nangatjara application for native title determination filed on 8 September 2021 (WAD213/2021) be summarily dismissed and/or struck out.

3.    If the parties are unable to agree on costs, within 21 days hereof each is to file brief submissions not exceeding three pages in length which explains their respective positions on costs. The issue of costs will then be heard and determined on the papers and without a further oral hearing.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    By an interlocutory application filed on 6 October 2021, the applicant seeks to be joined as a respondent in what may conveniently be described as the Yarla-Gu Bunna Nangatjara claim (WAD213/2021), which was filed on 8 September 2021. The applicant for joinder is the applicant in what may conveniently be described as the Nangaanya-ku claim (WAD460/2018), which was filed on 9 October 2018. The basis for the joinder claim is that the applicant in the Nangaanya-ku claim has a registered native title claim over the whole of the Yarla-Gu Bunna Nangatjara claim area and therefore has an interest which may be affected by any determination in that other proceeding where the claim areas overlap.

2    The Nangaanya-ku applicant also seeks to have the Yarla-Gu Bunna Nangatjara claim summarily dismissed or struck out on various grounds, including abuse of process.

The Nangaanya-ku applicant’s evidence summarised

3    The Nangaanya-ku applicant relied upon an affidavit of Mr Giacomo Boranga affirmed on 1 October 2021, which may be summarised as follows.

4    Mr Boranga described the history of previous overlapping native title claims, being the Nangaanya-ku claim and the Nangatjarra claim (WAD348/2017) and deposed that when the Nangaanya-ku claim was filed on 9 October 2018, the applicant included Mr Leonard Wells. I accept that evidence.

5    Mr Boranga stated that the applicant in the Nangatjarra claim included Ms Maisie Harkin. I accept that evidence.

6    As part of the procedural history in those overlapping claims, on 17 September 2019, Ms Harkin filed an affidavit in support of her interlocutory application in the Nangatjarra claim seeking various orders, including orders removing certain persons from the applicant in that claim. On 5 November 2019, that interlocutory application was dismissed.

7    On 20 October 2020, the Nangaanya-ku applicant filed an interlocutory application seeking strike out or summary dismissal of the Nangatjarra claim.

8    On 26 November 2020, the Court made orders replacing the applicant in the Nangaanya-ku claim, which had the effect of removing Mr Wells and Mr Bruce Smith as members of the applicant in that claim.

9    On 18 January 2021, the Court made an order in the Nangatjarra claim that a competing native title determination application filed on 7 July 2017 by the Nangatjarra People (including Ms Maisie Harkin) be summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (see Harkin on behalf of the Nangatjarra People v State of Western Australia (No 2) [2021] FCA 3 (Harkin (No 2)).

10    On 18 March 2021, Ms Harkin filed an interlocutory injunction seeking to be joined as a respondent party in the Nangaanya-ku claim. Subsequently so did both Mr Wells and Mr Ivan Fraser.

11    On 6 May 2021, the Court dismissed those interlocutory applications (see Forrest on behalf of the Nangaanya-ku Native Title Claim Group v State of Western Australia [2021] FCA 467).

12    On 28 July 2021, Registrar Daniel made orders in the Nangaanya-ku claim, which included orders requiring that the Nangaanya-ku applicant and the State of Western Australia file by 6 September 2021 a minute of consent determination of native title for the proposed Part A area and programmed the matter for hearing shortly thereafter.

13    Mr Boranga deposed that he attended a meeting on 24 and 25 August 2021 in which the Nangaanya-ku group members authorised the Nangaanya-ku applicant to consent to filing a minute of proposed consent determination (Consent Determination Minute). He said that the authorisation was given pursuant to a traditional decision-making process. He deposed that Ms Sandra Evans (who is part of the applicant in the Yarla-Gu Bunna Nangatjara claim) was present on both those days and participated in the decision-making process. I accept that evidence.

14    Mr Boranga then described the steps taken by the first respondent in the Nangaanya-ku claim in response to Registrar Daniel’s orders dated 28 July 2021. The effect of those steps was to have the matter of the Part A consent determination ready for hearing shortly after 6 September 2021.

15    On 8 September 2021, the applicant in the Yarla-Gu Bunna Nangatjara claim (WAD213/2021) filed a native title determination application which overlaps part of the Nangaanya-ku Part A claim area, as well as part of the Nangaanya-ku Part B claim area.

16    It is desirable to set out in full [28] of Mr Boranga’s affidavit, which relates to the status of the people who constitute the applicant in the Yarla-Gu Bunna Nangatjara claim, i.e. Ms Harkin, Ms Evans, Mr Wells and Ms Ann Edwards (without alteration):

Based on my familiarity with the Nangaanya-ku claim and my previous attendance at Nangaanya-ku claim group meetings, Sandra Evans, Maisie Harkin and Leonard Wells are recognized by the proposed common law holders under the Nangaanya-ku consent determination as being common law holders through descent from one or more of the apical ancestors listed in the proposed consent determination. I do not know of any genealogical connection between Ann Edwards and any of the apical ancestors in the proposed consent determination. To be best of my knowledge, Ann Edwards was invited to, but did not, participate in the connection research for the Nangaanya-ku claim. It is possible that Ann Edwards would be recognized as a common law holder under the proposed Nangaana-ku (sic) consent determination, if she could demonstrate a genealogical connection to one of the listed apical ancestors or if she satisfied one or more of the general criteria for being a common law holder in the consent determination.

The Yarla-Gu Bunna Nangatjara applicant’s evidence summarised

17    The four affidavits filed by the Yarla-Gu Bunna Nangatjara applicant in the present proceeding (each affirmed on 27 October 2021) may be summarised as follows.

Ms Harkin

18    Ms Harkin described herself as an Apical of the Yarla-Gu Bunna Nangatjara claim group. She said that she believed that the native title rights and interests claimed by the Yarla-Gu Bunna Nangatjara claim group have not been extinguished in relation to any part of the area covered by the Nangaanya-ku claim, nor that any of the areas covered by that application were covered by an approved determination of native title.

19    She described authorisation meetings of the Yarla-Gu Bunna Nangatjara claim group on 25 June 2021 and 26 July 2021. She said it was her understanding and belief that these authorisation meeting were properly notified and convened and that all members of the claim group were invited to attend. She deposed that there was no process of decision-making that, under traditional laws and customs of the Yarla-Gu Bunna Nangatjara native title claim group, had to be complied with in relation to such matters as authorisations. She said that the decision-making process agreed to and adopted on 25 June 2021 and 26 July 2021 was “consultation amongst the members of the Yarla-Gu Bunna Nangatjara Native Title claim group”. She said that following consultation and discussion all decisions are then made by the persons present. She said that if “decisions cannot be made by all, the members of the Yarla-Gu Bunna Nangatjara Native Title claim group must work through the decision by talking it through thoroughly until a full agreement can be made”. She said that all decisions made at the two authorisation meetings were made by all members of the claim group who were present. She said the claim group agreed to herself, Ms Evans, Mr Wells and Ms Edwards making an application for determination of native title under s 61 of the Native Title Act 1993 (Cth) (NT Act), as required by s 251B.

20    Ms Harkin added, in what might properly be described as a submission, that the decision authorising the making of the s 61 application was based on the process set out in s 251B(a) of the NT Act, which she described as “were (sic) there is a process of decision making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind”. This submission is inconsistent with the earlier part of Ms Harkin’s affidavit.

21    Ms Harkin referred to Mr Boranga’s claim that Ms Harkin was recognised under the Nangaanya-ku claim as a common law holder through descent from one or more of the Apicals listed in the proposed consent determination which, in her case was through Apical ancestor Alec Bilson, whom she acknowledged was her adopted grandfather. She then referred to her assertion of rights under the NT Act through her biological ancestors.

22    Ms Harkin described her attempts to have Alec Bilson removed as an Apical in the Nangaanya-ku claim because she said he was Nangatjara.

23    Ms Harkin said that her biological grandfather, of whom she was a direct blood descendant, was Wonanu Nying Jia Birria and that she was an Apical in the Yarla-Gu Bunna Nangatjara claim through her own birthright and as an Elder having rights and interests in the claim area. She said that her mother “Fanny Bilson” was born in the claim area at the Kungkarrungkara Rockhole, which is also her birth place.

24    Ms Harkin referred to various secondary sources, which related to her birth and early years spent with her family before she was placed in a mission in 1941 when aged four. Ms Harkin also described a breakdown of a meeting held in August 2018 in Kalgoorlie when the Nangatjara group broke away from the Nangaanya-ku group.

25    Ms Harkin then described various events relating to the making of the Nangatjarra claim in proceeding WAD348/2017, which she said contradicted the application to have the Yarla-Gu Bunna Nangatjara application summarily dismissed. These events dated back to 2009. Ms Harkin was critical of the enquiries made in respect of the claim in WAD348/2017. She was also critical of the actions taken by the Nangatjara people in progressing their native title claim.

26    Ms Harkin said that Nangaanya-ku “does not refer to a tribe nor is it a tribal boundary nor does it refer to a traditional tribe of people or a society of people” (emphasis in original) and that use of the name “Nangaanya-ku” did not prove a connection to country.

27    Finally, Ms Harkin denied that her claim group’s application was vexatious or an abuse of process.

Ms Evans (Thunawarra)

28    Ms Evans defined and clarified the following terms:

(a)    Yarla-Gu – an ancient language meaning “belonging to us”;

(b)    Bunna – land which belongs to the tribe/tribal group;

(c)    Nangatjara – the name of the tribe/tribal group; and

(d)    Nangatjara – is the same tribe/tribal group as Nanatadjara, as is Nangatadjara.

29    Ms Evans said that she had supported past interlocutory applications by the Nangatjara claim because she believed that the claimants in the Nangatjara claim are the rightful native title holders of the claim area.

30    With respect to meetings of the Nangaanya-ku claim group meetings held on 24 and 25 August 2021, Ms Evans acknowledged that she attended those meetings but she said she was there merely as an observer. Ms Evans gave a detailed descriptions of her family history. She was also critical of some aspects of the facts asserted in the Consent Determination Minute in the Nangaanya-ku claim.

Mr Wells

31    Mr Wells described the claims of vexation and abuse of process as “offensive, inaccurate and unfair”. Mr Wells said that he attended a meeting held on 10 August 2018. He said that when a Central Desert Native Title Services lawyer, Mr Malcolm O’Dell, asked those present if any were born or had a parent or grandparent born in the claim area, Mr Wells stood up and identified Kitty Wells as such a person.

32    Mr Wells also described a meeting he had on 21 September 2018 with the anthropologist, Dr Heather Lynes, who acted for the Nangaanya-ku claim group. He said that he told Dr Lynes that Kitty Wells, Raymond Wells and Binghy Lynch should not be included in the Nangaanya-ku claim. Mr Wells also described what happened at the authorisation meeting, with particular reference to the identification of the Apicals and who should be included in the claim group. He said that the meeting descended into “total chaos” and that he was nominated as a group member without really knowing what was happening.

33    Mr Wells claimed that his attempts to ensure that only the right people were included in the Nangaanya-ku claim were “continually ignored and disregarded”. He described various meetings in which he raised his concerns and reiterated that his attempts to have the members of the Nangaanya-ku claim group prove their entitlement to be included in the claim were disregarded and ignored. He said that this led to his resignation in 2020 as a member of the Nangaanya-ku claim, primarily because of his concern that the claim included many people and family groups who should not have been included. He described how at a meeting on 3 May 2021 he raised an objection to Kitty Wells and Raymond Wells being listed as Apicals on the Nangaanya-ku prescribed body corporate.

Ms Edwards

34    Ms Edwards described her ancestry within the Yarla-Gu Bunna Nangatjara tribe and her early childhood. She said that she was an Elder of her claim area and could speak for her country.

35    At [18] of Ms Edwards’ affidavit, she referred to [34] of the Nangaanya-ku applicant’s response to the Nanatadjarra applicant’s statement of issues facts and contentions filed on 3 February 2020 in WAD348/2017, which related to the connections of Elders to the claim area:

The Nangaanya-ku Applicant does not know and therefore does not admit the statements made on pages 30 - 35, save for the following:

(a)    the Nangaanya-ku Applicant admits that Bidarn Maisie Harkin, and the descendants of the union of Nunkily Anne Edwards and Lindsay McIntyre hold native title rights and interests under traditional law and custom, in the Nangaanya-ku claim area, albeit not necessarily for the reasons given in the statements provided at pages 30 - 32.

Ms Edwards stated that:

The above statement is incorrect and derogatory to me, my descendants and ancestors and are based on fabricated research. This statement brings into question the integrity of the Nangaanya-ku claim group’s expert research. I come to this conclusion based on the fact that my Mother Mavis Edwards is married to Lindsay McIntyre and they have a Son named Christoper for the Nangaanya-ku claim to document this statement without verifying their research is unprofessional and false. Prior to this statement being published or used my approval and consent should have been sought, this is an abuse of authority by Nangaanya-ku and their representative body CDNTS.

The parties’ submissions summarised

(a) Nangaanya-ku applicant

36    The Nangaanya-ku applicant emphasised that everything necessary to be done by the parties in order for Part A of the Nangaanya-ku claim to be determined by consent has been done. The Yarla-Gu Bunna Nangatjara claim substantially overlaps both the Nangaanya-ku Part A and Part B claim areas. On 6 September 2021 (i.e. two days before the Yarla-Gu Bunna Nangatjara claim was filed), orders were made by consent programming Nangaanya-ku Part B to a hearing. The Nangaanya-ku applicant contended that, as is apparent from those orders, s 47B of the NT Act is the only outstanding issue in relation to Part B.

37    The Nangaanya-ku applicant emphasised that the NT Act requires that all claims over the same area be determined at the same time, resulting in a single in rem determination of native title. Accordingly, the filing of the Yarla-Gu Bunna Nangatjara claim:

(a)    prevents the proposed Nangaanya-ku Part A consent determination from being made; and

(b)    fundamentally changes the basis upon which the parties and Court have proposed the Nangaanya-ku Part B proceeding will be conducted.

38    The Nangaanya-ku applicant also emphasised the following matters:

(a)    the Nangaanya-ku claim has been on foot for nearly three years;

(b)    the Nangaanya-ku claimants provided considerable connection material to the State, which it (acting in the interests of the whole community) has assessed in order to be satisfied that there is a credible and cogent basis for consenting to a determination; and

(c)    the Nangaanya-ku Part A consent determination has been authorised by the proposed native title holders.

39    The Nangaanya-ku applicant urged the Court to take judicial notice of the fact there will be very considerable additional expense and delay, and additional stress on the Nangaanya-ku claimants, if there needs to be a trial of the overlapping Nangaanya-ku and Yarla-Gu Bunna Nangatjara claims.

40    For these reasons, the Nangaanya-ku applicant contended that the filing of the Yarla-Gu Bunna Nangatjara claim is unjustifiably oppressive to all the parties to the Nangaanya-ku Part A and Part B proceedings, and for that reason alone is an abuse of process.

41    In addition, the Nangaanya-ku applicant contended that consideration of the procedural history of the native title claims in respect of the Nangaanya-ku claim area confirms and provides additional reasons why the filing of the Yarla-Gu Bunna Nangatjara claim is an abuse of process and vexatious. It is convenient to address that procedural history from the perspective of the previous actions of the following four persons who now comprise the applicant in the Yarla-Gu Bunna Nangatjara claim.

42    Ms Harkin: First, as a member of the applicant for the Nanatadjarra claim in 2019, Ms Harkin unsuccessfully sought to amend the applicant, claim group and claim boundary for that claim. Then, on 4 December 2020, Ms Harkin proposed to amend the Nanatadjarra claim by reducing the claim area. Hence the Yarla-Gu Bunna Nangatjara claim is now the fourth iteration of the claim area over which Ms Harkin asserts native title, and the third iteration of the persons said by Ms Harkin to hold native title in the general area of the Nangaanya-ku claim.

43    Secondly, in January 2021, the Nanatadjarra claim was summarily dismissed on either or both of two grounds: lack of authorisation and that it was made on behalf of a subgroup (see Harkin (No 2)). In the context of those earlier proceedings, Ms Harkin deposed to the existence of a traditional decision-making process and to her previous misunderstanding about the requirements of s 251B of the NT Act. Yet in her s 62 affidavit affirmed on 26 August 2021 as part of the Yarla-Gu Bunna Nangatjara native title determination application (Form 1), Ms Harkin deposes (paragraph 5(e)) that “[t]here is no process of decision-making that, under the traditional laws and customs of the Yarla-Gu Bunna Nangatjara Native Title claim group, must be complied with in relation to authorising the making of native title determination applications and things of that kind”. At paragraphs 5(f) and (l), Ms Harkin refers to a decision-making process having been agreed to and adopted at the meetings at which the Yarla-Gu Bunna Nangatjara claim was said to have been authorised. The Nangaanya-ku applicant invited the Court to compare Ms Harkin’s s 62 affidavit at paragraph 5(k); Schedule R to the Form 1 at numbered page 16; and Attachment R to Schedule R to the Form 1 (being the certification of authorisation) at item 5. It contended that this material indicated consistently with Ms Harkin’s affidavit affirmed on 3 November 2020 (which was filed in the previous Nanatadjarra claim (WAD348/2017), a copy of which was admitted into evidence as an annexure to the affidavit of Mr Boranga) the existence of a traditional decision-making process. The Nangaanya-ku claimants are now faced again with being vexed by the issue of the proper decision-making process by which Ms Harkin and others have purportedly been authorised to bring this latest native title claim.

44    Thirdly, in March 2021 Ms Harkin unsuccessful applied to be joined as a respondent to the Nangaanya-ku claim. That application was unsuccessful in part because of its “sweeping generality and lack of particularisation” (see Forrest at [58]).

45    Mr Wells: Mr Wells was an applicant in the Nangaanya-ku claim. In that capacity he acknowledged the existence of a traditional decision-making process under the laws and customs of the claim group (of which he was part) and deposed to the correctness of the Nangaanya-ku claim. In November 2020, he was removed pursuant to s 66B of the NT Act on the basis that he resigned. Mr Wells then sought to be joined as a respondent to the claim, which application was dismissed for the same reasons as Ms Harkin’s application. Now, as an applicant in the Yarla-Gu Bunna Nangatjara claim, Mr Wells is seeking to prosecute a claim to native title over a somewhat different area to the Nangaanya-ku claim area on behalf of a differently constituted claim group. As is the case with Ms Harkin, in his s 62 affidavit in support of the Yarla-Gu Bunna Nangatjara claim Mr Wells now relies upon an agreed and adopted decision making process to authorise him as an applicant.

46    The Nangaanya-ku applicant contended that, in the following two respects, the very late filing of the Yarla-Gu Bunna Nangatjara claim constitutes an abuse of process and/or is vexatious. First, Mr Wells’ changed position does not raise a credible triable issue. Secondly, the Nangaanya-ku respondents are now being vexed by a further proceeding instituted by Mr Wells.

47    Ms Evans and Ms Edwards: On 3 November 2020 in the previous Nanatadjarra claim (WAD348/2017), both Ms Evans and Ms Edwards swore affidavits supporting Ms Harkin’s changed position on the existence of a traditional decision-making process (these affidavits were admitted into evidence as annexures to Mr Boranga’s affidavit). Ms Evans also attended the authorisation meetings for the Nangaanya-ku Part A consent determination and participated in the traditional decision-making process. Now, like Ms Harkin and Mr Wells, both depose in their s 62 affidavits in the Yarla-Gu Bunna Nangatjara claim that they are authorised as an applicant for the Yarla-Gu Bunna Nangatjara claim using an agreed and adopted decision-making process.

48    The Nangaanya-ku applicant contended that they ought not be vexed by having to deal again with such authorisation issues in the Yarla-Gu Bunna Nangatjara claim proceedings.

49    The Nangaanya-ku applicant submitted that summary dismissal of the Yarla-Gu Bunna Nangatjara claim will not deprive at least three of the four Yarla-Gu Bunna Nangatjara claim applicants of recognition as native title holders over the Yarla-Gu Bunna Nangatjara claim area. And while the Yarla-Gu Bunna Nangatjara claim group description refers to names of Apical ancestors which are quite different to the Apical ancestors under the proposed Nangaanya-ku consent determination, the Consent Determination Minute recognises that others who are not descendants from named Apical ancestors may be common law holders. Hence summary dismissal of the Yarla-Gu Bunna Nangatjara claim will not cause manifest injustice to persons who may hold native title as claimed in that claim, so submitted the Nangaanya-ku applicant.

50    The Nangaanya-ku applicant also submitted that there is no reasonable prospect that the Yarla-Gu Bunna Nangatjara applicant can establish that they are authorised to bring the Yarla-Gu Bunna Nangatjara claim in accordance with the proper decision-making process under s 251B of the NT Act. The situation with the Yarla-Gu Bunna Nangatjara claim is in this regard not relevantly distinguishable from the decision in Harkin (No 2).

51    Alternatively, the Nangaanya-ku applicant submitted that there is no reasonable prospect that the Yarla-Gu Bunna Nangatjara applicant can establish they were authorised pursuant to the purported agreed and adopted process.

(b) State of Western Australia

52    The State supported the interlocutory application. In particular it contended that the Yarla-Gu Bunna Nangatjara application does not comply with s 61 of the NT Act and is liable to be struck out under s 84C(1) and/or the bringing and maintenance of the Yarla-Gu Bunna Nangatjara application constitutes an abuse of process which the Court should not permit.

(c) Yarla-Gu Bunna Nangatjara applicant

53    Up until shortly before the hearing, the Yarla-Gu Bunna Nangatjara applicant were represented by ESJ Law, however, when those applicant filed their submissions and supporting affidavits they no longer had legal representation.

54    The Yarla-Gu Bunna Nangatjara applicant said that they opposed the interlocutory application on the basis that not all the persons in the Nangaanya-ku claim held native rights and interests and also that the interlocutory application was not permissible because the Nangaanya-ku had no rights in respect of lands of the Yarla-Gu Bunna Nangatjara People.

55    The Yarla-Gu Bunna Nangatjara applicant said that they were seeking to have the following Apical ancestors removed from the Nangaanya-ku claim: Kulbundja Alec Bilson, Ningu and Nu:Nanj, relying on s 203BE(2)(a) of the NT Act.

56    The Yarla-Gu Bunna Nangatjara applicant sought to have their application for native title determination proceed to registration or, alternatively, sought its continuance under s 84D(4)(a) of the NT Act.

57    It is apt to set out [7] of written submissions (without alteration and footnotes omitted):

The Yarla-Gu Bunna Nangatjara People Application is a new claim is within the Nangatjara Traditional Lands of our ancestors, was made on behalf of all and authorised by all Nangatjara as Traditional Owners and under traditional laws and customs we have the authority to speak for country. We are the actual native title holders. As the First Respondent purports this reasoning. They should also contest those who are not. If purported native title holders have made false claim of connection unwittingly or otherwise.

58    The Yarla-Gu Bunna Nangatjara applicant pointed to the following evidence in support of their claim that it would be “a gross injustice” if the Nangaanya-ku Part A consent determination was made having regard to the following issues regarding Nangaanya-ku Apicals and related matters (emphasis in original and footnotes omitted):

(a)    Yampi Alice, Thelma O’loughlan (Applicant) stated Yampi is from Ooldea (SA) in Wongatha Hearing. In Nangaanya-ku Application she is said to be from Lake Yeo area later reference to Kaarnka.

(b)    Tamalay/Nu:na Roundhead, Ivan Forrest (Applicant) Nu:na was born around Laverton and was connected to Kookynie in Wongatha Hearing. In Nangaanya-ku Application she is from near Jasper Hill and her country is all the middle of the Claimed Area.

(c)    Yowajti, Marilyn Janice Burton (Applicant) states from Rockhole Tjurn Bartletts Bluff. The place for Yowajti is Rockhole Tuwan.

(d)    Janice Scott evidence in Wongatha Hearing differs to Nangaanya-ku Application.

(e)    Kaarnka, by Frank O’loughlan description to Tindale, Frank O’Loughlin at 26 years of age from Burtville as being East of Burtville, ESE of Minnie Creek c200m. E of here; sand and big hill there (Machin, 1999). Dimple Sullivan describes Kaarnka as being “just south of Warburton, east of Lake Yeo, and about 100km south-east of Minnie Creek.”

(f)    Surprise Granite Rockhole (Teeweedee Ginger Parker) as CDNTS community sessions map put him well south west of Claimed Area.

(g)    Yowalga (Yourabarou Adelaide Johnson) near Baker Lake not anywhere near Claimed Area.

(h)    Rockhole Tuwan as above at 9(c). In Spinifex country. Scott Cane’s book places it in Spinifex country well outside Claimed Area.

59    The Yarla-Gu Bunna Nangatjara People submitted that the authorisation for the Nangaanya-ku claim was invalid and non-compliant with s 61(1) of the NT Act because the authorisation had to be made by the “actual holders” of native title and not merely persons who claim to be native title holders.

60    The outline of written submissions identified the following claimed problems with the Nangaanya-ku claim (footnotes omitted and emphasis in original):

16.    Bidarn Maisie Harkin was born in Nangatjara country, traditional way, has her Tjukurrpa in Nangatjara country. As did her Mother, her Uncles, her Grandfather, her Adopted Father, and his Father and Uncles, even his Grandfather. All are Nangatjara.

17.    The Nangaanya-ku Application has incorrectly claimed Nangatjara apical ancestor in their claim. Firstly, no evidence for Kulbundja Alec Bilson was provided to CDNTS as Giacomo Boronga Affidavit (28) wrongly implies that Maisie Harkin and Sandra Evans is included, evidence was not provided to CDNTS. Secondly, and just as important, Kulbundja Alec Bilson always identified as being Nangatjara. Not Wankayi or Spinifex. Apical Ningu and descendants identify as Nangatjara. Nu:Nanj and descendants identify as Nangatjara. The Nangaanya-ku Application also incorrect asserts Bidarn Maisie Harkin is solely in Claimed Area under Apical Kulbundja. Apical Kitty Lynch and her descendants identify as Nangatjara.

18.    Nangatjara has a Tribal Boundary as identified by Tindale’s 1940 and 1970 widely known Tribal Map. Nangatjara’s Tribal Boundary has Apicals preceding sovereignty with all the descendants of those Apicals included in and authorising the Yarla-Gu Bunna Nangatjara Peoples Application.

19.    The Nangatjara are not a Sub-group of The Yarla-Gu Bunna Nangatjara People Application Claimed Area. The Nangaanya-ku Applicant, purporting to being the wider group, claiming over Nangatjara Traditional Land without the consent of the Nangatjara. They purported that inclusion but in reality were/are extinguishing the identity of the Nangatjara.

20.    The Nangaanya-ku Identify as Wangkayi or (Wongatha) and/or Spinifex people. Much of the Goldfields region has identified as Wangkayi, but it is a modern not a traditional conception nor identifiable at sovereignty. Both these claims of Identity’s do not comprise anywhere near the Claimed Area and they did not assert this in their Application anywhere until the Joint Submissions of the Applicant and the First Respondent in Support of Proposed Determination. The Nangaanya-ku Applicant did not change their Form 1 to reflect this. During 1954, Nangatjara were still identifying as Nangatjara to researchers.

21.    The Nangaanya-ku Apicals include those from Walgen, Tjalkadjara, Mandjindja, and Pitjanjantjara. The Nangatjara Traditional Boundary is largely overlapped by Nangaanya-ku Application with Walgen and Mandjindja taking up the remainder. Mandjinda in the North and Walgen in the South West. There is clear, separate and distinct identity between Nangatjara, Walgen and Mandjindja. As there is between Nangaanya-ku and Nangatjara.

61    The Yarla-Gu Bunna Nangatjara People opposed costs being awarded against them in respect of the interlocutory application because they said they had filed an application for native title on their traditional land which is their right. They asked that the Court remove from Part A of the Nangaanya-ku Consent Determination Minute the area covered by the Yarla-Gu Bunna Nangatjara People application on the basis of “false claims being made from the inception of the Nangaanya-ku application in the Claim Area of the Yarla-Gu Bunna Nangatjara People Application WAD 213 of 2021”.

Consideration and determination

(a) Joinder

62    The relevant legislative provisions and legal principles relating to joinder in native title litigation were set out in Forrest at [47]-[50]:

47    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.

48    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.

49    It is common ground that the following three elements must be addressed 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 it is in the interests of justice to join the person as a party, which involves a discretion, which must be exercised judicially.

50    Some of the relevant legal principles were recently summarised in Harkin (No 1) at [10]:

(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.

(b) Summary dismissal, strike out and want of authorisation

63    The relevant legal principles concerning summary dismissal and strike out (including under s 84C of the NT Act) were set out in Harkin (No 2) at [9]-[23] and, for convenience (and despite their length), are now repeated (emphasis in original and denotes defined expression):

9    As noted, in seeking summary dismissal, the claimant relies on s 31A(2) of the FCA Act. Alternatively, it relies upon s 84C(1) of the NT Act to have the proceeding struck out. The fundamental underlying issue in both cases is whether the Nanatadjarra claim has been validly authorised.

10    Section 31A(2) of the FCA Act is as follows:

31A    Summary judgment

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

11    Sub-section 84C of the NT Act provides:

84C    Striking out applications for failure to comply with requirements of this Act

Strike out application

(1)    If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.

Note:    The main application may still be amended even after a strike out application is filed.

Court must consider strike out application before other proceedings

(2)    The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1).

Federal Court Chief Executive Officer to advise Native Title Registrar of application etc.

(3)    The Federal Court Chief Executive Officer must advise the Native Title Registrar of the making of any application under subsection (1) and of the outcome of the application.

Other strike out applications unaffected

(4)    This section does not prevent the making of any other application to strike out the main application.

12    The general legal principles guiding the exercise of the Court’s power under s 31A(2) of the FCA Act are well known. It is convenient to reproduce McKerracher J’s helpful analysis and description of the principles in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 at [3] (with particular reference to summary dismissal being sought by a respondent party, as is the case here):

Without reference to all the well-known authorities, the parties agree that it is well established that the Court may give judgment for a defending party in relation to the whole or any part of a proceeding where the Court is satisfied that the prosecuting party has no reasonable prospects of successfully prosecuting the proceeding or a part of the proceeding. Further:

•    the claim need not be hopeless or bound to fail for it to have no reasonable prospects of success: s 31A of the Federal Court Act;

•    a reasonable prospect of success is one which is real, not fanciful or merely arguable: Rogers v Assets Loan Co Pty Ltd (2008) 250 ALR 82 per Logan J (at [41]);

•    there will be no prospect of success in circumstances where there is a defect in the pleadings which cannot be cured: Ship “Sam Hawk” v Reiter Petroleum Ltd (2016) 246 FCR 337 per Kenny and Besanko JJ (at [269]);

•    s 31A is amenable to resolving straightforward questions of law: Luck v University of Southern Queensland [2008] FCA 1582 per Logan J (at [16]). However, summary judgment may still be appropriate if a question raised is of some complexity: SK Foods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543 per Flick J (at [115]);

•    if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Gordon J (at [127]);

•    it is clear that the legislature’s intention in enacting s 31A was to lower the bar for obtaining summary judgment, including summary dismissal, below that fixed by previous authorities: Spencer v Commonwealth of Australia (2010) 241 CLR 118 per Hayne, Crennan, Kiefel and Bell JJ; Jefferson Ford per Gordon J (at [127]);

•    s 31A permits dismissal of a proceeding where an inquiry into the merits of the issues of law demonstrates the arguments are insufficiently strong to warrant the matter going to trial: McAleer v University of Western Australia (No 3) (2008) 171 FCR 499 per Siopis J (at [39] and the cases therein cited);

•    summary dismissal will not apply to ‘a real question of law that is serious, important or difficult, involves conflicting authority, or is apparently arguable yet novel’: Nichol v Discovery Africa Ltd (2016) 343 ALR 594 per Greenwood, McKerracher and Moshinsky JJ (at [134]);

•    the moving party bears the onus of persuading the Court the application has no reasonable prospects of success. The assessment of whether a proceeding has no reasonable prospects of success necessitates the making of a value judgement in the absence of a full and complete factual matrix and argument, with a result that the provision vests a discretion in the Court. That discretion includes whether to deal with the motion at once or at some later stage in the proceedings, when the legal and factual issues have been more clearly defined: Kimber v The Owners of Strata Plan No 48216 [2017] FCAFC 226 per Logan, Kerr and Farrell JJ (at [62]) quoting with approval Eliezer v University of Sydney (2015) 239 FCR 381 per Perry J (at [37]);

•    despite the threshold for summary dismissal having been lowered, it must still be exercised with caution. The power is not to be exercised lightly: Spencer v Commonwealth per Hayne, Crennan, Kiefel and Bell JJ (at [60]);

•    the Court does not, in such an application, conduct a ‘mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial’. Rather, it ‘requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial’: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 per Reeves J (at [46]); and

•    each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant facts and circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect materials available to the Court for considering the application, for example, where the pleadings have been exchanged, or discovery of documents has occurred: Cassimatis per Reeves J (at [46]).

13    Particular caution needs to be exercised in determining whether summary dismissal should be granted in circumstances where there are factual disputes and the evidence is not in its final form (see Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; 236 ALR 720 at [43]-[45] per Rares J).

14    The need for caution before dismissing an action summarily was emphasised by the Full Court in Danthanarayana v Commonwealth of Australia [2016] FCAFC 114 at [4] (see also Trkulja v Google LLC [2018] HCA 25; 263 CLR 149 at [22] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ):

… to summarily dismiss a proceeding, and thereby preclude a person from having their case determined on its merits at a final hearing, is a serious step taken only with great care and if it is possible to conclude with confidence that there is no reasonable prospect of success; this is so despite the fact that under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the Court Act) the power to summarily dismiss a proceeding is not dependent on the case being “hopeless” or “bound to fail” for it to have no reasonable prospect of success (Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [17]-[26]).

15    Turning now to s 84C of the NT Act, it is unnecessary to summarise the relevant principles because I find that the Nanatadjarra claim should be summarily dismissed under s 31A(2) of the FCA Act.

(ii) The requirement of authorisation

16    Section 13(1) of the NT Act provides that an application may be made to the Court for a determination of native title in relation to an area for which there is no approved determination of native title. Who may apply for a determination of native title is dealt with in s 61(1), which contains a table, the relevant part of which states:

Persons who may make application

(1)    A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or

Note 1:    The person or persons will be the applicant: see subsection (2) of this section.

Note 2:    Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group.

17    Sub-sections 61(4) and (5) should also be noted. The former provision requires that a native title determination application must name the persons (or otherwise describe them sufficiently) who constitute the native title claim group and authorised the making of the application. The latter provision requires that an application for native title determination be in the prescribed form, be filed in the Federal Court, contain such information in relation to the matters sought to be determined as is prescribed and be accompanied by any prescribed documents and any prescribed fee.

18    Section 62 identifies information which must be contained in a claimant application or accompany such an application. It provides that a claimant application must be accompanied by an affidavit sworn by the applicant which provides inter alia “that the applicant is authorised by all persons in the native title claim group to make the application and to deal with matters arising in relation to it”. A note to that provision provides that s 251B states what it means for the applicant to be authorised by all the persons in the native title claim group (noting ss 13(3) and 15AB(2) of the Acts Interpretation Act 1901 (Cth) as to the use of notes in statutory interpretation).

19    As noted, s 251B deals with what it means for a person or persons to be “authorised” by all of the persons in the native title claim group. Section 251B is in the following terms:

Authorising the making of applications

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind – the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)    where there is no such process – the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

20    The term “native title claim group”, as found in both the Table in s 61(1) and also in s 251B, is defined in s 253. In relation to a claim for a determination of native title made to the Federal Court, the definition is somewhat circular and means “the native title claim group mentioned in relation to the application in the table in subsection 61(1)”.

21    The well settled principles concerning authorisation and the proper construction of s 61(1) were helpfully summarised by Bromberg J in Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308; 369 ALR 1 at [181]-[182] (emphasis in original):

181.    … First, the accepted construction of s 61(1) is that “the authorisation contemplated is not of the persons who claim to be the native title holders, but is rather that of the actual holders of native title”: Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643 at [913] (Finn J); and see Wongatha at [72], [1188]-[1189] and [1216] (Lindgren J); and Reid v State of South Australia [2007] FCA 1479 at [28] (Finn J).

182.    Second and relatedly, a native title determination application does not comply with s 61(1) unless “all” of the native title holders have authorised the application. As Jagot J said in Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638 at [34]:

Prevailing orthodoxy is that a mere part or sub-set of the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed cannot authorise the making of a native title claim because they cannot, by definition, comprise all such persons (for example, Risk v National Native Title Tribunal [2000] FCA 1589 at [29]-[30] and [60] and at [15]-[22] and the cases cited in those paragraphs).

See further Brown v State of South Australia [2009] FCA 206 at [19]-[20] (Besanko J) and the authorities there cited. The observations of Besanko J in Brown have been extensively cited in the authorities including: Laing v State of South Australia (No 2) [2012] FCA 980 (Mansfield J), Rita Augustine v State of Western Australia [2013] FCA 338 (Gilmour J), Collins on behalf of the Wongkumara People v Harris on behalf of the Palpamudramudra Yandrawandra People [2016] FCA 527 (Jagot J) and Velickovic v State of Western Australia [2012] FCA 782 at [32] (McKerracher J).

22    It is desirable to say something more about Besanko J’s decision in Brown v State of South Australia [2009] FCA 206, to which Bromberg J referred. Brown contains a useful discussion of the test to be applied under s 84C(1) of the NT Act. In addition, it contains a helpful summary of relevant legal principles applying to authorisation, particularly at [19]-[21]:

19    A native title determination application does not comply with s 61 of the NTA if it is clearly established that it is not made by a native title claim group. A native title claim group is a group consisting of all the persons who, according to their traditional laws and customs, had the common or group rights or interests comprising the particular native title claimed. These propositions follow from the provisions of ss 61(1) and (4), 251B and 253 of the NTA and have been stated in the cases: Risk v National Native Title Tribunal [2000] FCA 1589 at [60]-[61] per O’Loughlin J; Tilmouth v Northern Territory of Australia (2001) 109 FCR 240 (“Tilmouth”) at 241-242 [4] per O’Loughlin J; Landers v State of South Australia (2003) 128 FCR 495 (“Landers”) at 504 [33] per Mansfield J; Dieri People v State of South Australia (2003) 127 FCR 364 (“Dieri People”) at 377-378 [55]-[56] per Mansfield J; McKenzie at 223 [41] per Finn J; Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 (“Hillig”) at [60] per Bennett J; Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 9) (2007) 238 ALR 1 at 230-232 [1206]-[1217] per Lindgren J; Reid v State of South Australia [2007] FCA 1479 (“Reid”) at [27] per Finn J; Kite v State of South Australia [2007] FCA 1662 (“Kite”) at [21]-[22] per Finn J.

20    The propositions have been applied most commonly in circumstances where it is clear that the claimant group is a sub-group or sub-set or part of a native title claim group. Cases such as Tilmouth, Landers, Dieri People, McKenzie and Reid are all cases in which it was clear that the claim group was not a native title claim group. The cases also make it clear that caution needs to be exercised before concluding on a strike-out application that a claim group is a sub-group, sub-set or part of a native title claim group: Colbung v The State of Western Australia [2003] FCA 774 at [23]-[26] per Finn J; McKenzie at 223 [41] per Finn J; Hillig at [60] per Bennett J; Reid at [28] per Finn J; and Kite at [22] per Finn J. For example, it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group may itself constitute a native title claim group: Hillig at [60] per Bennett J (see also the obiter observations of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [41]; Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) [3.130].

21    It is clear from the terms of s 61(1) of the NTA that the applicant to a native title determination application must be authorised by all the persons comprising the native title claim group. Section 251B of the NTA provides for the manner in which such an authorisation is to be given…

23    In Brown at [24], Besanko J observed that the issue of authorisation may make it “necessary to consider the notice given of the meeting in order to determine if all members of the claim group were given a reasonable opportunity to participate in the decision-making process”. His Honour referred to the following observations of French J in Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [45] where, in the context of an application under s 66B of the NT Act, French J said:

In relation to the present motions I regret to say that the evidence and the processes adopted were not adequate to meet the conditions necessary for an order under s 66B. For each of the applications there is a defined native title claim group which is set out earlier in these reasons. The connection between those who attended the various meetings referred to and the respective native title claim groups was not established either in respect of notification nor, more importantly, in respect of attendance. The native title claim groups are defined in each case by reference to apical ancestors and biological descendants of those persons and persons adopted by them. The advertisements and notices did not refer to the relevant native title claim groups except by use of the generic title of the applications in question. The membership of the native title claim group by those who attended each meeting was not demonstrated. Rather it was reported as an asserted self-identification. Mrs Morich made some statements from the bar table doubting the representativeness of those who attended at the Southern Noongar meeting. Her statements might be right or wrong. They were not evidence. But my inability to make any judgment about them illustrates the inadequacy of the evidence as it presently stands for the purposes of a s 66B application. And even if it be accepted that each of the members who attended each of the meetings was a member of the relevant native title claim group, it is not established that they were in any sense representative of the various components of the native title claim group concerned.

(c) Abuse of process principles

64    The principles relating to abuse of process in the context of native title proceedings are set out in cases such as Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177; 273 FCR 350 and Lawson on behalf of the Badimaya Barna Guda People v State of Western Australia [2020] FCA 104. It is convenient to set out the summary of some of those principles by White J in Fortescue at [560]:

The public interest considerations underlying the power of courts to stay or dismiss proceedings for abuse of process include the necessity of maintaining confidence in, and respect for, the authority of the Courts: Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [69], cited in Dale v State of Western Australia [2011] FCAFC 46; (2011) 191 FCR 521 at [112]. The prospect that inconsistent judgments may bring the administration of justice into disrepute among right-thinking people is a recognised category of abuse of process: Walton v Gardiner at 393.

65    The primary issues in determining whether there is an abuse of process is whether the use of the Court’s procedures would be unjustifiably oppressive to a party or bring the administration of justice into disrepute.

66    In TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2016] FCA 553, Rares J said at [133] that, in determining whether a proceeding should be dismissed for abuse of process, the Court is required to balance a variety of considerations. One such consideration is the entitlement of a person to bring a claim. Other considerations include the fairness to both the moving party on the new application and to other parties in the proceeding or affected proceedings. Yet another consideration is the need to maintain public confidence in the administration of justice which, in the circumstances here, means maintaining public confidence in the operation of the NT Act, which includes important provisions for negotiation and mediation processes, which are significant features of the statutory regime.

67    It is apt to set out what Mortimer J said in Lawson at [131]-[133]:

131    One particular consideration important in the context of the Native Title Act, is that litigation under that Act engages public interest as well as private interests: see Fortescue at [549]. The public interest is especially prominent here because of the length of time and the resources devoted by all parties, including the State of Western Australia on behalf of the entire community of Western Australia, to a negotiated outcome and to bringing finality to native title claims in this region. That is an important consideration to be weighed in the balance.

132    However, it must also be recognised that the power to dismiss a proceeding as an abuse of process should be exercised sparingly: see Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 6) [2004] FCA 1699 at [68]-[69] (French J). That is at least in part for the very reason outlined by Dixon J in Cox: such a dismissal deprives a party of what is otherwise an entitlement to commence and maintain a proceeding, and to have that party’s allegations considered and determined.

133    Unreasonable delay in bringing a claim (or applying to be joined to a native title claim) is capable of constituting an abuse of process: see, for example, Stock (on behalf of the Nyiyaparli People) v Western Australia (No 4) [2018] FCA 1370 at [45]. However, the delay must mean that the proceeding has the characteristics to which Jagot J and I referred in Fortescue and that I have set out above.

68    Recently, in Widjabul Wia-Bal v Attorney-General of New South Wales [2020] FCAFC 34; 274 FCR 577 at [40], the Full Court (Reeves, Jagot and Mortimer JJ) made the following relevant observations in the context of a claim of abuse of process in the context of native title:

The touchstones of an abuse of process are use of the court’s procedures in a way which would be unjustifiably oppressive or bring the administration of justice into disrepute: Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 at [25]. As the High Court explained in UBS AG v Tyne [2018] HCA 45; (2018) 360 ALR 184 at [1]:

The varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute.

69    Each case necessarily turns on its own facts and the weighing exercise will necessarily reflect different considerations in different cases, a point which is vividly illustrated by Murphy J’s recent decision in Bates on behalf of the Malyangapa Part B Claim Group v Attorney-General of New South Wales [2021] FCA 1198. His Honour rejected a claim of abuse of process where there were overlapping native title claims. Briefly, in Bates, the Malyangapa People belatedly lodged a s 61 application for determination of native title in relation to a claim area which overlapped with the claim area in the rival Wongkumara native title determination application, which had been filed three years earlier, in 2018. Although his Honour accepted that the Malyangapa Part B application was filed very late, and that the Wongkumara applicant would suffer prejudice if it was permitted to remain on foot, he rejected the claim of abuse of process. At [105], Murphy J observed that the native title jurisdiction:

… is bedevilled with delay in the resolution of native title determination applications, in part because of late claims by competing claim groups, some of which are only brought when an earlier application is approaching resolution. Such practices have a tendency to bring the administration of justice into disrepute and must be deprecated. …

His Honour added, however, that the other side of the coin required consideration to be given to the notion that the Malyangapa People should not be prevented from bringing any bona fide claim for native title and that the nature of a finding of native title “indicates that a cautious approach is appropriate before summarily dismissing or striking out a claim without determining it on its merits” (also at [105]). A matter which weighed heavily with Murphy J in Bates in rejecting the abuse of process claim was his Honour’s recognition at [106] that both parties had put on extensive lay and expert evidence aimed at establishing that each had native title rights and interests in the overlapping claim area. Justice Murphy considered that it was inappropriate to seek to resolve the disputed lay and expert evidence in an interlocutory, as opposed to a final, hearing.

70    Justice Murphy also explained at [107] ff why he regarded some of the matters raised by the Wongkumara People in support of their claim of abuse of process as being “exaggerated or exist irrespective of the Malyangapa claim”. His Honour was not satisfied that the evidence made good the contention by the Wongkumara People that the Malyangapa People were “experienced native title litigators who had made a tactical choice not to pursue a claim in NSW until the Barkandji-Malyangapa claim had been resolved”. His Honour found that the evidence did not demonstrate that the Malyangapa People had unreasonably delayed the filing of their overlapping native title application. He contrasted that with the facts in Yindjibarndi, where Rares J dismissed an overlapping native title claim as an abuse of process where there was no acceptable explanation for the delay in that case and where extensive evidence had already been adduced in the overlapping proceeding. That was different to the position in Bates, where no evidence had been taken and the Malyangapa applicant was committed to complying with the existing trial timetable in the Wongkumara claim.

71    Murphy J also explained at [110](c) why the position in Bates was distinguishable from that in Lawson:

(c)    in Lawson, Mortimer J dismissed an overlapping native title determination application filed approximately 2 weeks prior to the listed date for a consent determination. Her Honour considered the overlapping claim unjustifiably oppressive and that it would bring the administration of justice into disrepute in circumstances where it would effectively undo the consent determination (which had required 4 years of negotiations and cost $9.7 million) and would require a complex and lengthy trial in relation to the overlap, and a further $61,000 committed to the consent determination hearing would be thrown away. Here, the Malyangapa Part B application was filed after negotiations for a consent determination had failed and the Court had set down the proceeding for a hearing of the lay evidence in relation to connection commencing on 2 May 2022, with the expert evidence to be heard later that year. In the present case the separate question arising from the Malyangapa application will be determined at the same time as the hearing of the balance of the Wongkumara application.

(d) Applying the relevant principles here

(i) Joinder

72    Plainly, the Nangaanya-ku applicant should be joined as a respondent in the Yarla-Gu Bunna Nangatjara claim, simply because in circumstances where they have on foot an overlapping native title claim (which has been registered and which is poised to be the subject of a consent determination), the Nangaanya-ku applicant has interests which may be affected by a determination of native title in the Yarla-Gu Bunna Nangatjara claim.

(ii) Summary dismissal for want of authorisation

73    For the following reasons, I consider that the Yarla-Gu Bunna Nangatjara application should be summarily dismissed for non-compliance with s 61 of the NT Act and/or stuck out under s 84C(1) of the NT Act.

74    The evidence presently before the Court leaves distinctly unclear whether the Yarla-Gu Bunna Nangatjara claim was authorised in accordance with ss 251B(a) or (b) of the NT Act. Attachment R to Schedule R to the Form 1 includes the Minutes of Elders Authorisation Meeting dated 16 July 2021. Item 5 in the Minutes deals with “Authorisation of a Native Title Process” and records that:

The people agreed to go with Section 251B (a): under traditional laws and customs to adopt as the process of the Claim Authorisation.

75    Conflicting information concerning that statement then appears in the four s 62 affidavits annexed to the Form 1. The four affidavits are relevantly identical. Paragraphs 5(e)-(i) of Ms Harkin’s affidavit suggests reliance upon s 251B(b) of the NT Act. In stark contrast, paragraph 5(k) of her affidavit refers to the Yarla-Gu Bunna Nangatjara claim being authorised pursuant to the mandatory process under s 251B(a) of the NT Act (see also the inconsistencies in [7](e)-(i) and (k) of Ms Harkin’s affidavit affirmed on 27 October 2021).

76    In summary, the inconsistencies in the Yarla-Gu Bunna Nangatjara applicant’s evidence are as follows:

(a)    Both the Certificate of Authorisation (Attachment R to Schedule R to the Form 1) and the Minutes state that the Yarla-Gu Bunna Nangatjara claim is authorised under s 251B(a).

(b)    The s 62 affidavits of Ms Harkin, Ms Evans, Mr Wells and Ms Edwards annexed to the Form 1 depose that as there is no process of decision-making under the traditional laws and customs of the Yarla-Gu Bunna Nangatjara native title claim group which must be complied with, the Yarla-Gu Bunna Nangatjara claim was authorised pursuant to an agreed and adopted method of authorisation (i.e. under s 251B(b)). Yet, those affidavits also depose that the authorisation of the Yarla-Gu Bunna Nangatjara claim was pursuant to a mandatory process as required by s 251B(a).

(c)    The affidavit of Ms Harkin affirmed on 27 October 2021 contains similar inconsistencies to those described in (b) above. Ms Harkin deposes in [5](i) to a decision-making process in accordance with traditional laws and customs being used, despite [5](e) clearly stating that no such process of decision-making was required and therefore that a decision-making process was “agreed to and adopted” at claim group meetings (at [5](f)).

77    The Yarla-Gu Bunna Nangatjara claim suffers from the same inconsistencies and evidentiary difficulties, insofar as authorisation is concerned, as the former Nanatadjarra claim (see Harkin (No 2) at [26]-[27]). It is uncertain whether the native title determination application has been authorised in accordance with either ss 251B(a) or (b) of the NT Act. Where the evidence does not clearly establish that a traditional decision making process of authorisation was used or that the alternative process of authorisation was available, it is open to the Court to conclude that the application has not been authorised in accordance with s 251B of the NT Act (see Evans v Native Title Registrar [2004] FCA 1070 at [53]-[54] per Nicholson J and Dieri People v State of South Australia [2003] FCA 187; 127 FCR 364 at [57] per Mansfield J). That is the case here. The applicant was unable to explain the inconsistencies during the course of the oral hearing, other than to say, quite understandably, that none of the persons constituting the applicant were lawyers and they had sought to follow Guidelines published by the National Native Title Tribunal.

78    As in Harkin (No 2), the Yarla-Gu Bunna Nangatjara claim also suffers from the same ‘subgroup problem’ as the former Nanatadjarra claim (see Harkin (No 2) at [25](b) and [38]-[40]). The Consent Determination Minute filed by the parties in the Nangaanya-ku claim, records that the Nangaanya-ku applicant and the State are satisfied, based on the extensive and thorough research conducted by an independent anthropologist (Dr Lynes), that the ancestors referred to in paragraph 2 of Sch 2 of the Consent Determination Minute accurately capture the relevant native title holders. None of those ancestors has been included in the Yarla-Gu Bunna Nangatjara claim group description.

79    The Yarla-Gu Bunna Nangatjara claim should be summarily dismissed and/or struck out on the ground of non-compliance with s 61 of the NT Act for want of authorisation. I see no basis to apply s 84D of the NT Act to overcome this significant deficiency, particularly when regard is had to the background history of the matter.

(iii) Abuse of process

80    For the following reasons, I have also concluded that the Yarla-Gu Bunna Nangatjara claim should be summarily dismissed for abuse of process.

81    First, given that the Yarla-Gu Bunna Nangatjara claim is, on its face, inconsistent with the Nangaanya-ku claim, a litigated process to resolve the overlap would seem to be inevitable. Given the long history of the Nangaanya-ku claim and all the work that has been put into it such as to bring it to the brink of resolution by a consent determination, it would be unjustifiably oppressive to the Nangaanya-ku applicant and to the claim group to essentially place its claim right back at the start of a contested application process in this Court. It would also be unjustifiably oppressive to the State. The State has satisfied itself that there is a credible and cogent basis for a positive native title determination to be made in respect of the Nangaanya-ku claim. The State has undertaken a thorough assessment of a large body of ethnographic, anthropological and other material which was provided to it by the Nangaanya-ku applicant. This is a matter which attracts considerable weight, given that, in accordance with well settled authority, it may be presumed that the State has examined the connection materials carefully and independently (see Clarrie Smith v Western Australia [2000] FCA 1249; 104 FCR 49 at [38] per Madgwick J).

82    The continuation of the Yarla-Gu Bunna Nangatjara claim would undermine the acceptance by all parties that the Nangaanya-ku claimants have native title rights and interests in the land and waters that they have claimed and dislodge the several years of work which resulted in the parties recently filing the Consent Determination Minute. Progression of the Nangaanya-ku Part B area would also inevitably be disrupted.

83    Secondly, I find that the use of the Court’s procedures by the Yarla-Gu Bunna Nangatjara applicant to bring and maintain the Yarla-Gu Bunna Nangatjara claim at such a late stage, particularly in circumstances where it was known (at least by Ms Evans) that the proposed Nangaanya-ku consent determination had been authorised by the Nangaanya-ku claim group, brings the administration of justice into disrepute (see Lawson at [145] per Mortimer J). I consider that the belated failing of the rival claim was driven principally by strategic considerations and is designed to disrupt the imminent finalisation of the Nangaanya-ku claim.

84    There is a need to maintain public confidence in the operation of the NT Act and, in particular, with regard to the negotiation and mediation processes which are essential features of the legislative scheme. The State, on behalf of the entire community of Western Australia, has dedicated appropriate resources to negotiate an outcome and bring finality to native title in the claim area. This has included consideration of the various overlapping claims and other interlocutory applications pursued by those people who now comprise the Yarla-Gu Bunna Nangatjara applicant, all of which the State concluded were unmeritorious. Ultimately, the State is satisfied that the more inclusive Nangaanya-ku claim was capable of being supported by the connection evidence available to the State.

Conclusion

85    For these reasons, the Yarla-Gu Bunna Nangatjara application for native title determination filed on 8 September 2021 will summarily be dismissed and/or struck out.

86    The Nangaanya-ku applicant sought an opportunity to be heard on costs. Accordingly, if the parties are unable to agree on costs, within 21 days hereof each is to file brief submissions not exceeding three pages in length which explains their respective positions on costs. The issue of costs will then be heard and determined on the papers and without a further oral hearing.

Associate:

Dated:    10 November 2021