FEDERAL COURT OF AUSTRALIA

Weetra on behalf of the Nauo People v State of South Australia [2022] FCA 828

ORDERS

THE COURT ORDERS THAT:

1.    Brandon McNamara Snr and Emmalene Richards cease to be parties to the proceeding.

2.    Within seven days of the date of these orders, the applicant serve a copy of these orders and the accompanying reasons on Mr McNamara by email and by post at the addresses recorded on the Court file.

3.    Mr McNamara has liberty to apply to set aside the order removing him as a respondent within 14 days of the service of these orders and accompanying reasons on him, with any such application to be supported by evidence explaining Mr McNamara’s absence from the hearing.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    In this proceeding, the applicant seeks a determination of native title under s 61(1) of the Native Title Act 1993 (Cth) (Native Title Act). The proceeding is known as the Nauo #2 native title claim (Nauo 2).

2    The land and waters the subject of the Nauo 2 proceeding is depicted in the map which forms an annexure to these reasons. The map is an extract of a map prepared by the Native Title Tribunal on 26 April 2022, reflecting the Nauo 2 proceeding as at 31 March 2022. As can be seen from that map, the Nauo 2 claim covers an area which can broadly be described as the southern-most tip of the Eyre Peninsula in South Australia. Relevantly to the present application, it abuts the southern tip of the Barngarla claim area, in respect of which a native title determination was made by the Court on 23 June 2016, as discussed below.

3    By an interlocutory application dated 28 February 2022 (removal application), the applicant sought an order under s 84(8) of the Native Title Act that Barry Croft, Brandon McNamara Snr and Emmalene (or Emma) Richards cease to be respondents to the proceeding on the basis that they never had interests that may be affected by a determination in the proceeding. The application was supported by an affidavit affirmed by Andrew Beckworth on 28 February 2022. Mr Beckworth is the Principal Legal Officer of South Australian Native Title Services Ltd, the solicitors for the applicant. The applicant also filed written submissions on 9 May 2022.

4    On 17 March 2022, Barry Croft filed a form notifying the Court that he wished to cease to be a party to the proceeding. On 23 March 2022, the Court made orders granting leave to Mr Croft to cease to be a party. Accordingly, the removal application concerns Mr McNamara and Ms Richards.

5    Each of Mr Croft, Mr McNamara and Ms Richards became respondents to the proceeding by filing notices with the Court on 18 December 2017 pursuant to s 84(3)(b) of the Native Title Act. As discussed in more detail below, by those forms Mr Croft, Mr McNamara and Ms Richards stated that they are local Aboriginal people whose native title interests in the area would be affected by the determination sought in Nauo 2. At the time of filing the notices, Mr Croft, Mr McNamara and Ms Richards were not legally represented. On 11 October 2018, the Court was notified that Nick Llewellyn-Jones of Norman Waterhouse Lawyers had been appointed to represent each of them. On 15 September 2021, the Court was notified that Ms Richards had appointed Deanna Cartledge of Holding Redlich to represent her.

6    Following the filing of the removal application, Mr McNamara and Ms Richards ceased to be legally represented (and, as noted above, Mr Croft ceased to be a party). On 18 March 2022, Mr McNamara’s previous solicitors notified the Court that Mr McNamara had terminated their retainer and had not appointed another lawyer and provided the Court with mail and email addresses for service of Mr McNamara. On 6 April 2022, Ms Richards’ solicitor notified the Court that she had ceased to act for Ms Richards and provided the Court with mail and email addresses for service of Ms Richards. Since those dates, neither Mr McNamara nor Ms Richards has been legally represented on the removal application.

7    Following the filing of the removal application, the Court convened two case management hearings (on 23 March 2022 and 8 April 2022) that were conducted via Microsoft Teams, in accordance with the usual practice of the Court. Notice of the hearings, together with links to join the hearing via Teams, were sent to Mr McNamara and Ms Richards by email at the addresses for service notified to the Court. Ms Richards attended both of the hearings (the first through her solicitor), but Mr McNamara did not attend either.

8    For the purposes of determining the removal application, on 23 March 2022 the Court made orders requiring Mr McNamara and Ms Richards to file and serve a document which described, with particulars, the interests that each claims in the land and waters the subject of the Nauo 2 claim and the nature of the evidence they would seek to adduce in the proceeding in support of those interests. Neither Mr McNamara nor Ms Richards complied with that order. On 8 April 2022 the Court made a further order requiring Mr McNamara and Ms Richards to file any written submissions on which they wished to rely in opposition to the removal application. Neither Mr McNamara nor Ms Richards filed any submissions.

9    The removal application was heard on 7 July 2022 in Adelaide. Ms Richards sought and was granted leave to attend the hearing by videoconference technology. Mr McNamara did not attend the hearing. All efforts by the Court to contact Mr McNamara have been unsuccessful. On 21 June 2022, the Court sent an email to the parties notifying them that the matter was listed for hearing on 7 July 2022 and indicating that the parties should respond to confirm their appearance and with any requests for remote (video) appearance by Friday 24 June 2022. When no reply was received from Mr McNamara, a follow up email was sent to him on 28 June 2022, and on 1 July 2022. A Legal Case Manager tried to call Mr McNamara on the mobile telephone number for him recorded on the Court file, however an automated message indicated that the number was not currently receiving calls. The Court sent a further email to Mr McNamara on 6 July 2022 attaching Microsoft Teams details for the hearing.

10    The State of South Australia indicated that it will abide by the decision of the Court in relation to the removal application. To assist the Court, the State filed submissions dated 24 June 2022. The Commonwealth indicated that it neither consents to, nor opposes, the application for removal. The Commonwealth did not file submissions in relation to the application.

11    The removal application was heard concurrently with interlocutory applications brought by Mr Jason Croft and Ms Jody Croft seeking orders that they be joined as respondents to this proceeding and to other proceedings in which native title claims have been made on behalf of the Nauo and Wirangu peoples. The joinder applications are the subject of a separate judgment published at the same time as these reasons: Wilson on behalf of the Wirangu People v South Australia [2022] FCA 829.

12    For the reasons that follow, I am satisfied that it is appropriate to make orders that Mr McNamara and Ms Richards cease to be respondents to the proceeding.

13    In light of Mr McNamara’s absence from the hearing, I will make orders requiring the applicant to serve a copy of these orders and reasons on Mr McNamara by email and by post at the addresses recorded on the Court file to maximise the likelihood of this decision coming to his attention. I will also grant Mr McNamara liberty to apply to set aside the order removing him as a respondent within 14 days of the service of the orders and reasons on him. Any such application would need to be supported by evidence explaining Mr McNamara’s absence from the hearing.

Statutory framework governing joinder and removal of parties

14    Section 84 of the Native Title Act governs the joinder and removal of parties to a proceeding in relation to applications to which s 61 applies. The Nauo 2 proceeding is a native title determination application to which s 61 applies.

15    Subsections 84(2) to (4) of the Native Title Act provide for the joinder of parties to a proceeding at, or shortly after, the commencement of a proceeding. Subsection (2) stipulates that the applicant is a party to the proceeding. Subsection (4) stipulates that, if any of the area covered by the application is within the jurisdictional limits of a State or Territory, the State Minister or Territory Minister for the State or Territory is a party to the proceedings unless the Minister gives the Federal Court written notice (within a designated period) that the Minister does not want to be a party. Subsection (3) enables third parties, who have or claim interests of a specified kind in respect of the area covered by the application, to be joined as a party to the proceeding by filing a notice in the Federal Court within the period specified in the notice given in respect of the application under s 66. Relevantly, subs (3) applies to any person who claims to hold native title in relation to land or waters in the area covered by the application or whose interest, in relation to land or waters, may be affected by a determination in the proceedings. The phrase “interest, in relation to land or waters” as used in subs (3) is defined in s 253 as follows:

(a)    a legal or equitable estate or interest in the land or waters; or

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

(i)    the land or waters; or

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

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

16    Under s 84(8), the Court has power to order that a person, other than the applicant, cease to be a party to the proceedings. Section 84(9) stipulates that the Court is to consider making an order under subs (8) in respect of a person if (among other things) the Court is satisfied that the person never had, or no longer has, interests that may be affected by a determination in the proceedings. However, the power in s 84(8) is not confined to the circumstances specified in s 84(9): Butterworth on behalf of Wiri Core Country Claim v State of Queensland (2010) 184 FCR 397 at [39]; Starkey v South Australia (2011) 193 FCR 450 at [42]-[43].

17    The word “interests” as used in s 84(9) is not the subject of the statutory definition of “interest, in relation to land or waters” in s 253 of the Native Title Act: see, in the related context of s 84(5), Chippendale on behalf of Wuthathi People No 2 v Queensland [2012] FCA 310 at [14] per Greenwood J, citing Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1.

18    In TR (Decd) on behalf of Kariyarra - Pipingarra People v State of Western Australia [2016] FCA 1158, North ACJ made the following observations with respect to the operation of s 84(8) (at [33]-[35], [38], cited with approval by Griffiths J in Lewis on behalf of the Warrabinga-Wiradjuri People #7 v Attorney General of New South Wales (No 2) [2021] FCA 1269 at [10]):

[33]    The power to order that a person cease to be a party to the proceedings is a broad discretionary power. It must, however, be exercised judicially. In the end, the touchstone for the exercise of the power is a decision about the interests of justice.

[34]     In the exercise of the power a significant factor is the nature of the interest claimed by the party to be removed.

[35]    The interest must be capable of clear definition, not be indirect or lacking in substance. It must be of such a nature that it may be affected in a demonstrable way by determination of native title: Byron Environment Centre Inc v Arakwal People [1997] FCA 797 ; 78 FCR 1 per Black CJ at 7G, Lockhart J at 19C and Merkel J at 42D-E.

…

[38]    On the other hand, it is well accepted that a person claiming a competing native title interest which may be affected by the making of a determination in the application has an interest which justifies that person becoming or remaining a respondent to that application: Munn at [8]; Davis-Hurst (On behalf of the Traditional Owners of Saltwater) v Minister for Land and Water Conservation (NSW) [2003] FCA 541, 198 ALR 315 at [27] (Davis-Hurst); Kokatha Native Title Claim v South Australia [2005] FCA 836, 143 FCR 544 at [24]; Worimi Local Aboriginal Land Council v Minister for Lands (NSW) [2007] FCA 1357, 164 FCR 181 at [16]-[17] (Worimi); Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [18]-[19]; and Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [18]. Such a person is entitled to seek to protect their interest from erosion, dilution, or discount. …

19    In Gomeroi People v Attorney General of New South Wales [2013] FCA 81 (Gomeroi), Jagot J emphasised that a person must have more than a remote or insubstantial interest to hold the status of a party to the proceeding. In that case, her Honour observed in respect of an Aboriginal respondent who had applied to become a party to the proceeding and claimed, without further substantiation, that he held native title in relation to land or waters in the area covered by the application (at [24]):

… I am left in the position where I can do nothing more than speculate as to whether there is any interest and if there is any interest, whether it be characterised as a native title right or interest or otherwise, whether it would actually be affected by the determination in these proceedings. It seems to me, in these circumstances … it is only those persons whose interests may be classified as genuinely, demonstrably and not indirectly affected by a determination of native title who ought to have the status of parties to the proceedings. The reason for this is obvious, given that as a party to proceedings there are vested therein, by the provisions of the Native Title Act, various rights and indeed obligations which could have the effect of substantially interfering with the timely and efficient resolution of such matters.

20    Other relevant considerations were referred to by McKerracher J in CD (deceased) v State of Western Australia [2021] FCA 734 (at [18]) (by way of summary of the considerations identified by Gilmour J in Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 5) [2014] FCA 650 at [10]):

(a)    the legislative purpose behind the Native Title Act which is to encourage parties to resolve native title claims by conciliation and negotiation;

(b)    the provisions of s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and the overarching purpose which mandates the just determination of proceedings before the Court in the most inexpensive and efficient way possible;

(c)    the proximity of the parties to reaching a negotiated, non-litigated settlement and consent determination; and

(d)    the additional time, money and other resources (including scarce judicial resources) which will need to be expended before a final outcome can be reached if removal of the party is not ordered.

Background

History of the Barngarla and Nauo 2 claims

21    On 4 April 1996, a native title application was filed on behalf of the Barngarla people in respect of an extensive area of lands and waters covering the Eyre Peninsula and extending north from the Eyre Peninsula. Over time, the Barngarla claim area was reduced. The boundaries of the Barngarla claim area as determined by the Court on 23 June 2016 are shown in the map annexed to these reasons. It can be seen from that map that in the lower part of the Eyre Peninsula, the Barngarla determination area abuts the area of the Nauo claim (SAD 6021 of 1998, now electronic file SAD 65 of 2022) to the west (Nauo 1) and the area of the Nauo 2 claim to the south of Port Lincoln. When originally filed, the Barngarla claim covered the areas that are now the subject of the Nauo 1 and 2 claims.

22    The Nauo 1 claim was lodged with the National Native Title Tribunal under s 61(1) of the Native Title Act on 17 November 1997 and entered on the Register of Native Title Claims. It initially covered the southern-most part of the Eyre Peninsula, below Port Lincoln, which is now the subject of the Nauo 2 claim. As originally filed, it wholly overlapped the Barngarla claim area.

23    In a compromise reached between the Barngarla and Nauo claimants in 1999, the boundaries of the Barngarla and Nauo 1 claims were adjusted so that there was no overlap between the Nauo and Barngarla claim areas (see Croft on behalf of the Barngarla Native Title Claim Group v South Australia [2015] FCA 9; 325 ALR 213 (Croft) at [10]-[12] and McNamara (Barngarla Southern Eyre Peninsula Native Title Claim) v State of South Australia [2020] FCA 1875 (McNamara) at [19]). The Barngarla claim area was re-drawn so as not to include the area that is now the subject of the Nauo 1 claim and the Nauo 1 claim area was re-drawn so as not to include the area that subsequently became the Barngarla determination area or the area that is now the subject of the Nauo 2 claim.

24    The hearing of the Barngarla claim took place over the course of a number of days in November and December 2012, and July, August and September 2013. On 22 January 2015, Mansfield J held that the Barngarla people generally hold native title – subject to questions of extinguishment – over the Barngarla claim area, save for the area south of Port Lincoln (being the area that is now the subject of the Nauo 2 claim): Croft. In so finding, his Honour agreed with and endorsed the assessment of Mr McCaul, an expert linguist called by the State, whose evidence was that “…Nauo people held core rights in country just to the south and … across to the west of Port Lincoln …” (at [702]). Justice Mansfield ultimately concluded that while he did not need to make a positive finding about whether the Nauo people “occupied” the land to the south of Port Lincoln, he was not satisfied on the evidence that this was Barngarla country (Croft at [702]). On 23 June 2016, Mansfield J made a determination of native title in accordance with his earlier findings: Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724 (Croft No 2). In accordance with the decision in Croft, the Barngarla claim in respect of the area south of Port Lincoln (being the area that is now the subject of the Nauo 2 claim) was dismissed (see para 7 of the Barngarla native title determination made on 23 June 2016).

25    Following the decision in Croft, on 21 June 2016 the Nauo people restored their claim to the area south of Port Lincoln by commencing the present proceeding.

The Barngarla native title holders

26    Paragraph 14 of the Barngarla native title determination specifies that the native title holders in respect of the determination area are those Barngarla people:

(a)    who are related by means of the principle of descent to the following Barngarla apical ancestors:

(i)    the siblings Percy Richards and Susie Richards;

(ii)    Maudie Blade who is the mother of Phyllis Croft;

(iii)    George Glennie and Mary Glennie;

(iv)    the siblings Bob Eyles and Harry Croft;

(v)    Jack Stuart;

(vi)    Arthur Davis (also known as King Arthur) and his sons, Andrew Davis, Jack Davis, Stanley Davis and Percy Davis; and

(b)    who have a connection with the Determination Area in accordance with the traditional laws and customs of the Barngarla people; and

(c)    who identify as a Barngarla person and who are accepted by the Barngarla people as a Barngarla person.

27    During the hearing of this application, and in the absence of any evidence or submissions having been filed by Ms Richards, I asked Ms Richards about her connection to the Barngarla native title holders. Ms Richards said that Howard Richards, who gave evidence in the Barngarla proceeding, is Ms Richards’ uncle, being the first cousin of her father, Fred Richards. Elizabeth Richards (Jnr), who also gave evidence in the Barngarla proceeding, is Ms Richards’ aunty, being the younger sister of Ms Richards’ father (and Howard Richards’ first cousin). Howard Richards’ evidence is summarised at [228] to [229] of Croft. He is the son of Elva Richards who was in turn the daughter of Fred and Elizabeth Richards Snr. Elizabeth Richards Snr was a Barngarla woman, whose father was Bob Eyles and mother was Susie Richards (Croft at [228]). The evidence of Elizabeth Richards Jnr is summarised at [232] of Croft. Her mother was Vera Richards Snr, another daughter of Fred and Elizabeth Richards Snr. It is apparent from the evidence in Croft that both Howard Richards and Elizabeth Richards Jnr were descended from Fred and Elizabeth Richards Snr, and through Elizabeth Richards Snr, to the Barngarla apical ancestors Susie Richards and Bob Eyles: Croft at [231]. On the basis of this information, I understand that Ms Richards is related by descent to at least two of the apical ancestors listed in the Croft No 2 determination: Susie Richards and Bob Eyles were Ms Richards’ great-great-grandparents.

28    Mr McNamara gave evidence in the Croft proceeding. That evidence is summarised at [230] of Croft, as follows:

Brandon McNamara Snr was born on 1 December 1945 at Umeewarra Mission near Port Augusta. His parents were Victor McNamara and Jean McNamara (nee Glennie). He was one of twelve children. Brandon identifies his father as “Barngarla-Wirangu”, that is, Barngarla on one side and Wirangu on the other. Brandon’s mother Jean was the daughter of Susie Richards (a Barngarla woman) and Arthur Glennie (a Wirangu man). Brandon spent his childhood living at Mt Ive Station (just outside the claim area, in the Gawler Ranges) and then at Minnipa (just inside the western part of the claim area). Later in life, he has lived in Whyalla and in Fregon (in the Anangu Pitjantjatjara-Yankunytjatjara Lands (APY Lands)). Brandon McNamara now lives in the town of Port Lincoln.

29    Mr McNamara’s grandmother on his mother’s side, Susie Richards, is one of the Barngarla apical ancestors listed in the Croft No 2 determination, extracted above. Four close relatives of Mr McNamara also gave evidence in the Croft proceeding: two of his sisters, his son, and his nephew. I note that one of Mr McNamara’s sisters, Edith Burgoyne, gave evidence that she identifies as a Barngarla woman (at [236]). Mr McNamara’s son, Brandon McNamara Jnr, gave evidence that “[h]is mother was a Wirangu woman, but he identifies as Barngarla, through his father” (at [238]).

Other Nauo/Wirangu proceedings

30    The map annexed to these reasons identifies a number of native title claims that have been made on behalf of the Nauo and Wirangu peoples, which are as follows (listed in chronological order):

(a)    Wirangu No 2 Native Title Claim (Part B) (SAD 64 of 2022, and previously SAD 6019 of 1998), brought on behalf of the Wirangu people (Wirangu 2B);

(b)    Nauo 1;

(c)    Nauo 2 (this proceeding);

(d)    Nauo #3 Native Title Claim (SAD 63 of 2018), brought on behalf of the Nauo people (Nauo 3);

(e)    Wirangu No 2 Non-claimant Application (SAD 123 of 2019), brought by the State of South Australia (Wirangu 2 NCA);

(f)    Wirangu No 3 Native Title Claim (Part B) (SAD 228 of 2019), brought on behalf of the Wirangu people (Wirangu 3B);

(g)    Wirangu Sea Claim #2 Native Title Claim (SAD 84 of 2021), brought on behalf of the Wirangu people (Wirangu Sea Claim); and

(h)    Nauo #4 Native Title Claim (SAD 185 of 2021), brought on behalf of the Nauo people (Nauo 4),

(together, the Nauo and Wirangu proceedings).

31    The principal Nauo and Wirangu proceedings were set down for trial to commence in mid-2021. The Nauo 2 claim was not set down for trial by reason of an overlapping claim that had been filed on behalf of the Barngarla people, discussed below. The overlapping claim was subsequently dismissed by the Court.

32    Shortly before the commencement of the scheduled trial, the parties to the principal Nauo and Wirangu proceedings informed the Court that they had reached an agreement in principle to resolve the proceedings by consent. As a consequence, the trial was adjourned. Since that time, the parties have been engaged in discussions to finalise the form of a proposed consent determination. The parties have informed the Court that the greater part of the Nauo and Wirangu proceedings (Wirangu 2B, Wirangu 3B, Wirangu Sea Claim 2B, Wirangu NCA, Nauo 1, Nauo 3 and Nauo 4) are currently progressing toward a consent determination. The terms of two separate draft consent determinations have been agreed in principle by the Wirangu and Nauo applicants, the State of South Australia and the Commonwealth following mediation facilitated by a Registrar of the Court. The current timetable for those proceedings is reflected in orders made by the Registrar on 20 April 2022. As part of the resolution of these proceedings, the State and the applicants propose to resolve a number of matters by way of Indigenous Land Use Agreements. The parties have made substantial progress in negotiating the terms of those agreements. Based on information provided by the parties and submissions filed on this application and the related joinder application (being heard concurrently with this application), the Court considers it likely that an application for a consent determination in the above proceedings will be made in the next two to three months.

Progression of the Nauo 2 claim

33    Nauo 2 is being progressed on a different timetable to the other proceedings. The State and the Commonwealth have informed the Court that neither of them has any current instructions to progress that matter toward a consent determination. The State is currently considering anthropological material provided by the applicant. Pursuant to orders made by a Registrar of the Court, the State was scheduled to advise the Court and the parties of the outcome of that assessment by 29 July 2022, however counsel for the State indicated during the hearing of this application that it would likely seek an extension to that order such that it would instead confirm its position by the end of August. Nevertheless, the application brought by the Nauo 2 applicant, seeking the removal of Mr McNamara and Ms Richards as respondents to the proceeding, has been brought to facilitate the progression of the Nauo 2 proceeding toward a consent determination.

34    As stated above, Nauo 2 was filed with the Court on 21 June 2016. The claim was entered on the Register of Native Title Claims on 6 July 2017. It has remained registered since that date. The Nauo 2 claim was notified by the Native Title Registrar with a notification date of 20 September 2017. Persons with a sufficient interest in the proceeding could join as respondents by filing a Form 5, pursuant to s 84(3) of the Native Title Act, by 19 December 2017.

35    As stated in the introduction, Mr McNamara, Ms Richards and Mr Croft each notified the Court on 18 December 2017 that they wanted to be a party to Nauo 2, and as a result became parties to the proceeding pursuant to s 84(3) of the Native Title Act.

36    In the section of the Form 5 that requests “[d]etails of interest claimed”, Ms Richards wrote:

I give notice under paragraph 84(2) of the Act that I want to be a party in relation to the application under section 61 of the Act.

The basis on which I want to become a party is that I am a local Aboriginal woman whose ancestors have held traditional native title interests in the area which would be affected by a claim filed by Nauo or a determination in favour of the Nauo.

37    In their respective Forms 5, Mr Croft and Mr McNamara gave the same description (save that the word “woman” was changed to “man”).

38    On 19 February 2020, a native title determination application was filed on behalf of the Barngarla people in respect of the Nauo 2 claim area (the Barngarla SEP claim). Each of Mr McNamara, Ms Richards and Mr Croft were among those listed as representing the Barngarla applicant in the Barngarla SEP claim. By interlocutory application filed on 14 April 2020, the State sought orders that the Barngarla SEP claim be dismissed on the basis that it constituted an attempt to re-litigate matters that had been finally determined in Croft. On 24 December 2020, Charlesworth J summarily dismissed the Barngarla SEP claim, finding that it constituted an abuse of the processes of the Court. Her Honour concluded that Mansfield J’s order in Croft No 2, dismissing that part of the Barngarla claim that is now the subject of the Nauo 2 claim, had the effect of finally determining the rights of the Barngarla people in respect of that area (McNamara at [57]). Accordingly her Honour considered that the proceeding was an attempt to re-litigate issues that had been finally determined and gave rise to an issue estoppel (McNamara at [57]-[58], [68]).

39    In order to facilitate negotiation between the applicant, the State, Mr Croft, Mr McNamara and Ms Richards in respect of the Nauo 2 claim, on 26 November 2021 orders were made for Mr Croft, Mr McNamara and Ms Richards to advise the applicant and the State:

(a)    whether they opposed the application in Nauo 2, and if so upon what grounds; and

(b)    the specific nature of the Aboriginal heritage interests they would seek to have addressed in any proposed consent determination of these proceedings and how these interests might be addressed.

40    On 31 January 2022, Mr Croft, Mr McNamara and Ms Richards provided notices purporting to address those matters. However, the notices did so to a limited extent only. The notices were signed on behalf of Mr Croft and Mr McNamara by their then solicitor, Nick Llewellyn-Jones of Norman Waterhouse Lawyers, and on behalf of Ms Richards by her then solicitors, Holding Redlich.

41    Ms Richards’ notice relevantly stated as follows:

3.    Ms Richards opposes the application in Nauo 2 on the ground that the level of evidentiary material provided to her in support of the application for a determination of native title under s61(1) of the Native Title Act 1993 does not on the balance of probabilities establish:

a.    the existence of an identifiable community with traditional connection to the claim area entitled to enjoy native title rights and interest.

b.     their descent from the original inhabitants at sovereignty.

c.     their possession and maintenance of native title rights and interests under traditional laws and customs, that are recognised by the common law of Australia as rights and interests.

…

7.     Ms Richards has not been provided with any:

a.    expert evidence supporting the applicant' s assertions with regard to the existence of native title.

b.     lay evidence supporting the application including who the persons are holding the common or group rights comprising native title and the extent of such rights and interests.

8.     Ms Richards is unaware of the State's standard in the context of consent determinations as to what is either an acceptable or requisite level of acknowledgement of traditional laws and observance of traditional customs, or the level of evidence to identify a traditional community descended from the original inhabitants. Ms Richards is therefore unaware of the basis upon which the State will reach a conclusion about the adequacy of the evidence relied upon.

9.     Ms Richards seeks to be provided with all the applicant's connection evidence that will be assessed by the State; and reserves her right to independently assess this evidence to form an opinion about the cogency of the evidence that the applicant relies upon.

10.     For the purposes of paragraph b of Order 2 made 26 November 2021, Ms Richards relies upon the response to the State provided by Barry Croft and Brandon McNamara Snr.

42    Mr Croft and Mr McNamara filed two joint notices. The first purportedly addressed paragraph (a) of the order made on 26 November 2021 and read as follows:

Mr Croft and Mr McNamara advise the Applicant, the State and the Court:

•    that they oppose the application in Nauo #2 upon the same grounds set out in the notice provided by Emmalene Richards;

•    that they may additionally oppose the application in Nauo #2 on the basis of past agreements and/or conduct of the Nauo #2 claim group; this will be assessed further following receipt of the material requested in paragraph [9] the notice provided by Emmalene Richards (which Mr Croft and Mr McNamara also hereby request) .

43    The second notice purportedly addressed paragraph (b) of the order made on 26 November 2021 and read as follows:

Mr Croft and Mr McNamara advise the Applicant and the State:

•    that the specific nature of the Aboriginal heritage interests they would seek to have addressed in any consent determination in Nauo #2 is as follows:

o    Archaeological artefacts, including fish traps, weapons, and evidence of campsites;

o     Ethnographic sites related to stories including the Seven Sisters story and a Whale story;

o     Burial sites;

o     Flora and fauna of particular spiritual significance, including plovers;

o     The specific localities of the above heritage include Wanna, Whalers Way, Memory Cove and Sleaford.

•    that the Barngarla Determination Aboriginal Corporation RNTBC intends to engage an anthropologist shortly to catalogue the above and any other Barngarla heritage in the area of the Nauo #2 claim and to produce a report;

•    that, if the Nauo #2 claim may proceed to a consent determination, the manner in which Mr Croft and Mr McNamara would seek to have the above Aboriginal heritage interests addressed would be guided by the anthropologist's report mentioned above.

44    On 28 February 2022, the applicant filed the present interlocutory application seeking an order that Mr Croft, Mr McNamara and Ms Richards cease to be parties to the proceeding. As noted earlier, on 17 March 2022 Mr Croft gave notice that he wished to cease being a party to the proceeding and the Court made orders giving such leave on 23 March 2022.

45    On 23 March 2022, I also made orders requiring each of Mr McNamara and Ms Richards to file and serve by 6 April 2022 a document describing, with particulars, the interests that each claims in the land and waters the subject of the Nauo 2 application and the nature of the evidence they would seek to adduce in support of those interests. Neither Mr McNamara nor Ms Richards complied with that order. In further orders made on 8 April 2022, I listed the removal application for hearing on Thursday 7 July 2022 and relevantly made orders that each of Mr McNamara and Ms Richards file written submissions limited to ten pages on which they would rely in opposition to the removal application on or before 10 June 2022. Neither Mr McNamara nor Ms Richards filed submissions in advance of the hearing.

The applicant’s submissions

46    The applicant submitted that the removal application should be allowed for the following reasons.

47    First, both Mr McNamara and Ms Richards are Barngarla people who have been determined to hold native title rights in the area north of Nauo 2. It has been determined that Barngarla people do not hold native title in the area subject to the Nauo 2 claim. Further, both respondents were members of the claim group in the Barngarla SEP claim that was struck out as an abuse of process for asserting that Barngarla people hold native title rights in the area subject to the Nauo 2 claim. The applicant submitted that the material that Mr McNamara and Ms Richards have filed in the present proceeding contains no acknowledgement of the legal effect of the Croft decision and subsequent determination, nor of Charlesworth J’s decision in the Barngarla SEP claim. The applicant submitted that Mr McNamara and Ms Richards’ assertions of native title rights and interests in the Nauo 2 claim area are inconsistent with the Court’s findings and cannot be sustained. For this reason, the respondents lack an interest capable of being affected by a determination recognising Nauo native title rights and interests in the claim area.

48    Second, the applicant submitted that any concerns that Mr McNamara and Ms Richards have as persons interested in cultural heritage in the Nauo 2 claim area are protected by the South Australian Aboriginal Heritage Act 1988 (SA).

49    Third, the applicant submitted that Mr McNamara and Ms Richards oppose the claim being brought by the Nauo people and are therefore an impediment to the resolution of the proceeding by way of consent. This is contrary to the interests of justice in circumstances where they do not have an interest in the claim area. The applicant acknowledged that neither the State nor the Commonwealth has yet confirmed that they intend to progress Nauo 2 toward a consent determination. Nevertheless, the applicant submitted that the material that is relied upon in relation to its Nauo 2 claim, and which was been provided to the State and Commonwealth, is of a similar kind as has already been provided to the State and Commonwealth in respect of the other Nauo claims, which are now progressing to consent determinations. The applicant noted that it has engaged the same experts and relied upon the evidence of the same witnesses in respect of the Nauo 2 claim as in respect of its other claims.

Ms Richards’ submissions

50    Ms Richards attended the hearing and made oral submissions opposing her removal as a respondent. Ms Richards said that she was attending the hearing to represent her own interests as well as those of her family and in particular her father, Fred Richards, who is now bed-ridden. The principal contentions advanced by Ms Richards were as follows.

51    First, Ms Richards stated that she had not been in a position to comply with the timeframe for filing submissions in advance of the interlocutory hearing for a number of personal reasons, including the recent illness of her father, and the birth of her grand-daughter. Ms Richards also referred to longer-standing issues involving her family’s previous legal representation and conflicts of interest, which she believed had led to her family being excluded from receiving certain information in relation to the Eyre Peninsula claim areas, and had prejudiced them in earlier actions in respect of their claim to the area south of Port Lincoln, including in the Barngarla SEP proceeding.

52    Second, Ms Richards asserted that she has rights and interests in respect of the Nauo 2 claim area by virtue of her connection to Barngarla, Nauo and Wirangu peoples. Ms Richards stated that her family has always been in the relevant claim area. Ms Richards submitted that while she and her family have been more assertive as Barngarla people, that does not mean that the rest of their history and heritage should be taken away or ignored. Ms Richards said that she was raised being told that she was of Barngarla, Nauo and Wirangu descent. She was told that her family had a Nauo connection from Bob Eyles, whose mother was a Nauo woman, and a Wirangu connection through Ms Richards’ great-grandfather, Fred Richards, a Wirangu man who had married Elizabeth Richards Snr. Ms Richards said that her family had always identified as Barngarla-Nauo, until the advent of native title, when different claims were made on behalf of the Barngarla and Nauo peoples respectively and it became necessary to identify only as Barngarla.

53    Third, Ms Richards stated certain grievances that she holds in respect of how the Nauo and Wirangu claim areas have been made. She expressed her frustration that the Wirangu and Nauo peoples have had access to legal support to help them navigate the native title system, and that they have drawn and re-drawn the boundaries of their claim areas, and initiated new and further claims over other areas in and around the Eyre Peninsula since their original claims were filed. Part of Ms Richards’ frustration was the fact that the Nauo and Wirangu proceedings are now likely to proceed to consent determination, which Ms Richards perceived as unfair since the applicants would not need to prosecute their case at a trial. Ms Richards submitted that it was important for her to be a respondent to Nauo 2 because she and her family have been a part of the native title process for a long time, and they are intimately familiar with the languages, cultures and traditional practices that have subsisted in the claim area since settlement. She said that as a respondent, she would be able to provide that information, whereas if she is removed from the proceeding she would not have the ability to give that information or to identify what is and isn’t true in the Nauo people’s assertion of interests in the claim area.

Consideration

54    There is no evidence before the Court substantiating any interest of Mr McNamara or Ms Richards in the Nauo 2 claim area. The only material before the Court is the following.

55    First, in their respective Forms 5 filed with the Court on 18 December 2017 under s 84(3) of the Native Title Act, each of Mr McNamara and Ms Richards claimed to be a local Aboriginal person “whose ancestors have held traditional native title interests in the area which would be affected by a claim filed by Nauo or a determination in favour of the Nauo”.

56    Second, by their notices dated 31 January 2022 given in purported response to the orders of the Court made on 26 November 2021, each of Mr McNamara and Ms Richards referred to Aboriginal heritage interests in the claim area which they would seek to have protected in any consent determination, being:

(a)    archaeological artefacts, including fish traps, weapons, and evidence of campsites;

(b)    ethnographic sites related to stories including the Seven Sisters story and a Whale story;

(c)    burial sites;

(d)    flora and fauna of particular spiritual significance, including plovers; and

(e)    the specific localities of the above heritage include Wanna, Whalers Way, Memory Cove and Sleaford.

57    It is apparent that the claims made by Mr McNamara and Ms Richards are stated at the highest level of generality. They do not state the source or basis for the alleged interests. The interest claimed in the Forms 5 appears to be a native title interest, but the Aboriginal society holding the claimed traditional native title interests is not identified. Nor are the interests defined in any way. The claimed Aboriginal heritage interests are equally vague, failing to identify the interests, or their basis, with any degree of specificity. Neither respondent took up the opportunity to substantiate, or elaborate upon, their claimed interests in the Nauo 2 claim area by way of evidence or submissions.

58    On the evidence before me, I consider that Ms Richards and Mr McNamara are Barngarla people. In the case of Mr McNamara, this is confirmed by the evidence he gave in the Barngarla proceeding and his participation as a named applicant in the Barngarla SEP claim. In the case of Ms Richards, this was confirmed by her oral submissions during the hearing, in which she confirmed that she is descended from the apical ancestors named in the Croft No 2 determination, and that she was a named applicant in the Barngarla SEP claim. As such, each holds native title rights and interests in the area north of the Nauo 2 claim area by reason of their identity as Barngarla people (as determined by Mansfield J in Croft and Croft 2).

59    I also consider that the claims that have been made by Mr McNamara and Ms Richards in this proceeding, as stated in their respective Forms 5 and the 31 January 2022 notices referred to above, are claims that are made as Barngarla people asserting interests derived from being Barngarla people. As Barngarla people, Mr McNamara and Ms Richards oppose the native title claim made by the Nauo claim group. As a result of the decisions in Croft and McNamara, I consider that Mr McNamara and Ms Richards do not have maintainable native title rights and interests in the Nauo 2 claim area as Barngarla people.

60    There is no other material that has been placed before the Court that would support a claim by either Mr McNamara or Ms Richards to have interests in the Nauo 2 claim area in any capacity other than as Barngarla people. For example, there is no evidence before the Court to suggest that either Ms Richards or Mr McNamara carries a status among the Barngarla people that carries with it custodial responsibilities in respect of sites of significance to the Barngarla people in the Nauo 2 claim area, such that they might be said to have a personal interest in the Nauo 2 proceeding: cf Croft on behalf of Barngarla Native Title Claim Group v State of South Australia (Port Augusta Proceeding) [2020] FCA 888. There is no evidence before me to suggest that the kind of interests to which Mr Croft and Mr McNamara referred in their notices of 31 January 2022 are in fact different to the native title rights and interests in the Port Lincoln area that the Barngarla people unsuccessfully sought to establish in Croft and McNamara.

61    There is no evidence before me to provide any foundation for Ms Richards’ claim, made during the hearing, that she has an interest in the Nauo 2 claim area as a descendant of Nauo (or Wirangu) peoples. I accept that Ms Richards has Nauo and Wirangu forebears, namely her great-great-grandfather Bob Eyles (whose mother was Nauo), and her great-grandfather Fred Richards, who was a Wirangu man. I also accept the possibility, and indeed likelihood, that other forebears were Nauo or Wirangu peoples. However that fact does not lead to a conclusion that Ms Richards is Nauo or Wirangu, or that she holds native title rights and interests in the Nauo 2 claim area as a Nauo person. Beyond the explanation of Ms Richards’ ancestry that she provided at the hearing of this application, there is no evidence before the Court to support a finding that Ms Richards identifies as a Nauo person and acknowledges and observes the traditional laws and customs of the Nauo people by which she has a connection to the claim area. In the more than twenty years that the oldest of the Nauo proceedings have been in progress, no member of the Richards family, including Ms Richards, has ever claimed to be Nauo; nor have they advanced any claim that the Nauo claim groups are defined too narrowly in excluding the Richards family. Further, I do not understand Ms Richards to now be making that submission.

62    To the contrary, it is apparent that Ms Richards’ objective in remaining as a respondent to the proceeding, as expressed in the 31 January 2022 notices referred to above and in her oral submissions at the hearing, is for the purpose of opposing the Nauo people’s claim to the Nauo 2 claim area. The opposition is based on Ms Richards’ belief that the claim area is in fact Barngarla country. Ms Richards’ submissions at the hearing revealed frustration with the judicial decisions that have been made with respect to the Nauo 2 claim area, as well as frustration with aspects of the agreements that were reached between the Nauo and Barngarla claimants over time.

63    The fact that Ms Richards opposes the Nauo 2 claim does not establish that she has an interest that may be affected by a determination in the proceeding.

64    For these reasons, I am satisfied that neither Ms Richards nor Mr McNamara has interests that may be affected by a determination in this proceeding. As Jagot J observed in Gomeroi at [24], the Native Title Act vests a party to the proceedings with significant rights and obligations which have the capacity to substantially interfere with the timely and efficient resolution of the matter – that status should accordingly be afforded only to those whose interests are genuinely and demonstrably affected by a determination of native title. There is no probative evidence before me to suggest the existence of such an interest.

65    I consider that it would be contrary to the interests of justice to allow Mr McNamara and Ms Richards to remain parties to the proceeding in circumstances where they do not have a discernible interest in the claim area and their ongoing involvement in the proceeding is likely to prejudice any potential for Nauo 2 to otherwise proceed to a consent determination. While the State and Commonwealth do not currently have instructions to progress the matter toward a consent determination, I am satisfied that, if Mr McNamara and Ms Richards were to be removed as parties to this proceeding, there is a likelihood that the proceeding would be resolved by way of consent determination, in a similar manner to the other Nauo and Wirangu proceedings. I consider that if Mr McNamara and Ms Richards were permitted to remain respondents to the proceeding, they would likely impede any potential resolution of the proceeding by consent.

66    In the circumstances of this proceeding, it is appropriate that I make orders removing Mr McNamara and Ms Richards as respondents to the proceeding. Such an order will enable the remaining parties to progress discussions concerning a consent determination, together with the other Nauo and Wirangu proceedings. The order is consistent with the objects of the Native Title Act and the overarching purpose of civil litigation in this Court as stated in s 37M of the FCA Act.

Conclusion

67    In conclusion, I am satisfied that it is appropriate to make orders that Mr McNamara and Ms Richards cease to be respondents to the proceeding. As indicated earlier, owing to Mr McNamara’s absence from the hearing, I will make orders requiring the applicant to serve a copy of these orders and reasons on Mr McNamara by email and by post at the addresses recorded on the Court file. I will also grant Mr McNamara liberty to apply to set aside the order removing him as a respondent within 14 days of the service of the orders and reason on him.

Associate:

Dated:    19 July 2022

ANNEXURE A

SCHEDULE OF PARTIES