Federal Court of Australia

Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part B) v State of Western Australia [2022] FCA 1356

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 31 May 2022 and taken to have been filed on 20 June 2022 is dismissed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    In 2018 the Nangaanya-ku applicant applied for a determination of native title under s 13(1) of the Native Title Act 1993 (Cth). The application related to an area of land centred around Lake Rason, about 100 km east of Laverton in Western Australia.

2    In November 2021, Griffiths J made a consent determination that native title existed in relation to most of the land that was the subject of the application, designated Part A. The land that was excluded from the determination, Part B, was covered by two mining leases. There is an issue about whether one of the mining leases is valid, which was the subject of a separate question heard in September of this year. Depending on the outcome of that separate question, there may then be issues about whether the mining leases or acts prior to them resulted in extinguishment of native title, and whether s 47B of the Act requires any extinguishment to be disregarded. It may also be open to the holders of the mining leases to contest the underlying existence of native title rights and interests in relation to the Part B land.

3    These reasons concern an interlocutory application in the proceeding. Bindarn Maisie Harkin, Leonard Percy Wells and Dion Gerald Meredith (the joinder applicants) apply to be joined as respondents to the native title claim, and for other orders. The joinder applicants claim to have an interest in the Part B land because they are part of the Nanatadjarra people, whose ancestors, they say, had rights in relation to that land, and by descent from whom the joinder applicants assert native title rights and interests. In this judgment I will refer to people as 'Nanatadjarra' in order to avoid repetitively using 'asserted' or 'alleged' Nanatadjarra, or other such formulations. Nothing in this judgment represents any determination of the validity of the Nanatadjarra claim to native title rights and interests.

4    The Nangaanya-ku applicant and the first respondent, the State of Western Australia, oppose the interlocutory application. For the following reasons the interlocutory application for joinder and other orders will be dismissed.

The basis of the joinder application

5    The interlocutory application is dated 31 May 2022 but was not lodged with the Court until 19 June 2022 (a Sunday) and so is taken to have been filed on 20 June 2022 (r 2.25(3) Federal Court Rules 2011 (Cth)). As well as their joinder to the proceedings, the joinder applicants seek an order for 'an independent review of the Part A determination … on the basis that the Nangaanya-ku changed their identity'. They also seek orders for provision of the following materials:

(1)    evidence of the connection of the Part A native title holders to 'land and waters at the time of the application of Part B';

(2)    a summary of the assessment by the State which supported the Part A consent determination 'on the basis to cross reference the apicals and the sworn testimony given in the Wongutha hearing';

(3)    the anthropological reports and evidence 'conducted by Central Desert Native Title Services' (CDNTS) for Nangaanya-ku 'including any explanation given by claimants for evidence in relation to apicals that has differed from that given in the Wongatha hearing so to satisfy that no Federal Court rules have been violated for the change of sworn testimony';

(4)    the anthropological reports and evidence conducted by CDNTS and the summary of the independent review conducted by the State of the apical ancestor Alec Bilson who is named in the Nangaanya-ku application, the review being sought on the basis that Mr Bilson was 'a Nanatadjarra ancestor and has not identified as a Wangkayi (or Wongutha) people and/or Spinifex people'; and

(5)    the anthropological reports and evidence for the ancestors Kitty Wells, Ningu and Nu:nanj (who are named in the Part A determination) on the basis that they are Nanatadjarra ancestors 'and have not identified as a Wangkayi (or Wongutha) people or Spinifex people'.

The references to 'Wongutha hearing' and 'Wongatha hearing' are to the proceedings that resulted in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31.

6    The interlocutory application is supported by two affidavits of Ms Harkin, one each from Mr Wells and Mr Meredith, as well as affidavits from five other persons, one of whom is an anthropologist, Ms Jessica Binet. Each of the deponents (other than Ms Binet), in essence claim native title rights and interests in relation to at least some, if not all, of the land and waters in both Part A and Part B of the Nangaanya-ku claim area. In broad terms, the joinder applicants seek to be joined so that they may protect those rights and interests. They also wish to have the Nanatadjarra apical ancestors named above removed from the Nangaanya-ku claim.

7    The joinder applicants are self-represented. They have filed a joint written submission. Ms Harkin claims to have native title rights and interests in relation to both Part A and Part B of the claim area. Each of Mr Wells and Mr Meredith claim to be part of the Nangaanya-ku claim group by reason of descent from apical ancestors named in the Part A determination and in the Part B claim. However they wish to claim these interests, not as Nangaanya-ku, but as Nanatadjarra. The joinder applicants say that the potential effect of a determination in relation to Part B on their interests as Nanatadjarra people gives them sufficient interest to be joined as respondents to the claim. They also seek to lead evidence in relation to any issue under s 47B of the Act. The fact that they are in a position to lead that evidence, they say, means it is in the interests of justice to join them as a party.

8    The joinder applicants say that because they were not identified in the joint submissions filed in support of the Part A consent determination, they are 'not included' in that determination. They contend that the lack of any mention of the Nanatadjarra people in the joint submission of the Nangaanya-ku applicant and the State that was filed in support of the consent determination over Part A means that they are 'not identified as native title holders' and 'therefore are not included in Part A or Part B'.

9    In support of their claim to have sufficient interest to be joined to the proceeding, the joinder applicants have provided some evidence of their connection to Part B country. They rely on evidence that a rockhole site in the Part B area called Kungkarungkarra Minyma Tjuta is a place of significance to women in the banaga skin group, in particular, and submit that it is a 'Nanatadjarra place'. There is evidence that the Seven Sisters Dreaming known as Kungkarungkarra runs through that site. They also refer to a site said to be important to the Nanatadjarra men, called Kungaru which is near or in the Part B area (it is not entirely clear which, from the evidence and submissions). This too, they say, is a Nanatadjarra place.

10    The joinder applicants also say that they fulfil the State's guidelines for having 'occupation' of the relevant area in a s 47B application which leads to the conclusion that native title in relation to the Part B area has not been extinguished. Section 47B applies if, among other things, a claimant application is made in relation to an area and, when the application is made, one or more members of the native title claim group occupy the area: s 47B(1)(a) and (c). The joinder applicants contend that Ms Harkin and Nunkily Ann Edwards were in occupation of the Part B area at the time that the Nangaanya-ku application was made.

11    The joinder applicants say that if the Part B application is permitted to proceed 'the Nanatadjarra people will not be able to identify as Nanatadjarra on their own traditional lands' or carry out or practise traditional laws or customs and will 'lose the traditional lands of their ancestors'.

12    Further detail of the basis of the application for joinder appears in the affidavits filed in support of it. In Ms Harkin's first affidavit, affirmed on 17 June 2022, she claims that she is not a native title holder defined in the joint submission that supported the Part A consent determination. She claims to be a 'Nanatadjarra traditional owner'.

13    Ms Harkin's first affidavit says that she did not get an opportunity to become a respondent to the application in relation to the Part A determination and to challenge the connection of the Nangaanya-ku people to the claim area. She says she will lose her rights and interests in the Part B area if the determination proceeds and will not be able to conduct Nanatadjarra cultural business in that area. That country is, she says, one to which she has a connection through biological Nanatadjarra ancestors who are not included in the Nangaanya-ku claim.

14    Ms Harkin's affidavit provides evidence summarised above about the Kungkarungkarra dreaming and how it passes through the Part B area. It also provides evidence to the effect that in November 2018, she and Ms Edwards, who is identified as another Nanatadjarra elder, travelled to one of the two Part B areas so that they were occupying the area at the time that the Nangaanya-ku application was made.

15    Ms Harkin's first affidavit contains an apology for the lateness of the application, which she attributes to difficulties in obtaining legal representation. She also ascribes the timing of the application to the fact that, she says, Griffiths J mentioned s 47B of the Act in a hearing in November 2021 (in a proceeding that will be described below), and it was only then that the joinder applicants became aware of the section and began to look into it.

16    Ms Harkin affirmed a second affidavit on 6 September 2022. The affidavit canvasses many of the matters addressed in her first affidavit, albeit in more detail. I will only describe it to the extent that it does not repeat what is said in the first affidavit.

17    Ms Harkin says she is an elder of the Nanatadjarra who, she says, are about 200 in number. She says she can speak for country subject to the Part B area. She claims that she has lost rights as a result of the Part A determination. She recounts some history of the proceeding which will be detailed below. She asserts that as a result of that history, she did not get an opportunity to challenge, in particular, the State's acceptance that the Nangaanya-ku identified 'as being Wangkayi (or Wongutha) people and/or Spinifex People'. This is a reference to a statement to that effect in the joint submissions of the Nangaanya-ku applicant and the State in the Part A consent determination. Ms Harkin's second affidavit refers to her unsuccessful attempt to be joined as a respondent before the Part A determination, which will be described below. It asserts that there are connection issues in relation to the Part B area that have never been resolved.

18    Ms Harkin claims to be connected to the area of Mining Lease 39/1096 in the Part B areas through her mother, biological grandparents, and other named biological ancestors. These, she says, are not included as apical ancestors in the Part B claim. She also refers to 'adoptive Nanatadjarra ancestors', one of whom is Alec Bilson, her grandfather by adoption. Mr Bilson is the subject of one of the orders sought concerning the provision of anthropological information. He is also a named apical ancestor in the Part A determination and the Part B claim made by the Nangaanya-ku. That is, persons who can claim appropriate descent from him have native title rights and interests under the Part A determination, and will have rights and interests under the Part B determination if it is made in the terms sought.

19    Ms Harkin's second affidavit also recounts her early biography in more detail than her first affidavit does, including her belief that she was born at Kungkarungkarra. It provides more detail of Ms Harkin's and Ms Edwards' visit to that site in November 2018, and gives evidence that in 2020, women of Tjuntjuntjara recognised Ms Harkin as being from Kungkarungkarra, and evidence that those women will not go there without Ms Harkin being present.

20    Ms Harkin's second affidavit also contains detail of dealings with CDNTS, who represent the Nangaanya-ku applicant. It describes a number of, in Ms Harkin's words, 'negative interactions' with CDNTS, including community presentation sessions. It is not necessary to describe this evidence in detail; its tenor is that relations between CDNTS on the one hand and Ms Harkin and the Nanatadjarra people on the other have been uncooperative, with CDNTS obstructing the native title claims which Nanatadjarra sought to make, or at least failing to facilitate them. It also details 'aggression' between Nanatadjarra people and Nangaanya-ku applicants.

21    The second affidavit also notes that Ms Harkin's former legal representative contacted CDNTS requesting that she be included and participate in the Nangaanya-ku Prescribed Body Corporate (PBC). She deposes that her former legal representative told her that the request was refused. At the hearing, in her oral submissions, Ms Harkin clarified that she did not ask to participate in or join the PBC, but rather enquired as to 'how the PBC function worked'. She stated that the request was denied and she was not provided with information regarding the functions of the PBC.

22    In oral submissions at the hearing of the joinder application Ms Harkin made other points similar to those described above, emphasising her birth on what she called Nanatadjarra country, and her connection to the land, including the Kungkarungkarra rockhole. She said that to be told that the Nanatadjarra were 'nobodies' was a gross injustice.

23    Another of the joinder applicants, Mr Meredith, has also affirmed an affidavit, dated 26 August 2022. This says that he is not a native title holder as defined in the joint submissions filed in support of the Part A consent determination. He says that his connection to his traditional lands is through 'my Nanatadjarra Apical Nying'. He claims that if the Nangaanya-ku application is to proceed in its current form, he will lose his inherent rights to his traditional lands as a Nanatadjarra traditional owner, and will not be able to identify as Nanatadjarra on his own country and continue to practise his traditional laws and customs. Mr Meredith's affidavit, like Ms Harkin's, says that the joint submission in support of the Part A consent determination identified the Nangaanya-ku claimants as Wongatha and Spinifex people and not as Nanatadjarra people.

24    Mr Meredith made several oral submissions at the hearing of the joinder application. He said that the joinder applicants had not had an opportunity to put their evidence, but had been 'shut down'. He claimed that the Part A determination and the Part B application did not recognise or acknowledge the Nanatadjarra claim. He referred to sites of significance to the Nanatadjarra and said that the Nangaanya-ku people knew nothing of those sites and could not care for them. He made complaints about meetings and information sessions conducted by CDNTS. He claimed that he gave no authority for his ancestor Ningu to be on the claim, and that no authority was given for Alec Bilson to be on the Nangaanya-ku claim either. As for the desire of the joinder applicants for an 'independent review', Mr Meredith said that they sought this because of 'contradictory evidence'. It is not clear what evidence Mr Meredith was referring to; it may be a claim made in his affidavit that 'Nangaanya-ku used the boundary as Nangaanya-ku for their claim to Native Title in Part A of their claim and then changed their identity to Wondatha [sic] and Spinifix [sic] People to exert their rights to claim Part B of the claimed area'. Mr Meredith further asserts that the evidence supplied by the Nangaanya-ku applicants for Part A and, in turn, Part B is insufficient in the eyes of the Nanatadjarra people. He submits that the interlocutory application and associated orders seek 'truth-telling' and justice, and to prevent the rights of the Nanatadjarra people from being diminished.

25    The third joinder applicant, Mr Wells, also affirmed an affidavit, dated 6 September 2022, in support of the application. He claims primary or core rights to 'Nantadjara country' through his father's side including from ancestors Kitty Wells and her mother Ni:ju. He continues to practise connection to country through participation in traditional laws and customs. Mr Wells claims rights to a rockhole in or near the Part B claim area called Kungaru which, he says, is the dreaming storyline of his father, Len Wells (also called Kungaru). The affidavit also makes reference to stones in the area that were carved by Mr Wells' grandfather who was the 'cultural law man of Nanatadjara lands'. The rockhole is, he says, a 'sacred significant area of the Wells family'. Mr Wells' affidavit gives further detail of his connection to country in the Nangaanya-ku claim area. Mr Wells emphasised these points in his oral submissions as well, claiming his connection to country through his father.

26    Mr Wells also provided some evidence in relation to these subjects which has been ordered to be treated as gender restricted (male) evidence. I have reviewed it and take it into account in relation to Mr Wells' claimed connection to country. It is not necessary to describe the content of the evidence.

27    Mr Wells' affidavit also gives a detailed account of a meeting he had with an anthropologist who was assisting the Nangaanya-ku claim group on 21 September 2018, Dr Heather Lynes. They discussed, essentially, which ancestors were and were not appropriate to be named for the purposes of the Nangaanya-ku claim, and who of their descendants had the right to make decisions about that. According to Mr Wells, Dr Lynes said that at the impending Nangaanya-ku authorisation meeting, Mr Wells should reject certain ancestors who were proposed to be included in the Nangaanya-ku claim.

28    Mr Wells' affidavit then gives a detailed account of that authorisation meeting. He says that 'it was total chaos' and that he was concerned that people who had no connection to the claim area were being included in the claim. Mr Wells deposes to numerous queries and requests he made of CDNTS after the meeting which, he says, were ignored. One instance of this was at a meeting on 24 August 2020, apparently of the Nangaanya-ku claim group, where a proposal to mediate a Nanatadjarra native title application which was then on foot was put, and apparently disregarded. Mr Wells says that at every meeting he has attended since the authorisation of the Nangaanya-ku claim in 2018 he has 'constantly asked for CDNTS and the Nangaanya-ku claim group to prove to me that the rightful people are on the Nangaanya-ku claim'. He says he has been disregarded and ignored.

29    Mr Wells says that in 2020 he resigned as a member of the Nangaanya-ku claim due to his belief that many of the people and family groups on the Nangaanya-ku claim are not from the claim area and do not hold any native title rights to that area. He says he formed his decision to resign based on unspecified information that the Nangaanya-ku applicant has provided 'to support multiple other claims that they have been on or are currently on'. He relates objections he has raised at claim group meetings to the inclusion of Kitty Wells and Raymond Wells (Devil Devil) as apical ancestors 'on the Nangaanya-ku Prescribed Body Corporate'. Both of those ancestors as well as Binghy Lynch are his ancestors and, he says, should have been removed from the Nangaanya-ku claim under traditional law and custom. Mr Wells says that if the Nangaanya-ku are granted rights over the Part B claim area, his native title rights and interests will be lost. In oral submissions Mr Wells said he got out of the Nangaanya-ku claim group because he did not agree with who was included in the claim group and did not consider they came from that country.

30    It is not necessary to summarise in any detail the affidavits of the other five individuals who have given evidence in support of the joinder application. Broadly, they support the view that Nanatadjarra people have a connection to the Kungkarungkarra rockhole in the Part B area. Ms Edwards gives evidence of visiting the rockhole with Ms Harkin in November 2018. There is also the affidavit of the anthropologist, Ms Binet, who expresses the opinion that Ms Harkin, Ms Edwards and Mr Meredith possess rights to 'Nanatadjara country'. In the case of Ms Harkin that includes connection through knowledge and association with tjukurrpa (dreaming) at the Kungkarungkarra rockhole. The opinion is based on an individual interview with Ms Harkin as well as interviews with groups of people including Ms Harkin and Mr Meredith, and a phone interview with Mr Wells. Ms Binet also says that Ms Harkin and Ms Edwards were occupying Nanatadjarra country around the time that the Nangaanya-ku native title determination application was filed.

31    In relation to the materials of which the joinder applicants seek disclosure, the affidavits do not say anything more about the basis for seeking them than is said in the terms of the application itself, summarised above.

Some relevant procedural history

32    Before considering whether that evidence and those submissions justify the joinder of the joinder applicants to the proceeding, it is necessary to lay out some of the procedural history of the matter and related proceedings. That history is relevant because the State and the Nangaanya-ku applicant say that the present application is an abuse of process, or at least not in the interests of justice, because it seeks to revive various issues that the Court has already determined in the Part A consent determination as well as other applications and proceedings.

33    First, there is proceeding WAD 348 of 2017. This was a native title determination application brought by Ms Harkin and others purportedly on behalf of the Nanatadjarra people. On 17 July 2020 Griffiths J ordered that the Nangaanya-ku applicant was to be joined as a respondent to that proceeding on the basis that there was an overlap between the Nanatadjarra claim and the claim made in the present proceeding: Harkin on behalf of the Nanatadjarra People v State of Western Australia [2020] FCA 1015 (Harkin (No 1)).

34    Then on 18 January 2021, Griffiths J allowed an application for summary dismissal of WAD 348 of 2017, that is, the Nanatadjarra claim: Harkin on behalf of the Nanatadjarra People v State of Western Australia (No 2) [2021] FCA 3 (Harkin (No 2)). The Nangaanya-ku applicant applied for summary dismissal in its capacity as a respondent to WAD 348 of 2017. Griffiths J granted it on the ground that there were no reasonable prospects of the Nanatadjarra applicant establishing that the Nanatadjarra claim was properly authorised within the meaning of s 61(1) and s 251B of the Native Title Act. Essentially this was because (at [25], emphasis removed):

(a)    the Nanatadjarra applicant has not discharged its evidentiary onus in this summary dismissal proceeding of proving, on the balance of probabilities, that its decision-making process is traditional or that the claim has been authorised by the whole 'native title claim group', being all the persons who hold native title rights in the application area; and/or

(b)    on the basis of the available evidence, the Nangaanya-ku applicant has established that there are no reasonable prospects of the Nanatadjarra applicant establishing that there are no persons who hold native title rights and interests in the application area beyond those who are included in the current claim group as described in the Nanatadjarra claim.

35    The second of these points can be described as the 'subgroup problem', in that the Nanatadjarra claim group was revealed to be but a subgroup of the persons holding native title rights and interests in relation to the claim area. Four witnesses had given evidence that they had a parent or grandparent who were born in the Nanatadjarra claim area but those people were not described as members of the Nanatadjarra claim group (at [39]).

36    Then, on 6 May 2021, Griffiths J dismissed interlocutory applications by Ms Harkin and Mr Wells (and one Ivan Fraser) to be joined as respondents to this proceeding: Forrest on behalf of the Nangaanya-ku Native Title Claim Group v State of Western Australia [2021] FCA 467 (Nangaanya-ku (No 1)). His Honour observed (at [11]) that the reasoning summarised at [25(b)] of Harkin (No 2) in relation to the subgroup problem was relevant to the joinder application before him. His Honour summarised the evidence of Ms Harkin to the effect that she had rights and interests in the Nangaanya-ku claim area as a descendant of Alec Bilson (at [15(f)]). His Honour also summarised (at [19]-[21]) evidence from Mr Wells which was similar to evidence he gives in support of the present application. That included his claim to hold native title rights and interests by reason of his descent from Kitty Wells and 'Raymond Devil Wells'.

37    Griffiths J summarised the submissions of Ms Harkin and Mr Wells in the joinder application before him as follows:

[25]    First, Ms Harkin and Mr Wells contend that as descendants of apicals listed in the Nangaanya-ku native title claim group, this alone establishes a 'strong prima facie interest' in the Nangaanya-ku Claim, relying upon Reeves J's decision in Malone v State of Queensland [2019] FCA 2115. In Malone, Reeves J allowed three applications for joinder as respondent parties to a s 61 native title application. At [23], Reeves J stated that the fact the joinder applicants in those proceedings had apical ancestors who until three months prior had been within the claim group description provided them with a 'a strong prima facie case that they may have native title rights and interests in the claim area'.

[26]    Secondly, Ms Harkin and Mr Wells each submit that their respective apicals should not be used in the Nangaanya-ku Claim without their consent. Ms Harkin and Ms [sic] Wells referred to Mansfield J's decision in Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [17] in support of their submission that, just because they cannot obtain a determination of native title in their favour, it does not mean they cannot become respondents 'for the quite separate and different purposes of seeking to protect the native title rights and interests they claim to hold from erosion, dilution or discount by the process of the Court'. In essence, Ms Harkin and Mr Wells seek 'to defensively assert' their claimed native title rights and interests (at [18]).

[27]    Thirdly, Ms Harkin submits that she wishes to ensure 'that the correct evidence is before the Court as to Country, her apical and the traditional laws and customs of the people in the claim area'. Similarly, Mr Wells submits that he wishes to assert 'that there is a lack of connection for other apicals in the Nangaanya-ku claim area, and that there are people in the Nangaanya-ku application who do not belong to the claim area' (footnotes omitted), and to 'ensure [his] Apicals are removed from this Claim'. …

38    Griffiths J held that it would not be in the interests of justice to join Ms Harkin, Mr Wells and Mr Fraser to this proceeding because (at [58]):

… heavy weight must be given to the sweeping generality and lack of particularisation in the evidence of both Ms Harkin and Mr Wells regarding their concerns as to the composition of the claim group. I accept the Nangaanya-ku Applicant's submission that it is notable that neither Ms Harkin nor Mr Wells identify the other apicals who are the subject of their stated concerns, nor has either provided any evidence to establish even a prima facie case for challenging the legitimacy of the use of those other apicals. …

39    Further, in relation to the subgroup problem (at [59]), in circumstances where some of the persons identified in Harkin (No 2) as claiming to hold native title rights and interests in the claim area who were not included in the Nanatadjarra Proceedings are now applicants of the Nangaanya-ku Claim:

… it is not in the interests of justice to join Ms Harkin and Mr Wells as respondents for the sole purpose of agitating issues concerning claim group membership and use of apicals, which is their asserted interest in the Nangaanya-ku Claim. This is particularly so in circumstances where Mr Wells was named as an applicant in the Nangaanya-ku Claim (before his decision to voluntarily resign) and Ms Harkin remains a member of the Nangaanya-ku native title claim group.

40    Griffiths J also held (at [60]) that:

… the concerns expressed by Ms Harkin and Mr Wells as to how the Nangaanya-ku Claim is being conducted, including their desire to give evidence in relation to that claim and their disaffection with aspects of it can appropriately be described as involving intra-mural matters and is not a proper basis for joining them as respondents to this proceeding: Alvoen on behalf of the Wakaman People #3 v State of Queensland [2019] FCA 1469 at [28(g)] and Bell [on behalf of the Wakka Wakka People #4 v State of Queensland [2020] FCA 695] at [45] per Rangiah J. I do not accept that this is one of the 'rare' circumstances in which 'dissentient members' of a native title claim group should be joined as a respondent (Starkey [v State of South Australia [2014] FCA 924] at [61] per Mansfield J).

41    His Honour also accepted (at [61]) submissions from the parties opposing joinder that there was a real possibility that it could cause delay and further expense in the progress of the claim and could frustrate what were then advanced negotiations which ultimately led to the Part A consent determination.

42    Then, on 10 November 2021, Griffiths J summarily dismissed proceeding WAD 213 of 2021 in this Court: Evans on behalf of the Yarla-Gu Bunna Nangatjara People v State of Western Australia [2021] FCA 1382 (YBN). Among the proponents of that claim and the members of the group of persons comprising the YBN applicant were Ms Harkin, Ms Edwards and Mr Wells. The Nangaanya-ku applicant in this proceeding was the party seeking summary dismissal of the YBN claim. Griffiths J determined that the YBN proceeding should be summarily dismissed for non-compliance with s 61 of the Native Title Act, or struck out under s 84C(1) of the Act, both of which concern a lack of proper authorisation. But his Honour also concluded that the YBN application was to be dismissed as an abuse of process. The Part A consent determination in this proceeding was impending. It would have been unjustifiably oppressive to the Nangaanya-ku applicant and the claim group to 'essentially place its claim right back at the start of a contested application process in this Court' (at [81]). The fact that the State had satisfied itself that there was a credible and cogent basis for a positive native title determination in relation to the Nangaanya-ku claim attracted considerable weight. His Honour thus held (at [82]):

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

43    Griffiths J also found (at [83]) that the use of the Court's procedures to bring the YBN claim at such a late stage, when it was known that the consent determination had been authorised by the Nangaanya-ku claim group, brought the administration of justice into disrepute. At [84] his Honour concluded:

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

44    Finally, the Part A consent determination was made on 29 November 2021: Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part A) v State of Western Australia [2021] FCA 1489 (Nangaanya-ku (Part A)). For the purposes of the present application it is relevant to note five aspects of that determination.

45    First, the group of persons described as holding the native title determined to exist in the Part A area is defined as the persons who hold native title rights and interests in part or all of the area according to their traditional laws and customs through one or more 'pathways' described in the determination.

46    Second, those persons are specified as including (but not being limited to) descendants of named ancestors including Binghi Lynch, Alec Bilson, Kitty Lynch/Wells and Raymond Wells, as well as Blind Maggie and Ningu. The significance of those last two named ancestors is that, according to affidavit evidence of Angela Melville, a CDNTS solicitor, Mr Wells is a descendant of Blind Maggie and Mr Meredith is a descendant of Ningu, although in oral submissions Mr Wells appeared to dispute his link to Blind Maggie.

47    Third, the Part A consent determination does not require a person to identify as Nangaanya-ku, or Wongatha/Wangkayi, or Spinifex in order to be a member of the group of native title holders.

48    Fourth, in the reasons for the consent determination for Part A, Griffiths J accepted that each of the members of the Nangaanya-ku claim group has a connection to the entire application area, that is, Part A and Part B, although for the reasons given above the determination that native title exists has to date only been made in relation to Part A: see Nangaanya-ku (Part A) at [18], [25]-[26].

49    Fifth, the determination describes the native title rights and interests held by the members of the claim group as including the right to engage in spiritual and cultural activities in the Part A determination area and the right to maintain and protect places and objects of significance in that area: Determination paras 4(c) and 4(d). Those rights are not confined to persons who identify themselves as having any particular cultural affiliation, for example, Wongatha or Spinifex.

Principles

50    It is convenient to set out the summary of the principles governing joinder applications which Griffiths J gave in Nangaanya-ku (No 1) at [47]-[50], which were in turn based on the summary his Honour gave in Harkin (No 1):

[47]    Section 84(5) of the NT Act provides as follows:

Joining parties

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

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

34.105 Joinder of parties to main application after relevant period

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

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

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

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

[49]    It is common ground that the following three elements must be addressed under s 84(5):

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

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

(c)    whether it is in the interests of justice to join the person as a party, which involves a discretion, which must be exercised judicially.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

51    As Griffiths J said (Nangaanya-ku (No 1) at [52]), this summary is not exhaustive and reflected the particular circumstances of Harkin (No 1). Given the obvious closeness of those circumstances to those of the current proceeding, I respectfully adopt his Honour's summary of principle given above. No party suggested that I should do otherwise.

52    As for abuse of process, in YBN at [64]-[69] Griffiths J described the principles applicable in the context of native title proceedings. In summary:

(a)    the primary issues are whether the use of the Court's procedures would be unjustifiably oppressive to a party or bring the administration of justice into disrepute;

(b)    the Court is required to balance the entitlement of a person to bring a claim against fairness to the other parties, and the need to maintain public confidence in the administration of justice and in the operation of the Native Title Act;

(c)    it is important in the context of the Native Title Act to recognise that it engages public interests as well as private ones, including (relevantly here) the public resources that the State has devoted to a negotiated outcome to bring finality to native title claims;

(d)    nevertheless, the power to dismiss a proceeding for abuse of process should be exercised sparingly as it deprives a party of what is otherwise an entitlement to commence and maintain a proceeding and have the party's claims considered and determined;

(e)    unreasonable delay in bringing a claim or applying to be joined to one is capable of constituting an abuse of process; and

(f)    the variety of situations that will justify use of the power to dismiss for abuse of process do not lend themselves to exhaustive statement and every case necessarily turns on its own facts.

Why the application for joinder will be dismissed

53    Applying the above principles to the joinder application here leads to the conclusion that the application should be dismissed.

54    While not the subject of unqualified concessions, neither the Nangaanya-ku applicant nor the State seriously contested that the joinder applicants' claims to hold native title rights and interests as members of a group known as the Nanatadjarra were sufficient to establish a prima facie interest in the Part B claim area that could found an application for joinder.

55    Nor did the Nangaanya-ku applicant nor the State seriously contest the explanation given in Ms Harkin's affidavit for the delay in bringing the joinder application, namely that it was not until Griffiths J mentioned s 47B that the joinder applicants began looking into that provision and decided that they needed to be joined in order to put forward their claim. I proceed on the basis that any delay in the present circumstances does not, of itself, weigh against joinder here. Nor do I consider the timing of the application to be otherwise significant; in contrast to YBN, there is no impending consent determination in relation to Part B, and it must be acknowledged that Ms Harkin and Mr Wells originally applied to be joined to the proceeding back in March 2021.

56    Nevertheless, for the following reasons it would not be in the interests of justice to join the joinder applicants to the proceeding.

57    First, the interlocutory application is based on a misconception about the effect of the Part A determination on the joinder applicants' rights, and the effect on those rights of any determination of native title over the Part B land in favour of the Nangaanya-ku. I have described above the features of the Part A determination that are relevant to this. In short, the Part A determination means that each of the joinder applicants does have native title rights and interests. They are each, at least, descended from ancestors who are named in the determination. They make no complaint about the content of those rights and interests as set out in the determination. And nothing in the determination prevents them from exercising those rights and interests on the basis that they are Nanatadjarra people. Nothing in the determination prevents them from conducting, in words from Ms Harkin's first affidavit, 'inherent Nanatadjarra cultural business or any other activities on Nanatadjarra land and waters ever again'. Nothing in the determination requires them to identify as Wangkayi/Wongatha, or Spinifex, or Nangaanya-ku when they conduct that cultural business. It may be expected that if the matter does proceed to a determination that native title exists in relation to the Part B area, the joinder applicants will be native title holders there in the same way. So their submission that they are not included in Part A or Part B is not correct.

58    While the claim group in whose favour the Part A consent determination was made is called Nangaanya-ku, and while the joint submissions in support of the determination identify members of the claim group as Wangkayi or Wongatha and Spinifex people, those are not stipulations that define the rights that are the subject of the determination or the people who have those rights. The rights to engage in spiritual and cultural activities in the Part A determination area and to maintain and protect places and objects of significance in that area are conferred without any restriction on whose spiritual and cultural activities can be conducted or whose places and objects can be maintained and protected. The joint submissions in support of the Part A consent determination did, at least, acknowledge the existence of Nanatadjarra as a Western Desert dialect spoken by members of the Nangaanya-ku claim group. It is simply unknown whether or not the members of the Nangaanya-ku claim group or the PBC which holds the native title rights and interests on trust will object to any attempt by the joinder applicants or others to exercise those rights in their capacity as Nanatadjarra people or in the pursuance of Nanatadjarra business. But if they do, that will be a matter to be determined within the framework of the dispute resolution processes of the PBC. They are not matters that arise in the course of the current proceeding.

59    Second, to permit the joinder applicants to become respondents to contest the claim of the Nangaanya-ku applicant to native title rights and interests would be inconsistent with the Part A determination, and with the decision in Nangaanya-ku (No 1). As has been said, the findings in Nangaanya-ku (Part A) are findings that the Nangaanya-ku claim group have native title rights and interests and the necessary connection to country over all of the claim area. That includes Part B. In circumstances where the Court has already entertained and rejected an application by two of the three present joinder applicants to be heard in relation to those matters, it would undermine the finality of the findings made in the Part A determination to permit the joinder applicants to reopen those matters in connection with the Part B land. The joinder applicant who was not an applicant for joinder in Nangaanya-ku (No 1), Mr Meredith, does not put his application on any different ground. To permit that reopening would be to disrupt and reverse a great deal of work which has been performed by the Nangaanya-ku applicant, the State and the Court to narrow the issues in relation to Part B down to the validity of the mining lease and, subject to that, issues about past acts and extinguishment in light of s 47B of the Native Title Act. It would cause waste of private and public resources. It would not be in the interests of justice to permit such a reopening to occur.

60    To be clear, that conclusion depends on the particular circumstances of the joinder applicants in light of Nangaanya-ku (No 1). It does not represent any finding about whether or not other persons, such as the holder of Mining Lease 39/1096, may challenge the existence of native title in relation to Part B land at a later time.

61    Third, given that the joinder applicants are undoubtedly part of the Nangaanya-ku claim group in relation to Part B, and traditional owners under the Part A determination, the claims they wish to raise if they are joined as respondents are properly characterised as intra-mural. To the extent that the joinder applicants assert that some apical ancestors named in the Part A determination and Part B claim should be excluded, or that other apical ancestors not named should be included, that is fundamentally a dispute about the composition of the claim group. Part A has already determined that, and there is no reason to think that Part B will be any different. If the holder of Mining Lease 39/1096 does end up challenging the underlying existence of native title, that is unlikely to be a challenge to the composition of the claim group.

62    As for the joinder respondents' complaints about the authorisation process, the conduct of claim group meetings, and their perception that their views have been disregarded and ignored, the observations of Griffiths J in Nangaanya-ku (No 1) which are set out at [39] and [40] above continue to apply. Those complaints involve intra-mural matters that do not justify adding the joinder applicants as respondents to the proceeding. The following comments of Bromberg J in Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia [2022] FCA 114 at [48] are also apposite:

… the Act has established a scheme for the representation of claim group members in a native title determination proceeding. The existence of that scheme is generally inconsistent with the separate participation of a group member as an individual party. As Mansfield J recognised in Starkey [v South Australia (2011) 193 FCR 450] at [55], s 251B of the Act requires authorisation in accordance with traditional law and custom or according to a decision-making process agreed to by the claim group. Section 251B does not require unanimity among members of the claim as part of that process. To the contrary it contemplates that in many cases there may be dissent among members of the claim group. Those who disagree will nevertheless be bound by the decision of the claim group as a whole in accordance with the Act. If dissatisfied members of the claim were routinely afforded the elevated status of a respondent to a proceeding in order to agitate interests adverse to the will of the claim group as a whole, including by delaying the proceeding or withholding their consent to a negotiated outcome, it would undermine the representative function of authorisation under the Act: see generally Starkey at [55]-[56].

63    Also giving rise to intra-mural issues is Ms Harkin's and Ms Edwards' desire to be identified as having been in occupation of the Part B area at the time that the Nangaanya-ku application was filed with the Court, so that under s 47B of the Native Title Act native title in that area is not extinguished. That provision requires that one or more members of the native title claim group occupy the area at the relevant time. To the extent that there might be a Nanatadjarra claim group, the Court has repeatedly, in Harkin (No 2) and again in Nangaanya-ku (No 1) and in YBN, found that there is no reasonable prospect of establishing that a Nanatadjarra claim has been properly authorised. So Ms Harkin and Ms Edwards could only realistically be taken into account for the purposes of s 47B in their capacities as members of the Nangaanya-ku claim group. But the question of which members of the group are to be advanced as having been in occupation at the relevant time is a matter for the claim group. It is not a matter that Ms Harkin should be permitted to agitate as a respondent to this proceeding.

64    To the extent that Mr Meredith submits that the identification of the claim group as Nangaanya-ku is somehow inconsistent with the identification of members of the claim group as Wongatha or Spinifex People, there is no support for that in the evidence. In truth, the appellation Nangaanya-ku for the claim group is not linked to any tribal name or particular conception of identity held by members of the claim group or attributed to them by outsiders. There is therefore no contradiction between the use of that name for some purposes, and the use of terms such as Wongatha and Spinifex for other purposes.

65    Fourth, the procedural history recounted above shows that the present joinder application is but the latest in a series of attempts on behalf of Ms Harkin, Mr Wells and others who identify as Nanatadjarra to be able to assert that separate identity in order to claim native title rights in relation to the application area, whether as an applicant (Harkin (No 1), Harkin (No 2), YBN) or respondent (Nangaanya-ku (No 1)). On each occasion, the Court has dismissed the attempt. The basis of the present joinder application is the same as that of the previous one: see [37] above. The joinder applicants point to no new development or matter that would justify this latest attempt. To the contrary, the making of the Part A determination, and the confining of the remaining issues to Part B, a relatively small area, weigh against the attempt. And the joinder application remains bedevilled by the 'sweeping generality' to which Griffiths J referred in Nangaanya-ku (No 1). For example, Mr Wells's affidavit says that he was very concerned that people who had no connection to the claim area were being included on the claim, but aside from two people who he deposes are adoptive children of one of the apical ancestors, he does not say any further who those people were, let alone provide evidence that they lacked connection to the area. This level of generality can be contrasted with, for example, the particularisation of the contested apical ancestors, claimants and spiritual places in the YBN application: at [58].

66    It is not necessary to find that this latest attempt at becoming an applicant or becoming respondents is thus an abuse of process. It is enough to say that to allow the attempt to be successful would not be in the interests of justice as it would undermine the general desirability of determining such matters on a final basis and would encourage endless interlocutory disputation.

67    For those reasons, the joinder applicants' application to become respondents to the proceeding will be dismissed.

The orders for an 'independent review' and disclosure of documents

68    The other aspects of the interlocutory application can be determined more briefly. Potentially most significant was the order sought for an independent review of the Part A determination 'on the basis that the Nangaanya-ku changed their identity'. This appears to be a reference to Mr Meredith's assertion that the application started out as an application by the Nangaanya-ku but ended up being made by people identified as Wongatha/Wangkayi and Spinifex.

69    I have already indicated why that complaint does not have any substance. But even more fundamentally, the Court has no power to order an 'independent review' of the kind sought. The joinder applicants identified no head of any such power. The Part A determination was the outcome of an application under s 61 of the Native Title Act for a determination of native title pursuant to s 13(1)(a) and so was an 'approved determination of native title' under s 13(3) of the Act. As a result, s 13(5) of the Native Title Act sets out the grounds on which the determination may have been liable to variation or revocation. But no application has been made under s 13(5) and there is no apparent basis on which it could be made.

70    That being so, the only avenue for review of the Part A determination, broadly conceived, would have been an appeal, but that was not open to the joinder applicants who were not respondents to the proceeding (or, in practice given that it was a consent determination, to anyone else).

71    There is no basis on which the Court could order an 'independent review' of its own previous, binding decision in a case of this kind. The application for that order will be dismissed.

72    The other orders sought all seek information which appears designed to permit the joinder applicants to test the factual basis on which the Part A determination was made or, potentially, the basis on which the Part B determination is put. Once again, the joinder applicants point to no head of power under which the Court could make an order of that kind, even if it thought that such an order was appropriate. No such head of power is apparent. The joinder applicants have not succeeded in their attempts to become parties to the proceeding, so rights to discovery of documents do not arise.

73    Even if there was a power to make orders of that kind, I would not make them here. The matters apparently sought to be agitated are, once again, intra-mural ones that are not properly ventilated by way of an interlocutory application in a proceeding for the determination of native title, let alone one which, for the most part, has been finally determined. The balance of the interlocutory application will be dismissed.

Associate:

Dated:    15 November 2022

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