Federal Court of Australia

Wilson on behalf of the Wirangu People v South Australia [2022] FCA 829

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 7 April 2022, by which Jason Croft and Jody Lee-Anne Croft applied to be joined as parties to the proceedings, be dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 7 April 2022, by which Jason Croft and Jody Lee-Anne Croft applied to be joined as parties to the proceedings, be dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 7 April 2022, by which Jason Croft and Jody Lee-Anne Croft applied to be joined as parties to the proceedings, be dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 7 April 2022, by which Jason Croft and Jody Lee-Anne Croft applied to be joined as parties to the proceedings, be dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 7 April 2022, by which Jason Croft and Jody Lee-Anne Croft applied to be joined as parties to the proceedings, be dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 7 April 2022, by which Jason Croft and Jody Lee-Anne Croft applied to be joined as parties to the proceedings, be dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 7 April 2022, by which Jason Croft and Jody Lee-Anne Croft applied to be joined as parties to the proceedings, be dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 7 April 2022, by which Jason Croft and Jody Lee-Anne Croft applied to be joined as parties to the proceedings, be dismissed.

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    By interlocutory applications dated 7 April 2022 (together, the joinder applications), Mr Jason Croft and Ms Jody Croft, cousins, seek orders that they be joined as respondents to the following proceedings pursuant to s 84(5) of the Native Title Act 1993 (Cth) (Native Title Act):

(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 Native Title Claim (SAD 65 of 2022, and previously SAD 6021 of 1998), brought on behalf of the Nauo people (Nauo 1);

(c)    Nauo #2 Native Title Claim (SAD 188 of 2016), brought on behalf of the Nauo people (Nauo 2);

(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).

2    The land and waters the subject of the Nauo and Wirangu proceedings 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 above proceedings as at 31 March 2022. As can be seen from that map, the land and waters cover an area which can broadly be described as the western side of the Eyre Peninsula in South Australia. I note for completeness that the map shows (in light blue) another claim to the west, being the Mirning Eastern Sea and Land Claim. That claim is no longer current, having been struck out by Justice Charlesworth on 4 November 2021 (see Sparrow v State of South Australia (Mirning Eastern Sea and Land Claim) [2021] FCA 1357). Relevantly, the map also shows the area of a native title determination made in favour of the Barngarla people in 2016 (see Croft on behalf of the Barngarla Native Title Claim Group v South Australia [2015] FCA 9; 325 ALR 213 (Croft) and Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724 (Croft No 2)).

3    Mr Croft and Ms Croft were not legally represented. In support of the joinder applications, they relied on an affidavit affirmed by Mr Croft on 7 April 2022 and an affidavit of Ms Croft sworn on 5 May 2022, and written submissions prepared by Mr Croft and dated 9 May 2022. The Crofts also handed up further written submissions at the hearing and made oral submissions. Neither Mr Croft nor Ms Croft were cross-examined.

4    The joinder applications were opposed by the Wirangu and Nauo applicants, who relied on joint submissions dated 15 June 2022.

5    The State of South Australia indicated that it will abide by the decision of the Court in relation to the joinder applications. To assist the Court, the State filed submissions dated 24 June 2022. Similarly, the Commonwealth indicated that it neither consents to, nor opposes, the joinder applications in the matters to which it is a party (noting that it is not a party to Wirangu 2 NCA, Wirangu 3B and Nauo 4). The Commonwealth filed submissions dated 24 June 2022.

6    The joinder applications were heard concurrently with an interlocutory application brought by the Nauo 2 applicant seeking the removal of two Aboriginal respondents to that proceeding. That removal application is the subject of a separate judgment published at the same time as these reasons: Weetra on behalf of the Nauo People v State of South Australia [2022] FCA 828.

7    It is apparent from the submissions that were advanced by the Crofts during the hearing that both care deeply about their traditional law, customs and culture. I accept that their belief in the contentions that they advanced is sincerely and firmly held. However, for the reasons explained below, I consider that it would be contrary to the interests of justice to grant leave to the Crofts to be joined as respondents to each of the Nauo and Wirangu proceedings. The delay in making the applications is a very significant factor. Granting leave to the Crofts to be joined as respondents at this stage would occasion considerable prejudice to the applicant in each of the proceedings. Having regard to the extent and consequences of the delay in making the joinder applications, the Crofts bear a significant burden to show that their interests in the claim area are such that the interests of justice favour joinder. On the evidence adduced on the applications, I am not persuaded that leave to be joined should be granted. Accordingly, the joinder applications will be dismissed.

Statutory framework governing joinder and removal of parties

8    Section 84 of the Native Title Act governs the joinder of parties to a proceeding in relation to applications to which s 61 applies. Section 61 provides that three principal kinds of applications may be made to the Federal Court: a native title determination application; a revised native title determination application; and an application for compensation. Each of the Nauo and Wirangu proceedings is a native title determination application to which s 61 applies.

9    Subsections 84(2) to (4) 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.

10    Regulation 6 of the Native Title (Federal Court) Regulations 1998 (Cth) (Regulations) provides that a notice under s 84(3) of the Native Title Act “may be in accordance with Form 5”, which form is annexed in the Schedule to the Regulations.

11    The Native Title Act contains procedures for the public notification of native title applications, “to ensure, so far as appropriate, that any person who is properly interested in the potential outcome of a native title determination application is given the opportunity to participate in the conduct of that application”: CG v Western Australia (2016) 240 FCR 466 at [21] per North, Mansfield, Jagot and Mortimer JJ. Once an application under s 61 is filed with the Federal Court, s 63 requires the Court to provide a copy of the application to the Native Title Registrar. In turn, s 66 requires the Native Title Registrar to provide copies of the application to specified persons, including the relevant State or Territory Minister and the representative bodies for the area covered by the application. Section 66(3) requires the Registrar also to give notice of the details of the application to specified bodies to notify the public of the application. The public notification must specify a day as the “notification day” and is also required to include a statement to the effect that a person who wants to be a party in relation to the application must notify the Federal Court, in writing, within the period of three months starting on the notification day.

12    Relevantly for the purposes of the present application, s 84(5) provides a mechanism for persons whose interests may be affected by a native title determination, but who did not notify the Court within the period specified in s 66, to apply to the Court to be joined as a party. Section 84(5) provides as follows:

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.

13    It can be observed that, under s 84(3), a person whose interests may be affected by a determination in a native title proceeding is entitled to become a party to the proceeding if the person gives notice to the Court within three months of the notification of the native title application. However, if a person does not do so and seeks to become a party to the proceeding at a later point in time, s 84(5) requires the person to satisfy the Court that, first, the person’s interests may be affected by a determination in the proceedings and, second, that it is in the interests of justice to join the person as a party to the proceeding.

14    The word “interest”, as used in subs (5), is not the subject of the statutory definition of “interest, in relation to land or waters” in s 253 of the Native Title Act: Chippendale on behalf of Wuthathi People No 2 v Queensland [2012] FCA 310 (Chippendale) at [14] per Greenwood J. In that case, Greenwood J summarised the meaning of the word “interests” as used in subs (5) as follows (at [14]):

The interests asserted by an applicant for joinder need not be proprietary, legal or equitable in nature; must rise above an interest that an ordinary member of the public might hold; must be genuine; must reflect an affect upon the person’s interests beyond a mere emotional, conscientious or intellectual interest; and, must not lack substance: Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1; Woodridge on behalf of the Gomilaroi People v Minister for Land & Water Conservation for New South Wales (2003) 108 FCR 527; Dann (on behalf of the Amangu People) v Western Australia [2006] FCA 1249.

15    It has been accepted by the Court on a number of occasions that a person who claims to hold native title rights and interests in relation to the land or waters the subject of the proceedings may have sufficient interests to justify joinder; it is not necessary for the person to have lodged a claimant application under the Native Title Act: see Munn (for and on behalf of the Gunggari People) v State of Queensland [2002] FCA 486 at [8]; Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 (Kokatha) at [22], [24]-[25]; Worimi Local Aboriginal Land Council v Minister for Lands (NSW) (2007) 164 FCR 181 at [10]-[11], [26]; and Kum Sing on behalf of Mitakoodi People # 5 v State of Queensland (No 2) [2022] FCA 248 (Kum Sing) at [14]. The person may be joined as a respondent party to defensively assert their native title rights and interests in order to protect them from erosion, dilution or discount: Isaacs on behalf of the Turrbal People v Queensland (No 2) [2011] FCA 942 at [18]; Harkin on behalf of Nanatadjarra People v Western Australia [2020] FCA 1015 at [11]; Blackburn v Wagonga Local Aboriginal Land Council (2021) 287 FCR 1 at [54].

16    On an application for joinder, the Court is not required to determine on a final basis whether the applicant has an interest that may be affected by a determination of native title. As Greenwood J explained in Chippendale (at [16]):

In determining whether the applicants for joinder have demonstrated to the satisfaction of the Court, on the facts, that their interests may be affected by a determination in the proceedings, the Court does not embark upon an assessment of contested questions of fact or otherwise seek to determine where the merits ultimately lie. The question is simply whether, having regard to the assertions of fact, the Court can be satisfied that the person’s interests may be affected by a determination of native title in favour of the applicants in the principal proceeding. In that sense the question is an analogue of whether there is a serious question of affectation of the person’s interests, to be determined. There must be some factual foundation asserted in support of the affected interest. …

17    Nevertheless, the Court will consider whether and to what extent the applicant has adduced evidence of facts that are capable of supporting a finding that the applicant has an interest of the kind required by s 84(5), such that a prima facie case is shown: Wakka Wakka People #2 v Queensland [2005] FCA 1578 at [6] per Kiefel J (as her Honour then was). The evidence must rise beyond mere assertion, have some probative quality and be capable of establishing facts from which a finding of a requisite interest could be made: Sumner v South Australia [2014] FCA 534 (Sumner) at [25]-[26] per Mansfield J. In Gomeroi People v Attorney General of New South Wales [2013] FCA 81, Jagot J observed that a person must assert more than a remote or insubstantial interest to hold the status of a party to the proceeding (at [24]). In that case, her Honour observed in respect of an Aboriginal respondent who 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.

18    The power of the Court to order that a party be joined to proceedings is discretionary and requires proper consideration of the individual circumstances of each case: Kokatha at [26] per Mansfield J. The phrase “and it is in the interests of justice to do so” was added to s 84(5) by the Native Title Amendment Act 2007 (Cth) and only applies to proceedings commenced on or after 15 April 2007: Sumner at [11]; Far West Coast Native Title Claim v South Australia (No 2) (2012) 204 FCR 542 at [37]. In Barunga v Western Australia (No 2) [2011] FCA 755 (Barunga) at [163], Gilmour J concluded that the addition of the phrase adds nothing to the matters that the Court must consider in exercising its discretion to join a party under s 84(5).

19    In assessing where the interests of justice lie, regard should be had, among other things, to the objects and purposes of the Native Title Act and the overarching purpose of civil practice and procedure expressed in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) which includes the just determination of disputes efficiently, in a timely manner, and at a cost that is proportionate to the importance and complexity of the matters in dispute: Kum Sing at [17]. A relevant consideration to the interests of justice is whether those seeking to be joined have provided a satisfactory explanation for any delay connected with their application and the prejudice that may be caused to existing parties to the proceedings if they are joined as a party: Barunga at [163] and [219] per Gilmour J; Jacob v State of Western Australia [2014] FCA 1106 at [4] and [51] per McKerracher J; Allen on behalf of the Nyamal People #1 v State of Western Australia [2018] FCA 320 at [56] and [75] per Barker J; Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369 at [23]-[27] per Rangiah J; Foster on behalf of the Gunggari People #4 v State of Queensland [2019] FCA 1300 at [9]-[12] per Reeves J.

20    Under s 84(8), the Court also 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 (amongst 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].

21    The principles applicable to the exercise of the power of removal in s 84(8) are similar to the principles applicable to the exercise of the power of joinder in s 84(5). 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]; 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.

Background

Notification of the Nauo and Wirangu proceedings

22    The oldest of the Wirangu claims, Wirangu 2 (which relevantly includes Wirangu 2B), was lodged with the National Native Title Tribunal under s 61(1) of the Native Title Act on 28 August 1997 and entered on the Register of Native Title Claims. It has remained registered since that date. Wirangu 2 was notified by the Native Title Registrar with a notification date of 7 February 2001. As such, persons with a sufficient interest in the proceeding could have joined as respondents by filing a form with the Court, pursuant to s 84(3) of the Native Title Act, by 7 May 2001.

23    The oldest of the Nauo claims, Nauo 1, 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 has remained registered since that date. The Nauo 1 claim was notified by the Native Title Registrar with a notification date of 7 February 2001. Again, persons with a sufficient interest in the proceeding could have joined as respondents by filing a form with the Court, pursuant to s 84(3) of the Native Title Act, by 7 May 2001.

24    Nauo 2 was filed with the Court on 21 June 2016 and 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. Again, persons with a sufficient interest in the proceeding could have joined as respondents by filing a form with the Court, pursuant to s 84(3) of the Native Title Act, by 19 December 2017.

25    The Wirangu 2, Nauo 1 and Nauo 2 claims cover an area on the western side of the Eyre Peninsula extending from the Streaky Bay region in the north-west to the Port Lincoln National Park in the south-east. The claim area abuts the south-western side 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.

26    The subsequent Wirangu and Nauo claims relate to smaller areas of land within or adjacent to the area covered by the Wirangu 2, Nauo 1 and Nauo 2 claims. The notification periods for those other Wirangu and Nauo claims (other than Nauo 4) were as follows:

(a)    between 22 August 2018 to 21 November 2018 for Nauo 3;

(b)    between 31 July 2019 and 30 October 2019 for Wirangu 2 NCA;

(c)    between 22 April 2020 and 21 July 2020 for Wirangu 3; and

(d)    between 11 August 2021 and 10 November 2021 for the Wirangu Sea Claim.

27    Neither Mr Croft nor Ms Croft sought to be joined as respondents to any of the above Nauo and Wirangu proceedings within the applicable notification periods pursuant to s 84(3) of the Native Title Act.

28    Nauo 4 was filed with the Court on 15 October 2021. It was notified by the Native Title Registrar with a notification date of 4 May 2022. It follows that persons with a sufficient interest in the proceeding could join as respondents by giving notice to the Court pursuant to s 84(3) of the Native Title Act by 3 August 2022. It appears that neither Mr Croft nor Ms Croft has taken that step. Instead, they have filed an application to be joined under s 84(5). It is necessary for the Court to determine the application that has been filed, while recognising that the Crofts may still exercise rights under s 84(3).

29    It should be noted that each of Wirangu 2, Wirangu 3 and the Wirangu Sea Claim overlap the land or waters the subject of Nauo 3. By orders made on 5 April 2018 in Wirangu 2, orders made on 26 November 2011 in Wirangu 3 and orders made on 3 June 2021 in the Wirangu Sea Claim, each of those claims was partitioned into Parts A and B, whereby Part B concerns the area of those claims that overlap Nauo 3. The Crofts have applied to be joined as parties to Wirangu 2 and 3 only in so far as those proceedings concern Part B (ie, Wirangu 2B and Wirangu 3B). Conversely, the Crofts have applied to be joined as parties to the whole of the Wirangu Sea Claim. These reasons concern the applications to the extent made by the Crofts.

Current status of the Nauo and Wirangu proceedings

30    The parties to the Nauo and Wirangu proceedings 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, the Court considers it likely that an application for a consent determination to be made in the above proceedings will be made in the next two to three months.

31    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 Barngarla native title claim and determination

32    On 4 April 1996 (and prior to the filing of the Wirangu 2 and Nauo 1 applications), 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. The named applicant in respect of the original application to the Native Title Tribunal was Henry Croft. Henry Croft, who has since died, was Jason Croft’s father and Jody Croft’s uncle. The history of the Barngarla application, which included negotiation and agreements reached with the Wirangu and Nauo claimants, is relevant to the present application.

33    When first filed, the Barngarla claim covered the whole of the area that is the subject of the present Nauo and Wirangu claims. As recounted by Mansfield J in Croft, when first filed the Barngarla claim area extended to the western coast of the Eyre Peninsula up to Streaky Bay (see Croft at [10]). However, on 7 October 1999 (and following the filing of the Wirangu 2 and Nauo 1 applications), the Barngarla application was amended (Croft at [11]). Relevantly, in the south-west the boundary line was brought in from the western coast of the Eyre Peninsula to the Port Lincoln-Ceduna railway line, removing the claim’s overlap with the Wirangu 2 and Nauo 1 claims (Croft at [12]).

34    The Barngarla claim overlapped a number of other native title claims in the north and the east. The history of the resolution of those overlapping claims is described by Mansfield J in Croft at [14] to [33]. The applicant submitted, and I accept, that the history of the Barngarla claim shows that the Barngarla claimants pursued their rights and interests through their native title application and made deliberate decisions about the boundaries of their traditional land over time.

35    It is relevant to note some further aspects of the resolution of the overlap between the original Barngarla claim and the Wirangu 2 and Nauo 1 claims. Information concerning that resolution is recorded in documents attached to the amended Barngarla native title application that was filed with the Court on 10 April 2013, including the certification dated 10 March 1999 provided by the relevant representative body, the Aboriginal Legal Rights Movement Inc (ALRM). The certification recorded that, at a meeting held in Whyalla on 6 to 9 February 1999, the Barngarla people present had authorised the named applicants (at that time, Henry Croft, Howard Richards, Elliot McNamara, Judy Wingfield, Barry Croft, Lorraine Dare (Davis), Phoebe Wanganeen (Stuart), Harry Eyles, Edith Burgoyne, Leanne Nash, Jody Joseph Miller, Marlene Weetra-Height, Raymond Weetra and Lavinia Heron) to make the amended native title application. Barry Croft was Henry Croft’s brother and is Jason and Jody Croft’s uncle. The certification also recorded the meetings held between the Barngarla claimants and other claimants in overlapping claims and the outcome of the negotiations.

36    In relation to the Wirangu 2 claim, the ALRM certification recorded that the ALRM conducted a meeting for the Wirangu 2 claimant group in Ceduna on 29 and 30 January 1999 at which the Wirangu 2 claimants resolved to substantially withdraw the northern and eastern boundaries of their application. However, at that point there still remained an overlap with the Barngarla claim. At a meeting conducted by the ALRM on 1 March 1999 between the Wirangu 2 and Barngarla claimant groups, it was resolved that the Barngarla boundary would be withdrawn to the extent that it overlapped with the Wirangu 2 claim area. An amended version of the Wirangu 2 application was lodged with the Court on 10 March 1999. The amended application included the re-drawn Wirangu 2 claim area. The related amendment to the Barngarla application removed any overlap between the respective claim areas. The Wirangu 2 applicant filed a further amended application on 3 March 2020. The application noted (in Schedule H) that the earlier overlap with the Barngarla (and Nauo 1) claims had been resolved by agreements entered into by the three groups in 1999 which led to amendment of their respective boundaries to remove the overlaps.

37    In relation to the Nauo 1 claim, the ALRM certification recorded that at bilateral negotiations in Whyalla on 6 to 9 February 1999 between the Nauo 1 and Barngarla claimants, it was resolved that the Barngarla and Nauo applications would be amended to remove the overlap that existed and that both Barngarla and Nauo interests in the previously overlapping area would be recorded in a formal agreement in order to recognise and manage the shared interests and rights to that area.

38    The formal agreement, titled Memorandum of Understanding, was entered into on 13 April 1999 between the named applicants in respect of the Barngarla application (which included Henry and Barry Croft) and the named applicants in respect of the Nauo 1 application. A copy of the Memorandum of Understanding was attached to the amended form of the Barngarla native title claim application filed on 10 April 2013. In the Memorandum of Understanding, the Nauo and Barngarla claimants acknowledged that their claims overlapped and agreed to resolve those overlapping applications by working together on “two joint Native Title claims in the interest of securing Native Title rights and interests for all Barngarla and Nauo people with traditional interests in the southern region of Eyre Peninsula”. The parties agreed that the boundaries of each of the Barngarla and Nauo claims would be redrawn to remove the overlap between the claims. It was further agreed that the re-drawn Nauo claim would henceforth be known as the “Nauo-Barngarla Native Title claim”, and would be a claim for Nauo and Barngarla families. It was agreed that the Nauo 1 application would be amended to reflect the new name of the application and the re-drawn claim area, as well as to add certain Barngarla people to the list of claim applicants and to include in the description of the native title claim group the descendants of Barngarla apical ancestors, including (relevantly) the Croft family. Similarly, it was also agreed that a defined part of the re-drawn Barngarla claim (being that part described in para 6 of the Memorandum) would henceforth be known as the “Barngarla-Nauo Native Title Claim” and would be a claim for Barngarla and Nauo families. It was agreed that the Barngarla application would be amended to reflect the re-drawn claim area, as well as to add certain Nauo people to the list of claim applicants, and to include the descendants of Nauo apical ancestors. The Memorandum also established a Nauo-Barngarla Management Committee, as the entity responsible for the prosecution of the Nauo-Barngarla claim and that part of the Barngarla claim that was to be known as the Barngarla-Nauo claim. It was contemplated by the Memorandum that the Management Committee would seek to be incorporated as a prescribed body corporate under the Native Title Act.

39    Following the execution of the Memorandum of Understanding, the Nauo 1 and Barngarla applications were amended to remove any overlap and the claimants in each application were amended such that the Nauo 1 application included Barngarla people and the Barngarla application included Nauo people.

40    Approximately ten years later, the Memorandum of Understanding was terminated by a Deed of Termination executed on 13 August 2010 by the then named applicants in respect of the Barngarla application (which included Barry Croft but not Henry Croft as he had since died) and the then named applicants in respect of the Nauo 1 application. By the Deed of Termination, the parties agreed that all of the matters provided for in the Memorandum of Understanding would be terminated and would cease to have legal effect. The parties also agreed that the Nauo people who had been included as claimants in the Barngarla application would be removed from that application, and the Barngarla people who had been included as claimants in the Nauo 1 claim would be removed from that application. Relevantly, in respect of the Nauo 1 claim, cl 3.3(b) of the Deed provided as follows:

(b)    Nauo Claim (SAD 6021/98):

(i)    The persons specified as part of the Applicant in the Nauo Claim at clause 3.2 of the MOU, being Henry Croft (Deceased), Elliott McNamara, Barry Croft, Judy Wingfield (Deceased), Lorraine Dare, Phoebe Wanganeen (Deceased), Harry Eyles (Deceased), and Howard Richards will be removed as part of the Applicant in the aforesaid Nauo Claim and the persons listed hereunder shall be the persons constituting the Applicant in the Nauo Claim, being Jody Joseph Miller, Marlene Weetra-Height, name withheld and Lavinia Heron.

(ii)    All of the Barngarla families described in the claim group description contained at clause 3.1 of the MOU shall also be removed from the Nauo Claim.

41    By cl 4.1 of the Deed of Termination, the Barngarla and Nauo claimants (being the parties to the Deed and the then named applicants in the Nauo 1 and Barngarla claims respectively) relevantly gave the following warranties:

Barngarla and Nauo claimants represent and warrant that, at the date of this Deed (to the extent applicable), that:

(a)    all reasonable efforts have been made, including by consulting with South Australian Native Title Services Limited (being the representative body for South Australia appointed pursuant to the NTA for the Agreement Area) to ensure that all persons who hold or may hold native title in relation to land or waters in the Agreement Area have been identified and that all persons so identified have authorised the making of this Deed;

(b)     all reasonable efforts have been made (including by holding Community Meetings of Barngarla and Nauo claimants) to ensure that all Aboriginal persons who have or may have an interest in Aboriginal culture and heritage issues in the Agreement Area have been identified and that all persons so identified have authorised the making of this Deed;

(c)     any authorisations, consents, approvals and licences required or necessary for them to:

(i)     enter into this Deed and the arrangements and transactions the subject of this Deed; and

(ii)     undertake and perform the obligations imposed on them by this Deed, have been obtained;

(d)     this Deed:

(i)     constitutes valid and binding obligations upon Barngarla and Nauo claimants and any person who may from time to time be a member of Barngarla or Nauo claims; and

(ii)     is enforceable in accordance with its terms;

    …

42    The amended application in the Barngarla proceeding also attached copies of six resolutions passed at a meeting of the Barngarla claimants in Port Augusta on 24 July 2010, prior to the execution of the Deed of Termination, by which the Barngarla claimants agreed to and approved the course described above. The second of those resolutions relevantly stated that “[t]he Barngarla people who are attending this community meeting are representative of each of the families that comprise the Barngarla native title claim group (SAD 6011/98)”. The fourth resolution authorised the Barngarla people’s withdrawal from the Nauo 1 claim conditional on the Nauo people’s withdrawal from the Barngarla claim as follows:

Subject to the removal of Jody Miller, Marlene Weetra-Height, Raymond Weetra and Lavinia Heron as persons who are named as part of the Applicant in the Barngarla native title claim (SAD 6011/98), the Barngarla Claimants hereby agree, authorize and Barngarla Claimants direct that they be removed as part of the claim group description in the Nauo native title claim (SAD 6021/98) and that Elliot McNamara, Howard Richards, Edith Burgoyne and Leanne Nash be withdrawn by consent as persons who are named as part of the Applicant in the Nauo native title claim (SAD 6021/98).

43    The above history shows that from the time the Barngarla application was first lodged by Henry Croft in 1996 through to the date of lodgement of the final amended application in 2013, the Barngarla claimants made a series of decisions with respect to native title claims over the land and waters that is the subject of the Wirangu 2 and Nauo 1 claim areas. The outcome of those decisions was that the Barngarla claimants elected not to pursue native title claims in respect of the area the subject of the Wirangu 2 and Nauo 1 claims (effectively the area that is now the subject of all the Wirangu and Nauo claims other than Nauo 2). It would have been open to the Barngarla applicants to maintain a claim in respect of that area, and have that claim determined at the same time as the Wirangu and Nauo claims. However, they elected not to do so. The Wirangu and Nauo claims have progressed without any contrary claim being asserted by the Barngarla people (except in respect of Nauo 2, detailed below).

44    The hearing of the Barngarla claim (in its amended form) took place over the course of a number of days in November and December 2012 and July, August and September 2013. As stated above, one of the named applicants for the Barngarla claim was Barry Croft, an uncle to both Jason and Jody Croft. Barry Croft gave evidence in the proceeding. Jason Croft’s father, Henry Croft, died before the hearing, but made a statement before his death which was received into evidence in the proceeding pursuant to s 64 of the Evidence Act 1995 (Cth).

45    On 22 January 2015, Mansfield J found 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 (which is now the subject of the Nauo 2 claim): Croft at [735]. In respect of the area south of Port Lincoln that is now the subject of the Nauo 2 claim, Mansfield J found that the historical and anthropological evidence was consistent with a finding that the area was Nauo country (at [673]-[684]). 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 …” (Croft at [702]). Ultimately, Mansfield J concluded that he was not satisfied that the area was Barngarla country (at [696] and [702]).

46    On 23 June 2016, Mansfield J made a determination of native title in accordance with his earlier findings: Croft No 2. The boundaries of the Barngarla claim area as determined by the Court are shown in the map annexed to these reasons. In accordance with the decision in Croft, the area south of Port Lincoln (now the subject of the Nauo 2 claim) was not included in the determination area in Croft No 2. In respect of that area, para 7 of the determination made by Mansfield J dismissed the Barngarla claim.

47    In the Barngarla determination, the native title holders are defined by the tripartite as persons descended from named apical ancestors, who have a connection to the determination area and who identify as a Barngarla person and are accepted by the Barngarla people as a Barngarla person. The apical ancestors include Maudie Blade (who is the mother of Phyllis Croft) and the siblings Bob Eyles and Harry Croft. The evidence given by Jason and Jody Croft on these applications was that:

(a)    Harry Croft was the father of Henry and Barry Croft and therefore Jason and Jody Croft’s grandfather;

(b)    Bob Eyles and Harry Croft had the same mother, and Jason Croft also referred to Bob Eyles as his grandfather; and

(c)    Phyllis Croft was married to Harry Croft and is therefore Jason and Jody Croft’s grandmother.

Subsequent Barngarla application in respect of the Nauo 2 claim area

48    As noted above, the Nauo 2 application was filed with the Court on 21 June 2016 in respect of the area south of Port Lincoln. The filing of that claim followed the decision in Croft and was approximately contemporaneous with the making of determination orders in Croft No 2 which dismissed the Barngarla claim in respect of that area.

49    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. On 24 December 2020, upon an interlocutory application filed by the State, Charlesworth J summarily dismissed the proceeding on the basis that it constituted an abuse of the processes of the Court: McNamara (Barngarla Southern Eyre Peninsula Native Title Claim) v State of South Australia [2020] FCA 1875 (McNamara). Her Honour concluded that Mansfield J’s order in Croft No 2, dismissing that part of the Barngarla claim that related to the area south of Port Lincoln, had the effect of finally determining the rights of the Barngarla people in respect of that area. 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 (at [57]-[58], [68]).

Evidence filed on behalf of Jason and Jody Croft

50    Mr Croft filed a number of versions of his affidavit across the various matters. The final and complete version of the affidavit was filed in Nauo 4 and I will refer to that version of the affidavit in these reasons. Mr Croft’s affidavit read as follows:

I Jason Croft … do truly and solemnly affirm that:

1.    My full name is Jason Croft. I was born on 16 March 1976 at Whyalla, in the State of South Australia.

2.    Henry James Croft is my father who was born 17 November 1954.

3.    I am the eldest son of Henry James Croft.

4.    Henry James Croft farther was Harry Mundiah Croft born 1871, Harry Mundiah Croft is my grandfather.

5.    Harry Mundiah Croft’s wife was Phyllis Croft (nee Hart) born 8 August 1921; Phyllis Croft (nee Hart) is my nanna.

6.    Phyllis Croft (nee Hart) is recognised by the elders up North and locally, as the spokesperson and well-regarded Senior women elder in relation to the Moon and Seven Sisters, and other affiliated stories to the area as she was the custodian and traditional owner.

7.    Harry Mundiah Croft is also known and recorded as Harry Crawford.

8.    Harry Mundiah Croft’s brother was Bob Eyles, Bob Eyles is my grandfather.

9.    Harry Mundiah Croft and Bob Eyles had the same mother, she was a Nauo-Barngarla women born in the 1850's, she is my great grandmother.

10.    My father Henry left me a legacy of traditional connection rights and responsibilities to country which is connected to his parents’ rights and traditional connection to country with particular reference to Phyllis Croft who had responsibility to the Seven Sisters dreaming tradition which is what I and my cousin Jody Croft have responsibilities to protect the integrity and continuation of these connections and connectivity to country, that represents traditional inheritance responsibilities as we are common law holders with rights and interests.

11.    I understand that I am providing this affidavit to support my Interlocutory Application to apply to become party to the claim.

12.    The interests I claim in the land and waters in relation to the claim application are

(a)    Ancestorial connection;

(b)    Archaeological artefacts of fish traps, weapons and evidence of campsites;

(c)    Ethnographic sites related to stories including the Moon and Seven Sisters including other affiliated stories and connection through the lands and waters;

(d)    Burial sites;

(e)    Flora and fauna of particular spiritual significance, including plovers and pig face;

(f)    The specific localities of the above heritage include Port Lincoln National Park, Whalers Way, Coffin Bay, Elliston, and surrounding localities including Islands.

13.    I travelled with my dad Henry Croft, nanna Phyllis Croft and the traditional elders around Port Lincoln and was taught about the surrounding Islands as my father was shown by his father, then we moved on to Tulka, then travelled throughout all of the Port Lincoln National Park including Wanna, Sleaford and surrounding area, then up through Mikkira, Fisheries, Whalers Way, Coffin Bay and onwards to Streaky Bay and Haslem.

14.    We had many stops, and we camped along the way whilst I was being taught about Jukurrpa, shown story, sites, and fish traps.

15.    As the Eldest son of Henry Croft, I have authorisation to speak about the areas within the claim and surrounding area, as my dad has passed, who was the traditional owner and custodian.

16.    Dad Henry Croft told me that he was taught by Grandfather Harry Croft and as I am the eldest son, I would need to take care of our country, story, sites and heritage as we are traditional owners and custodians of the area.

17.     I have continued my connection to country within the claim area by traveling with my first cousin Jody Croft and other family members, we travelled to Wanna, Sleaford and out to Whalers Way, and surrounding areas to connect with country and to continue passing knowledge down to the next generation.

I wish for my rights and interest to be heard as an Aboriginal person with ancestorial connection to country in the areas of the claim and surrounding areas.

18.    I didn't apply to join the claim earlier because I did not know how too to become party to the claim for my rights and interests to be heard.

19.    We were not privy to a native title arrangement which negated our interests in the area in question, within the claim and other areas west of Haslem.

20.    I believe we have been denied procedural fairness and natural justice in a complicated set of events, processes, anthropological misappropriation and misrepresentation of cultural traditions and connection to country by others, aided by anomalous procedures that have raised concerns about the probity of the agencies involved. The complexity of these events has, I believe, compromised the integrity and viability of our ongoing traditional and common law rights of inheritance to our cultural traditions, connection to country and our responsibilities handed to us by our parents and grandparents to protect and continue observance, respect, and protection of viable authentic connection to those traditions and country.

21.    I am truly puzzled by all of this and believe by seeking to be a party to these untruthful Native Title claims that our authentic and validated evidence presented in supporting our application will inform the court about the probity of our rights and interests versus the ambiguous probity of the other parties. We hope that appropriate actions are taken by the court to address what we believe are wrongful acts of cultural appropriation and in our view procedural and bureaucratic genocide of our validated cultural connections.

22.    We were not party to a prior Native Title arrangement which negated our interests in the claim area and west to Haslem.

23.    While this application specifically applies to the claim the evidence of our connection to country applies and has implications to the lands to the west as far Haslam as evidenced in the Henry Croft evidence and originals claim boundary as well as the Seven Sister's Story.

24.    I am submitting this application as an individual with specific connective rights and interests to my family's legacy as a common law holder with rights and interests, and to be clear I am not making this on behalf of the Barngarla people.

25.    I had phoned a lot of law firms in Adelaide in attempt to obtain legal support to apply, however all informed me that they could not assist due to them having a conflict of interest regarding the claims.

26.    I travelled to Port Lincoln with the intention to attend the Native Title Authorisation meeting on 2 July 2021 for the Nauo and Wirangu Claims, that was advertised in the Koori Mail, that was to be held at Mallee Park Football Club, Seaton Avenue, Port Lincoln, however the meeting was cancelled due to Covid Restrictions.

27.    I didn't see any other notice in the koori mail or local newspapers giving notice of the rescheduled authorisation meeting so I waited for a notice to be in the paper so I could attend.

28.    I was then told by a relative that the rescheduled authorisation meeting was on the 15 July 2021 however both of us didn't attend because we weren't aware, and no notice was advertised in newspaper.

29.    I was disappointed to hear that a notice wasn't placed in the newspaper otherwise I would have attended the authorisation meeting on the 15 July 2021 for my interests to be heard.

30.    Since I was a child, I have been taught our ancient boundaries, Jukurrpa, country and my connection, this was taught to me by my dad, grandfather, nanna and jilby's.

31.    I am passionate about my country, coast, waters, story, my ancestral connection to the area that is part of the claim, which is why I wish to have my rights interests heard as per my inheritance right, being a common law holder and for my ancestral connection.

51    Mr Croft annexed to his affidavit a document titled “Summary of the evidence of Henry Croft that he seeks to have preserved” and which appears to have been signed by Henry Croft as a statement on 19 December 2004. I infer that this was the evidence received by the Court in the Barngarla native title claim, as referred to above. The statement attaches a significant number of documents, which were also annexed to Mr Croft’s affidavit. Relevantly for the present application, Henry Croft’s statement contains the following evidence:

3.     I was born on 17 November 1954 at Port Augusta Hospital. Accompanying this summary marked as “Annexure l” is a document headed “Descendants of Harry Croft”. It shows details of my extended family including the eight children born to my parents, Harry Croft and Phyllis Hart.

4.     My great-grandfather’s name was Jack Blade. He was Chief of the Barngarla tribe. He died in the early 1900’s. Jack Blade’s daughter was named Maudie Blade. Maudie Blade’s second husband was Richard Hart. When Jack Blade died the role of Chief passed on to Richard Hart. Richard Hart and Maudie Blade were the parents of my mother, Phyllis Hart.

5.     In 1976 I married Angelina Maria Klein. We divorced in 1994. We have two children, Jason Croft, born in 1976 and Damien Croft, born in 1983. …

…

7.     I and all the people referred to in paragraph 4 are Barngarla people. We are all part of the same tribe. My father was a Barngarla lawman. I consider myself to be one of the few members of the Barngarla tribe who can speak on its behalf according to tribal law and custom.

52    The evidence given by Henry Croft in his statement was on the basis that he was a Barngarla person able to speak about the traditional law and customs of the Barngarla people and the connection to country by those laws and customs. Henry Croft stated that the Croft family was the custodian of certain Dreamtime stories as Barngarla people. His statement continued:

33.     My people and I (that is, members of the Barngarla tribe) hold a spiritual connection to the Barngarla country through our belief in the activities of our Dreamtime ancestors. These activities are embodied in Dreamtime stories that took place at particular locations in Barngarla country and they have a continued spiritual presence in the landscape.

34.     Being a custodian of a Dreamtime story means three things in Aboriginal culture. Firstly, there is a spiritual tie between the custodian of the story and a character in the story. Secondly, the custodian has a responsibility to maintain and preserve the site at which the Dreamtime story took place. Finally, the custodian also has a responsibility to pass on knowledge that the custodian possesses in relation to the Dreamtime story to the custodian’s successors.

35.     The Croft family is strongly associated with the Seven Sisters Dreaming (through my mother), the Eagle Dreaming and the Jimming Dreaming. The Jimming Dreaming story lies along the western boundary of the Barngarla country to Streaky Bay. I am the current custodian of the latter two Dreaming stories.

36.     These Dreamtime stories specifically identify us, the Barngarla people, as having a spiritual connection with the Barngarla land. For instance, I was taught that my link was with the Jimming Dreaming and that I am its custodian.

53    Significantly, Henry Croft’s evidence did not suggest that he held native title interests in any capacity other than as a Barngarla person. In particular, Henry Croft did not claim to have any rights or responsibilities in relation to country by reason of descent from a Nauo forebear.

54    Ms Croft’s affidavit read as follows:

I Jody Croft … do truly and solemnly affirm that

1.    My full name is Jody Croft, I was born on 8 January 1973 at Whyalla, in the State of South Australia.

2.    Garry Croft is my father who was born 3rd June 1947. I am Garry Croft’s daughter.

3.    Garry Croft’s farther was Harry Mundiah Croft born 1871, Harry Mundiah Croft is my grandfather.

4.    Harry Mundiah Croft's wife was Phyllis Croft (nee Hart) born 8 August 1921; Phyllis Croft (nee Hart) is my Grandmother.

5.    Harry Mundiah Croft's mother, was a Nauo-Barngarla women born in the 1850's, she is my great grandmother.

6.    Due to having covid and being in isolation I was unable to submit an affidavit at the time Jason Croft lodged his.

7.    I understand that I am providing this affidavit to support the Interlocutory Application submitted that sees me as a second applicant along with my cousin Jason Croft being the first applicant, to apply to become party to this claim.

8.    I was always told that my Grandmother Phyllis Croft (nee Hart) was recognised by the elders of the Pitjantjatjara people and likewise by the surviving Adnyamathanha law men back in the 1980s and beyond, as a well-regarded Senior elder Keeper of the 7 Sisters tradition within Barngarla territory as well as other affiliated stories to the area as she was the senior custodian and traditional owner.

9.    Through my Grandmother I have an Inherited Custodial responsibility to honour, respect and protect and continue traditional pursuits and practices as outlined along the boundary and inner country that relate to the 7 Sisters tradition story and other affiliated stories.

It is held in our belief that our Ancestors of our people have since creation of Earth, maintained their connection to the land and that our people are entitled to enjoy the same benefits and responsibilities as our Ancestors did according to traditional law and customs. This is our custodial inherited responsibility; it is our birth right. Custodians have a specific responsibility to do the right thing by their inheritance as Custodians.

10.    My Grandmother left knowledge with myself and family regarding Bush Medicines and Bush Tucker. Myself and other family continue to take our children out onto country south of Port Lincoln to share knowledge with them about the bush medicine and tucker. I have also with family shared knowledge and stories along the coast to Haslam and I have knowledge of sites relevant to my Grandmothers heritage such as Coffin Bay, Fish Traps, Lake Newland and Cape Bauer.

11.    The interests I claim in the land and waters in relation to the claim application are

(a)    Ancestorial connection;

(b)    Archaeological artefacts of fish traps;

(c)    Ethnographic sites related to stories including the Seven Sisters tradition and other affiliated stories to which my Grandmother was a keeper of;

(d)    Flora and fauna of spiritual significance.

(e)    The specific localities of the above heritage include Port Lincoln National Park, Whalers Way across to Haslam, and surrounding localities.

12.    As the Eldest Granddaughter of Phyllis Croft, I have been held in trust and have authority through her to speak of the areas within the claim and surrounding area in relation to the 7 Sisters tradition story.

I wish for my rights and interest to be heard as an Aboriginal person with inherited ancestorial connection to country in the areas of the claim.

13.    I believe by seeking to be a party to these Native Title claims that our authentic and validated evidence presented to the Federal Court, in supporting our application, will inform the court about our inherited rights and interests.

14.    I was not party to a prior Native Title arrangement which negated our interests in the claim area and west to Haslem.

15.    While this application specifically applies to the claim the evidence of our inherited connection to country applies and has implications to the lands to the west as far as Haslam as evidenced in the Henry Croft evidence and original claim boundary as well as the Seven Sister’s tradition Story.

16.    I am submitting this application as an individual with specific connective rights and interests to my family's inherited legacy as a common law holder with rights and interests, and to be clear I am not making this on behalf of the Barngarla people.

17.    Between Jason Croft, myself and other family we had liaised with a number of law firms in attempt to obtain legal support to apply, however all informed that they could not assist due to conflicts of interest.

18.    I support all evidence and documentation that Jason Croft has submitted to the Federal Court regarding the claim in question.

55    In oral submissions, Mr Croft stated that the Nauo-Barngarla great-grandmother referred to in his and Ms Croft’s submissions was Nora Croft.

The Crofts’ submissions

56    With no disrespect intended (in circumstances where Mr Croft and Ms Croft were not legally represented), the Crofts’ written submissions (those served prior to the hearing and the submissions provided at the hearing) lacked coherence. They comprised a mixture of submission and further evidentiary materials. Frequently, the additional evidentiary materials did not provide probative support for the submissions that were made.

57    Through his written submissions, it appeared that Mr Croft sought to advance the following principal contentions in support of the joinder applications:

(a)    Mr Croft is the descendant of a distinct group of people known as “Nauo-Barngarla” through his grandparents Phyllis and Harry Croft, who raised their family as proud “Nauo-Barngarla and broader Barngarla affiliation people”.

(b)    Mr Croft disputes that people claiming to be Nauo are such or that they would be considered a separate group and disputes that Wirangu territory existed in the area that is the subject of the Wirangu claims.

(c)    Mr Croft asserts a specific “Croft family” connection and relevance to the areas the subject of the Nauo and Wirangu claims.

(d)    The decision of the Barngarla people to withdraw their native claim in respect of the area covered by the Wirangu 2 and Nauo 1 claims was based on “doubtful legal advice” and “pressures were brought to bare (sic) to achieve outcomes that did not reflect the strong historical evidential position of my ancestor’s strong cultural connection to country”.

58    Mr Croft stated that, in pursuing the joinder applications, he is not making a formal native title claim or claiming to represent the Barngarla people as a whole, but to “honour, respect and protect the common law residual rights of inheritance of my Custodial responsibility of my Ancestors heritage legacy”.

59    Mr Croft submitted that the recognition by the Court of the Wirangu and Nauo claims would have the effect of impeding or compromising the exercise by the Croft family of the following rights (as described by Mr Croft):

(a)    inheritance and probate rights;

(b)    intestate rights and residual rights;

(c)    the right to be recognised as relevant traditional owners under applicable sections of the Aboriginal Heritage Act 1988 (SA) in respect of the application areas;

(d)    the right to be compensated for loss or damage of heritage or land within the application areas;

(e)    the right to exercise residual rights of traditional use provisions under the Crown Lands Act and Pastoral Act in all areas within traditional Croft family territory within the application areas;

(f)    the right to enter into agreements with relevant Government agencies regarding management of relevant land and sea areas within the Croft family territory within the application areas; and

(g)    the right to enter into heritage and or other agreements with any developer where these developments impact on Croft family heritage lands and water within the application areas.

60    It is convenient to record here that, in their affidavit evidence and written submissions, the Crofts claimed to have responsibility for a number of traditional stories and culturally significant sites within the application areas including:

(a)    within the overlapping Wirangu 2B and Nauo 3 claim areas, stories connected to Mount Wedge and Lake Newland and a personal connection to the Elliston massacre;

(b)    within the Nauo 1 claim area, stories connected to Lake Hamilton - Cummins Monument Lookout, Lake Malata and Coffin Bay; and

(c)    within the Nauo 2 claim area, stories connected to Cape Catastrophe, Whalers Way, Tulka, Wanna, Sleaford and Mikkira.

61    I note for completeness that the Crofts also claimed to have responsibility for a number of traditional stories and culturally significant sites within the Wirangu 2A application area (including Streaky Bay and Haslem), but no joinder application was filed in respect of the Wirangu 2A application.

62    In addition to the written submissions filed in advance of the hearing, the Crofts handed up further written submissions at the beginning of the hearing. No objection was made to this document being provided to the Court. Ms Croft read selected paragraphs from the further written submissions during the hearing, and Mr Croft also made further oral submissions. I have had regard to the entirety of the document. The further submissions (both written and oral) were broadly consistent with the submissions filed by Mr Croft in advance of the hearing, however it is relevant to note the following further matters raised by those submissions.

63    First, the Crofts stated their concerns in respect of the original decisions of the Barngarla people to withdraw their native title claim in respect of the areas covered by the Wirangu 2 and Nauo 1 claims. Mr Croft emphasised that he and Ms Croft had not been privy to those agreements at the time they were entered into.

64    Second, in respect of their delay in applying to be joined to the proceedings, the Crofts stated that they had assumed that the State and Commonwealth would oppose the Wirangu and Nauo claims, and that the Nauo and Wirangu people would have to prove their native title claims at trial, as the Barngarla people had had to prove their claims. The Crofts said that they had decided to join the proceedings when they heard that the State and Commonwealth would not oppose the applications and the Nauo and Wirangu claims would be progressing toward consent determinations.

65    Third, the Crofts sought to provide further details regarding the nature of the interests that they would seek to assert as respondents. As with Mr Croft’s initial written submissions, these submissions lacked clarity in many respects. However, taking the submissions as a whole, it is tolerably clear that the Crofts seek to be joined as parties to assert native title rights and interests as Barngarla people. I note in particular that:

(a)    The Crofts’ further written submissions asserted “common law rights” in the claim areas, which, in context, I understand to be a claim of native title rights and interests in those areas.

(b)    When asked for further explanation in respect of his description of his family as Nauo-Barngarla, Mr Croft explained that he sees Nauo as a “subgroup” of Barngarla, thus confirming that he seeks to assert his interest as a Barngarla person.

66    The Crofts also made a new submission at the hearing that the Nauo claim group is defined too narrowly and should be broadened to include the Crofts’ forebears, Harry Croft and Phyllis Croft. I consider that this further submission only serves to reinforce the impression that the Crofts seek to be joined to the proceedings to assert their interests as Barngarla people.

The applicants’ submissions

67    The applicants submitted that the application should be dismissed on the basis that the Crofts either do not have an interest (or a sufficient interest) that would be affected by a determination in the proceedings or, if they do have an interest through a forebear who was Nauo, that interest is properly represented by the applicant authorised by members of the Nauo native title claim group. Further, the applicants submitted that the joinder of the Crofts as respondents is not in the interests of justice.

68    In respect of the area the subject of the Wirangu claims, the applicants submitted that the claims are ready for determination by consent of all parties and are being delayed only by the joinder applications. The applicants submitted that the Crofts have not demonstrated that they have an interest in the Wirangu claim areas: they do not assert that they are Wirangu people and the evidence annexed to Mr Croft’s affidavit does not demonstrate that through their Barngarla or Barngarla-Nauo forebears they have an interest in the Wirangu claim areas. The applicants further submitted that, to the extent that the Crofts have concerns about the preservation and protection of Aboriginal cultural heritage in the areas subject to the Wirangu claims, such matters fall within the provisions and protections afforded by the Aboriginal Heritage Act 1988 (SA) (Aboriginal Heritage Act) and are not displaced by the recognition of Wirangu native title.

69    In respect of the area the subject of the Nauo claims, the applicants again submitted that the claims are ready for determination by consent of all parties and are being delayed only by the joinder applications. The applicants submitted that, in so far as the Crofts rely on their native title rights and interests as Barngarla people, the extent of the native title rights and interests of the Barngarla people has been determined, and it does not include any of the areas subject to the Nauo (or Wirangu) claims. In that regard, the applicants relied on the decision of Mansfield J in Croft and the decision of Charlesworth J in McNamara. In relation to Nauo 4, for which the notification period is yet to expire, the applicants submitted that an order should be made under s 84(8) of the Native Title Act that they cease to be parties to the proceeding.

70    The applicants further submitted that, in so far as the Crofts assert an interest in the Nauo claim area as Nauo people, those interests will not be adversely affected by a native title determination recognising that Nauo people hold native title rights and interests in the Nauo claim areas.

71    In respect of the interests of justice, the applicants submitted that the Wirangu and Nauo claims have been on foot for more than 20 years with numerous opportunities for the Crofts to apply to become a party. No explanation has been provided for their failure to respond on any of the prior seven occasions the claims have been notified. While Mr Croft deposed that he did not know how to apply to become a party to the claims, and could not obtain legal assistance, Mr Croft’s father, Henry Croft, was an active participant in the Barngarla proceedings. The applicants submitted that they will suffer prejudice should the applications be granted by reason of further delay to the Court making a determination of native title. For these reasons, the applicants submitted it is not in the interests of justice to join the Crofts as respondents in these proceedings.

The State’s submissions

72    As noted earlier, the State took no position on the joinder applications, but provided submissions for the assistance of the Court. The Court is grateful for that assistance.

73    The State expressed its agreement with the submission of the applicant that, to the extent that the Crofts hold heritage interests in the Wirangu or Nauo claim areas, those heritage interests are protected by the Aboriginal Heritage Act and those protections are not displaced by a determination of native title.

74    The State disagreed, however, with the applicants’ submissions concerning the effect of the Croft and McNamara decisions. The State submitted (and I accept) that, in Croft, Mansfield J rejected the claim made by the Barngarla people in respect of the area south of Port Lincoln, which is now the subject of the Nauo 2 claim, but his Honour was not required to address, and made no findings in relation to, any other area covered by the Wirangu and Nauo claims. The same position applies to the decision of Charlesworth J in McNamara. Accordingly, neither Croft nor McNamara can be regarded as a previous decision with respect to the Wirangu and Nauo claims beyond the Nauo 2 claim area. At the hearing, the applicant accepted that that submission was correct.

75    The State also disagreed with the applicants’ submissions that, to the extent that the Crofts claim interests in the Nauo claim areas as Nauo people, their interests will be protected and recognised by the native title determination sought by the Nauo people. The State observed that it is not apparent from the description of the native title claim group in the Nauo claims that the Crofts would be included within the claim group. I also accept that submission.

The Commonwealth’s submissions

76    The Commonwealth also took no position on the joinder applications and its submissions were confined to responding to certain matters stated in the applicants’ submissions. The matters raised in the Commonwealth’s submissions were to the same effect as those raised by the State and do not need to be repeated.

Consideration

77    In my view, there are numerous difficulties with the Crofts’ joinder applications.

78    The starting point is the delay in making the applications. As outlined earlier, the legislative scheme in s 84 provides a mechanism by which native title claims are notified and persons with an interest in the claim area are able to be joined as parties by filing a notice with the Court. That mechanism facilitates the just determination of claims in a timely manner. While applications to be joined are able to be made at a later date, the Court may only grant the application if satisfied it is in the interests of justice to do so.

79    In the present case, the delay in making the applications is extreme. The principal claims, Wirangu 2 and Nauo 1, were each notified by the Native Title Registrar with a notification date of 7 February 2001, more than 20 years ago. The other substantive claim (in terms of claim area), Nauo 2, was notified by the Native Title Registrar with a notification date of 20 September 2017, more than four years before the filing of the joinder applications.

80    The prejudice to the applicants by the delay is substantial. The parties have indicated that all of the claims, save for Nauo 2, are likely to come before the Court for consent determinations in the very near future. The claims have been in progress for a very long time. The fact that they have now progressed to the stage of consent determinations is undoubtedly the result of hard work by all the parties, acting in accordance with the objectives of the Native Title Act. If the Crofts had been joined as parties at an earlier stage, they would have been able to participate in those negotiations. Their joinder at this very late stage has the real potential of derailing the hard work done by the parties and potentially requiring further negotiations towards a consent determination or, in a worst case, a contested trial of the claims.

81    Mr Croft’s explanation for the delay in making the joinder applications is set out in paras 18 to 22 of his affidavit, where he states that:

(a)    he did not apply to join the claims earlier because he did not know how to become a party;

(b)    he was not privy to a “native title arrangement” which negated “our” (I infer the Crofts or the Barngarla people more generally) interests in the area in question; and

(c)    he believes that “we” (I infer the Crofts or the Barngarla people more generally) have been denied procedural fairness and natural justice in a complicated set of events, anthropological misappropriation and misrepresentation of cultural traditions and connection to country by others, aided by “anomalous procedures that have raised concerns about the probity of the agencies involved”.

82    I do not accept that any of those reasons provide a satisfactory explanation, and I consider the reasons disingenuous having regard to the following matters.

83    Mr Croft’s father, Henry Croft, and uncle, Barry Croft, were named applicants in the Barngarla application and were closely involved in that claim, which originally covered the areas that are the subject of the Wirangu 2 and Nauo 1 claims. In 1999, after the Wirangu 2 and Nauo 1 claims were filed, the Barngarla claimants withdrew their claim in respect of the area the subject of the Wirangu 2 claim. In respect of the Nauo 1 claim area, the Barngarla people also agreed to re-draw the Barngarla claim area so that it did not cover the area the subject of the Nauo 1 claim. This was originally on the condition that the Nauo 1 claim would be re-named the Nauo-Barngarla claim and would be amended to include Barngarla as well as Nauo claimants and to expand the claim group to include descendants of Barngarla apical ancestors (with a reciprocal arrangement in respect of the Barngarla application). That agreement, recorded in the 1999 Memorandum of Understanding between the Nauo and Barngarla claimants, was terminated by the Deed of Termination signed by representatives of both parties in 2010. That Deed reflected a resolution by those with decision-making authority for the Barngarla people (including, relevantly, Barry Croft) to withdraw the Barngarla people’s assertion of interests in the Nauo 1 claim area and to remove the Nauo claimants’ interests from the Barngarla native title application.

84    While Mr Croft would have been a much younger man in 1999 and the following years, his family was closely involved in the Barngarla claim and the decision to withdraw the claim in respect of the Wirangu 2 and Nauo 1 claim areas. In those circumstances, it is disingenuous for Mr Croft to state that he did not apply to join the Wirangu 2 and Nauo 1 proceedings because he did not know how to do so. I infer that he never turned his mind to joining those proceedings because the elders in his family responsible for making decisions about native title claims at the relevant time, specifically his father and uncle, as members of the Barngarla claim group, had agreed not to contest the Wirangu 2 and Nauo 1 claims.

85    For similar reasons, I place no weight on Mr Croft’s evidence concerning the “native title arrangement” which allegedly negated interests in the Wirangu and Nauo claim areas, and the alleged denial of procedural fairness and natural justice. I infer that Mr Croft was referring to the Memorandum of Understanding and Deed of Termination between the Nauo and Barngarla claimants. Mr Croft provided no details regarding his allegations of a denial of procedural fairness and natural justice and he has not adduced any evidence to support such allegations. Further, as Mr Croft acknowledged during the hearing, as a younger man in 1999 he did not have any authority to make decisions or enter into such arrangements on behalf of the Barngarla people.

86    In relation to Nauo 2, the Barngarla claim covered that area. In Croft, Mansfield J concluded that the Barngarla people did not hold native title rights and interests in respect of that area. Again, Mr Croft’s family were closely involved in the Barngarla claim and must be taken to be fully aware of the Court’s decision, including in relation to the Nauo 2 claim area. At the time that final orders were made in Croft No 2, the Nauo 2 application was filed. That was more than five years ago. Mr Croft did not say that he was unaware of the filing of that claim at the time, and I readily infer that he was aware. Again, I consider it disingenuous for Mr Croft to state that he did not apply to join the Nauo 2 proceeding because he did not know how to do so. I infer that, in the years following the decision in Croft, he never turned his mind to joining that proceeding because the Barngarla people, which included his family, had been unsuccessful in their claim in respect of the Nauo 2 claim area.

87    In February 2020, the Barngarla people filed another native title application in respect of the area the subject of the Nauo 2 claim. One of the named applicants in that application was Mr Croft’s uncle, Barry Croft. That application was summarily dismissed by Charlesworth J on 24 December 2020: see McNamara. I infer that Mr Croft was aware of that application and its dismissal, given his family’s involvement in the application. I also infer that, following that decision, Mr Croft did not turn his mind to joining the Nauo 2 proceeding as a respondent because of the dismissal of the Barngarla application in McNamara.

88    Ms Croft did not provide any explanation for the delay in making the joinder applications. In para 14 of her affidavit, Ms Croft merely states that she was not party to “a prior native title arrangement which negated our interests in the claim area and west to Haslem”. Again, I infer that Ms Croft is referring to agreements by which the Barngarla claim was reduced in size in 1999 so as to remove overlap with the Wirangu 2 and Nauo 1 claim areas. For the same reasons as in respect of Mr Croft, I place no weight on that evidence.

89    The Crofts also made a further submission during the hearing to the effect that the reason for their delay in applying to join the proceedings was that they had believed the State and Commonwealth would oppose the Wirangu and Nauo claims, and when they heard that the proceedings were instead likely to proceed to a consent determination, they applied to join. I do not accept this as a reasonable justification for the Crofts’ delay in applying to join the proceedings. Opposition to an application does not in itself give rise to a sufficient interest for joinder under s 84(5). If the Crofts (or other members of their family) did in fact have an interest in the proceedings, they could have applied to join the proceedings many years ago, in which case they would have had the opportunity to participate in discussions with the applicants, the State and the Commonwealth in relation to the Nauo and Wirangu claims.

90    Having regard to the extent and consequences of delay in making the joinder applications, the Crofts bear a significant burden to show that their interests in the claim area are such that the interests of justice favour joinder. In my view, their evidence falls well short of doing so.

91    Mr Croft exhibited to his affidavit the statement of his father, Henry Croft, that was admitted into evidence in the Barngarla proceeding. In that statement, extracts of which are reproduced above, Henry Croft asserts his identity as Barngarla. Nowhere does Henry Croft suggest that he is a member of a “subdivision of the Barngarla” known as “Nauo-Barngarla”, or that he was raised by his parents, Harry and Phyllis Croft, as “proud Nauo-Barngarla people”, being assertions that are now made by Mr Croft in this application. It can be accepted that, in his statement, Henry Croft asserts native title rights and interests in areas that are the subject of the Wirangu and Nauo claims; however, he consistently does so as a Barngarla person and not in any other capacity.

92    In his affidavit and submissions, Mr Croft expressly states that he is not asserting rights and interests on behalf of the Barngarla people, and is not claiming to represent the Barngarla people. Rather, Mr Croft appears to assert native title interests on two bases: first, that he is a descendant of a Nauo-Barngarla woman, the mother of Harry Croft and Bob Eyles, who was born in the 1850s and is a member of the Nauo-Barngarla people who are a subdivision of the Barngarla people; and second, that the Croft family, and Mr and Ms Croft specifically, have personal rights and responsibilities to parts of the Wirangu and Nauo claim areas.

93    In her affidavit, Ms Croft also expressly states that she is not making the joinder applications on behalf of the Barngarla people. However, unlike Mr Croft, Ms Croft does not claim to be a Nauo-Barngarla person. Rather, Ms Croft asserts her identity as Barngarla, but says that she has individual inherited rights and interests in parts of the Wirangu and Nauo claim areas.

94    The evidence that has been adduced by the Crofts on these applications falls well short of satisfying me that the Crofts have an arguable interest in the Nauo claim areas as Nauo-Barngarla people. While it is not the task of the Court on this application to resolve contested questions of fact, the evidence adduced on behalf of the Crofts fails to establish a factual basis for an arguable interest. The evidence largely consists of assertion and, as noted earlier, lacks coherence in numerous respects. At the core of Mr Croft’s assertion of his Nauo-Barngarla identify is his Nauo-Barngarla great-grandmother, whom he identified during the hearing as Granny Nora Croft. The further written submissions provided to the Court the day of the hearing provide some further information about Nora Croft: in particular, that she lived within the Elliston area and later in Venus Bay (both of which are within the Nauo claim areas). Beyond this, there is no information before the Court as to Nora Croft’s ancestry or the nature and practical effect of her Nauo-Barngarla identity as it concerns her descendants. While Mr Croft submitted that his father was raised as a proud Nauo-Barngarla person, Henry Croft’s statement for the Croft proceeding states his identity as Barngarla and does not refer to a Nauo-Barngarla subgroup, far less his identity as a member of that subgroup. The possibility of subgroups of the Barngarla people was the subject of evidence in the Barngarla claim and considered by Mansfield J in his reasons in Croft (at [101]-[124] and [283]-[304]). Aspects of that evidence were referred to by Mr Croft in his written submissions, but in a selective manner. Justice Mansfield observed that “all the Barngarla witnesses had a definite notion of the “Barngarla people” as a distinct society” (at [265]). While the possibility of a Nauo-Barngarla subgroup was considered in Croft, it had almost no support in the evidence (see at [300]-[303]).

95    As the son of Henry Croft, I accept that Mr Croft is a Barngarla person. So too, I accept that Ms Croft is a Barngarla person. It follows that the Crofts have native title rights and interests as members of the Barngarla people. I also accept, on the evidence presented, that the Crofts have tenable claims to being custodians of particular Barngarla stories. On the evidence before me, I consider that the only tenable claim to native title rights and interests able to be advanced by the Crofts is as members of the Barngarla people, and as persons within that community that have specific responsibilities for certain stories.

96    My conclusion in this regard is reinforced by the inconsistency in the Crofts’ stated position in respect of the Nauo and Wirangu claims. While on the one hand, they have submitted that they seek to challenge the definition of the Nauo claim group and to have it expanded, their primary contention appears to remain that all of the country in which the Wirangu and Nauo people assert native title rights and interests is in fact Barngarla country. They reject the Wirangu claims entirely, and submit that the Nauo people are a subgroup of the Barngarla people.

97    In the circumstances described in these reasons, where the Barngarla people chose not to pursue a claim in respect of the Wirangu 2 and Nauo 1 claim areas many years ago, and where the Barngarla claim in respect of the Nauo 2 area was rejected in Croft, and having regard to the prejudice that would be occasioned to the applicants if the joinder applications were to be allowed, I consider that it is contrary to the interests of justice to allow such claims to be pursued by the Crofts. That conclusion is only fortified by the fact that, in making their applications, the Crofts have not adduced any evidence that their applications are supported by the Barngarla people. To the contrary, the Crofts have made clear in their affidavits and submissions that, in making these applications, they are not representing the Barngarla people.

Conclusion

98    In conclusion, I am not satisfied that it is in the interests of justice to join the Crofts to the Nauo and Wirangu proceedings. I therefore dismiss the joinder applications.

99    For completeness, I note that the notification period for the Nauo 4 claim has not yet expired. As noted earlier, neither Mr Croft nor Ms Croft has taken the step of formally notifying the Court that they want to be a party to the Nauo 4 proceeding by filing a Form 5 in accordance with the Regulations. If and to the extent the Crofts’ application to be joined to Nauo 4 pursuant to s 84(5) of the Native Title Act may be regarded as a notification for the purpose of s 84(3), with the result that they are to be regarded as parties to Nauo 4, I would make an order under s 84(8) that they cease to be a party. I would do so for the same reasons that I have dismissed the joinder applications made under s 84(5).

Associate:

Dated:    19 July 2022

ANNEXURE A

SCHEDULE OF PARTIES