Federal Court of Australia

Forrest on behalf of the Kakarra Part A Native Title Claim Group v State of Western Australia [2023] FCA 529

ORDERS

THE COURT ORDERS THAT:

1.    The application of Marjorie May Strickland to be joined as a respondent is dismissed.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    Marjorie May Strickland (Ms Strickland) has made an application to be joined as a respondent in this proceeding. The Kakarra Part A applicant and the State of Western Australia oppose her application.

2    The parties have agreed that the interlocutory joinder application be heard on the papers.

3    Ms Strickland seeks the exercise of the discretionary power conferred on this Court by s 84(5) of the Native Title Act 1993 (Cth), which provides that:

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.

4    The requirements of s 84(5) are well established: Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [26] (Mansfield J); Agius v South Australia (Ngarrindjeri Native Title Claim Parts A and B) [2017] FCA 1162 at [5] (White J). Section 84(5) requires that the Court must be satisfied of the following three elements to join another party to a proceeding:

(1)    the joinder applicant has an interest (of the kind contemplated by s 84(5));

(2)    the interest may be affected by a determination made in the proceeding; and

(3)    it is in the interests of justice for the Court to order the joinder sought.

5    It is worthwhile at the outset to identify the nature of the claim in the Kakarra Part A application. The Kakarra Part A application is based upon the rights and interests in the lands and waters of the claim area being governed by the traditional laws and customs of the Western Desert Cultural Bloc, which are described at [8] of Sch F of the Originating Application. The claim group description is set out in Sch A of the Originating Application as follows:

1.    The native title claim group comprises the persons who hold native title rights and interests in the claim area through the following:

a)    an ancestor with a long association with the claim area in accordance with traditional law and custom; and

b)    their own long association with the claim area in accordance with traditional law and custom; and

c)    having religious, sacred and/or ritual knowledge of the area.

2.     As at the date of this application, the persons referred to above at 1 includes of the following persons who have a connection with the claim area in accordance with traditional laws and customs:

a)    Noona Roundhead;

b)    the spouses Miimiidhaanuu (Peter Mimitjunu or King Peter) and Maggie;

c)    Padalji (Jack Anderson);

d)    Yambii (Alice Yampi);

e)    Wipaana (also known as Wiparna, Noorie Weebunner or Maggie Weebunner);

f)     the spouses Jimmy Teatree and Judaabi (Tutaabii/Nellie Teatree);

g)     Morrel;

h)     Sinclair Beeberwin (father of Don Sinclair);

i)     Tuwarn (Linda Smith);

j)     Thanang (Minnie Walker);

k)     Kileen Ngurrnmpurrna (Kyaleen Numbaarn), mother of Timothy Rundle; and

l)     Toby Willis.

Does Ms Strickland have an interest in the proceeding?

Interest as a Maduwongga person

6    In the affidavit attached to her interlocutory joinder application dated 24 June 2022, Ms Strickland identified that she was the first named applicant in the Maduwongga native title claim (WAD186 of 2017). The Maduwongga claim asserted that the Maduwongga are a “distinct socio-linguistic society with a set of traditional laws and customs relating to traditional land-holding that were different from those of their Western Desert neighbours”. Ms Strickland was here saying that the Maduwongga people and Western Desert people are distinct societies that observe different traditional laws and customs and therefore that, in so far as the Maduwongga claim and Kakarra Part A claim overlap (the Overlap Area), they are conflicting and mutually incompatible.

7    The relevant interest identified pursuant to s 84(5) of the Act in Ms Strickland’s affidavit was her asserted interest in the Overlap Area as a descendent of KB, the apical ancestor upon which her claim to be a Maduwongga native title holder relied. Accordingly, she sought to be joined as a respondent in order to protect that interest being defeated by a determination over the Overlap Area in favour of the Kakarra Part A applicant.

8    On 27 March 2023, subsequent to the filing of Ms Strickland’s interlocutory joinder application and accompanying affidavit, Jackson J handed down his judgment in Strickland on behalf of the Maduwongga Claim Group v State of Western Australia [2023] FCA 270. That decision dealt with the following separate question set out at [3]:

Did [KB] (the grandmother of the applicants in the Maduwongga Application [i.e. this proceeding, application WAD 186 of 2017]) hold rights and interests in those land and waters of the Maduwongga Application which overlap with native title determination application WAD 91 of 2019 (Nyalpa Pirniku) under the normative system of traditional laws and customs of:

(1)    the Western Desert; or

(2)     a distinct land-holding group of which KB's descendants are the only identifiable surviving members?

9    Justice Jackson determined at [8] that “KB held rights and interests in relation to land and waters in the overlap area under the normative system of traditional laws and customs of the Western Desert, and not under the normative system of any distinct land-holding group of which KB's descendants are the only surviving members”. On the basis of this decision, I made orders on 28 April 2023 dismissing the Maduwongga native title determination application.

10    Ms Strickland’s submissions recognise that the Maduwongga claim has been dismissed and makes it sufficiently clear that she no longer presses her joinder application by reference to that interest.

Interest as a Western Desert person

11    Ms Strickland now asserts that she has an interest in the Kakarra Part A claim because she is a descendant of KB who Jackson J in Strickland recognised as holding native title rights under the traditional laws and customs of the Western Desert. However, KB is not included in the list of apical ancestors in the Kakarra Part A claim group description, extracted at [5] above.

12    Ms Strickland made the following assertions at [7]-[8] of her submission:

Ms Strickland’s interest is, as asserted in the Applicant’s Statement of Facts and Contentions, [7], at Annexure “MMS 2” of Ms Strickland’s Affidavit, on the basis that there has been “an unbroken physical and social association with the Claim Area” (which encompassed the area of the Kakarra Part A claim).

As a descendant of KB, Ms Strickland claims that she has observed the laws and customs in relation to the Claim area which are set out at sub-paragraphs 8(a) to (h) inclusive of the Applicant’s Statement of Facts and Contentions and has continued to acknowledge those laws and customs in the manner set out in sub-paragraphs 12(a) to (i).

13    Ms Strickland has not provided any evidence in support of these assertions, including by way of a further affidavit.

14    The applicant to a joinder application has the onus of satisfying the Court of each of the elements in s 84(5). This requires establishing a “factual foundation which demonstrates that a relevant interest is affected”: Sumner v State of South Australia [2014] FCA 534 at [16] (Mansfield J). In the absence of any material in support of her claim, I am not satisfied that Ms Strickland has established that she has an interest to be joined as a respondent to this proceeding pursuant to s 84(5) of the Act.

Will Ms Strickland’s interest (if any) be affected by a determination?

15    Even if I was to accept that Ms Strickland’s bare submission was sufficient to establish the interest now being pressed, what she has failed to establish is how and why that interest would be adversely effected by the grant of the Kakarra Part A application in the terms sought and therefore why it is necessary for Ms Strickland to be joined to the proceeding to protect that interest.

16    Ms Strickland’s contention is essentially that the Kakarra Part A applicant observes the traditional laws and customs of the Western Desert and, as she and her ancestor KB also observe and observed the Western Desert laws and customs, she should be included in the applicant’s claim group. However, if she is a member of the claim group because she falls within the claim group definition extracted above at [5], her interests are already encompassed by the applicant’s claim and the determination of that claim favourable to the applicant would be a determination favourable to her. In these circumstances, it is unclear how her interests would be adversely affected by a determination in favour of the applicant.

17    The unstated premise of her submissions is that the applicant in Kakarra Part A may not recognise that she is part of the claim group. However, Ms Strickland has not provided any evidence that the applicant in Kakarra Part A would seek to exclude her from the claim group if she can establish that she meets the claim group criteria. In fact, the applicant’s submissions and affidavit express a willingness to engage with Ms Strickland as to her asserted rights and interests in the application area.

18    Further, as pointed out by the State, an application to be joined as a respondent to a proceeding under s 84(5) of the Act is ordinarily an inappropriate mechanism to resolve what may be an intramural membership dispute.

19    I dealt with a similar issue in Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia [2022] FCA 114. After reviewing the authorities on this issue, I concluded by saying at [57] that “a preference has been expressed [by the Court] for disputes of that kind to be dealt with post-determination and intramurally in order to reflect a policy preference inferred from the Act”: see also Starkey v South Australia (2011) 193 FCR 450 at [55] and [63] (Mansfield J); Far West Coast at [60] (Mansfield J); Banjima People v State of Western Australia (No 2) (2013) 305 ALR 1 at [528] (Barker J); TR (Deceased) on behalf of the Kariyarra – Pipingarra People v State of Western Australia [2016] FCA 1158 at [35]-[36] (North ACJ).

20    I am therefore not satisfied that Ms Strickland’s interests (which she has not established) would be affected by a determination in this proceeding. Any concerns she may have about her inclusion in the claim group can be addressed intramurally.

21    Finally, and in any event, I do not consider that in the circumstances it would be in the interests of justice to grant the joinder application. As I said in Harrington-Smith at [78]:

The detriment to native title holders of the ongoing dispossession of their lands and waters need not be here recounted. The possibility of that dispossession being extended even if only for a comparably short period in circumstances where the imminent recognition of native title was justifiably anticipated is potentially devastating. I accept the evidence to that effect given by a number of the Darlot claimants including their genuine fears that by reason of further delay several of the claimants may pass away before any native title determination is made. All of that prejudice is irreparable.

22    The applicant in this case made similar contentions to the claimants in Harrington-Smith on the question of detriment. The applicant and the State are ready to submit the claim for a consent determination. As Ms Strickland’s consent would be required for the Court to determine the application by consent if she was joined as a respondent, there is the prospect that a determination of the claim may be significantly delayed. Michael Tucker, one of the Kakarra Part A applicants, has deposed that some of the applicants are in their eighties and any further delays may mean that they pass away before their native title claim is determined. As such, I consider that the interests of justice favour rejecting Ms Strickland’s joinder application.

Conclusion

23    Accordingly, the interlocutory joinder application should be dismissed.

Associate:

Dated:    30 May 2023