Federal Court of Australia

Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 2) [2023] FCA 1060

ORDERS

THE COURT ORDERS THAT:

1.    Order 3 made on 10 September 2020 be varied to the following:

Without leave of the Court, the active participation of Native Title Services Goldfields Limited is to be limited to issues arising in the proceeding which relate to membership of the Marlinyu Ghoorlie native title claim group.

2.    The interlocutory applications dated 12 July 2023 and 25 August 2023 filed by the Fifth Respondent be otherwise dismissed.

3.    The following affidavits filed by the Fifth Respondent be uplifted from the Court file:

(a)    the affidavit of Aubry Lynch affirmed 21 August 2023;

(b)    the affidavit of Timothy Sceghi affirmed 21 August 2023;

(c)    the affidavit of Trevor Donaldson affirmed 21 August 2023; and

(d)    the affidavit of Janice Ann Scott affirmed 21 August 2023.

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    The applicant to this proceeding claims native title rights and interests on behalf of the Karlamaya (Kalamaia) Kapurn (Gubrun, Kaparn) people, also known as Karlaku (Kalaako, Kalarku) people (Karlamaya Kapurn people) in respect of an area located in the Western Goldfields region of Western Australia (the Marlinyu Ghoorlie claim). Broadly described, the claim area takes in Kalgoorlie in the east and extends past Kalannie in the west and Southern Cross to the south.

2    Part of the area the subject of the Marlinyu Ghoorlie claim is also the subject of a second native title application which is made on behalf of the Karratjibbin people (the Karratjibbin claim). The Karratjibbin claim area is wholly within the Marlinyu Ghoorlie claim area. It shares the western boundary of the Marlinyu Ghoorlie claim and extends east past Southern Cross, but does not extend as far as Coolgardie or Kalgoorlie.

3    The Marlinyu Ghoorlie claim and the Karratjibbin claim are set down for trial commencing on 2 October 2023 in respect of separate questions which can be stated as follows:

(a)    But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, land and waters of the claim areas?

(b)    In relation to that part of the claim areas where the answer to (a) above is in the affirmative:

(i)    Who are the persons, or each group of persons, holding the common or group rights comprising the native title?

(ii)    What is the nature and extent of the native title rights and interests?

4    In both proceedings, a number of respondent parties oppose the applicants’ claims on the basis of competing claims to hold native title rights and interests.

5    These reasons concern two interlocutory applications brought by Native Title Services Goldfields Limited (NTSG). On 27 November 2019, NTSG was recognised as a native title service provider for the Goldfields region of Western Australia pursuant to s 203FE of the Native Title Act 1993 (Cth) (NTA). By that recognition, NTSG is funded to perform all of the functions of a representative body which are prescribed by the NTA. With the consent of the Marlinyu Ghoorlie applicant, the State and NTSG, on 10 September 2020 the Court made an order joining NTSG as a respondent to this proceeding, but subject to the following limitation:

Without leave of the Court, the active participation of the Native Title Services Goldfields Limited is to be limited to issues arising in the proceeding which relate to membership of the Marlinyu Ghoorlie native title claim group and the extent of the Marlinyu Ghoorlie claim area within those parts of the application contained within the Goldfields region of Western Australia, as shown on the map at Attachment A to these orders.

6    The first of the two interlocutory applications, dated 12 July 2023, seeks an order removing the limitation on NTSG’s participation as a respondent in this proceeding. That application is supported by an affidavit affirmed on 12 July 2023 by Jeremy Michael Brown who is employed by NTSG as the Deputy Principal Lawyer. The application is also supported by written submissions dated 12 July 2023.

7    In determining the first application, I have also had regard to the original interlocutory application dated 3 July 2020 by which NTSG sought to be joined as a respondent to the proceeding pursuant to s 84(5) of the NTA. That application was supported by an affidavit affirmed on 2 July 2020 by David Michael Lanagan who, at that time, was the Chief Executive Officer of NTSG, and written submissions dated 3 July 2020. That application led to the Court making the orders dated 10 September 2020 by consent of the parties.

8    As stated in NTSG’s written submission, the limitation imposed on NTSG’s participation in this proceeding has two components. The first limits NTSG’s participation to issues which relate to membership of the Marlinyu Ghoorlie claim group. The second limits NTSG’s participation to the extent of the Marlinyu Ghoorlie claim area within the Goldfields region, as shown on the map at Attachment A to the orders made on 10 September 2020 (which I will refer to as the geographic limitation). The reason for the geographic limitation was that the Marlinyu Ghoorlie claim area is partly within the Goldfields region and partly within the South West region (for the purposes of Pt 11 of the NTA) but, at the time the orders were made, NTSG’s responsibilities under s 203FE of the NTA were limited to the Goldfields region. In July 2022, the Commonwealth Government extended the area for which NTSG has responsibility under s 203FE beyond the Goldfields region to also include parts of the South West region. As a result, NTSG now has responsibility under s 203FE for areas which include the whole of the Marlinyu Ghoorlie claim area.

9    The second of the two interlocutory applications, dated 25 August 2023, seeks an order vacating the current trial dates in the proceeding. In the alternative, the application seeks an order partitioning the Marlinyu Ghoorlie claim into Parts A and B, being the areas shown on a map attached to the application and which is reproduced as the annexure to these reasons, and orders that the trial proceed with respect to Part A but the trial dates be vacated with respect to Part B. The area marked as Part B is a triangular area that takes in Kalgoorlie and Coolgardie in the eastern part of the Marlinyu Ghoorlie claim area. The area is not overlapped by the Karratjibbin claim. The second interlocutory application is supported by two affidavits of Mr Brown affirmed on 25 and 31 August 2023 respectively and written submissions dated 31 August 2023.

10    The Marlinyu Ghoorlie applicant opposes both interlocutory applications, save for the removal of the geographic limitation on NTSG’s participation in the proceeding. In support of its opposition, the Marlinyu Ghoorlie applicant relies on an affidavit affirmed on 4 September 2023 by Simon Blackshield, the solicitor for the Marlinyu Ghoorlie applicant, and written submissions also dated 4 September 2023.

11    The State opposes the second interlocutory application, but not the first. In support of its opposition, the State relies on an affidavit affirmed on 4 September 2023 by Sheila Begg, who is currently employed as a Senior Assistant State Solicitor at the State Solicitor's Office, and written submissions dated 4 September 2023.

12    The interlocutory applications were heard on 5 September 2023.

13    The Karratjibbin applicant, the Cooper family respondents and the sixth respondent, Elizabeth Sambo, appeared by counsel at the hearing of the applications. Those parties did not file submissions in advance of the hearing, but each indicated that they did not oppose either application (save that Ms Sambo opposed NTSG’s alternative application to partition the Marlinyu Ghoorlie claim). In brief oral submissions, the Karratjibbin applicant and Ms Sambo submitted that they supported the objective of the Court resolving all claims for native title in the claim area and thereby achieving finality.

14    For the following reasons, I have determined that:

(a)    the geographic limitation to NTSG’s participation in the proceeding should be removed; and

(b)    the interlocutory applications should be otherwise dismissed.

Background to the applications

15    In his affidavit affirmed on 2 July 2020, Mr Lanagan summarised the history of native title applications in the Goldfields region of Western Australia and the circumstances that led to NTSG being funded to perform the functions of a representative body in the Goldfields region in place of the representative body, Goldfields Land and Sea Council Aboriginal Corporation (GLSC). Since 2005, Mr Lanagan had undertaken a number of roles in relation to native title applications in the State of Western Australia, beginning with relevant State departments and then continuing with GLSC through to NTSG.

16    Mr Lanagan deposed that, since the commencement of the NTA, there have been a number of native title determination applications filed in the Goldfields region which have overlapped each other, and which have not progressed to determination or even hearing. Mr Lanagan annexed to his affidavit a map which depicted all historical native title determination applications filed within the central and northern Goldfields region, including over a significant portion of the Marlinyu Ghoorlie claim. The annexure showed 33 applications in total, many dating to 1997 and 1998. Mr Lanagan further deposed that, as part of his roles with GLSC and NTSG, he had met with Aboriginal people who claim to hold native title rights and interests in various parts of the Goldfields region, including the Marlinyu Ghoorlie claim area, and a number of those people had expressed frustration about the history of overlapping claims and the absence of determinations of native title within the Goldfields region.

17    Mr Lanagan deposed that GLSC had ceased to be recognised as a representative body under the NTA on 30 June 2018 because the responsible Minister had concluded that GLSC was not satisfactorily performing one of its facilitation and assistance functions relating to researching and preparing native title claims. After it had ceased to be recognised as a representative body, GLSC was funded to perform the functions of a representative body within the Goldfields region under s 203FE until 30 June 2019. Funding was not continued beyond that date because the funding provider had formed the view that GLSC was not satisfactorily performing some or all of the relevant functions. Those decisions were described in Goldfields Land and Sea Council Aboriginal Corporation v Minister for Indigenous Affairs [2019] FCA 2010. From 30 June 2019, Grant Thornton Australia Limited was funded as a native title services provider on an interim basis. NTSG was appointed as the native title services provider from 27 November 2019.

18    On 3 July 2020, NTSG brought an application to be joined as a party to this proceeding pursuant to s 84(5) of the NTA which 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.

19    In support of its application to be joined as a party to this proceeding, NTSG advanced the following submissions (footnotes omitted):

13.     … NTSG has identified that there is, or may be, a question as to the adequacy of the [Marlinyu Ghoorlie] Claim insofar as it describes the persons who are said to possess native title rights and interests in the Claim area.

14.     Further, NTSG has received requests for assistance to bring overlapping native title claims or in seeking recognition as a native title holder in relation to land and waters in the Claim area, NTSG has not decided whether to provide such assistance. That includes because NTSG is not presently in a position to determine who, if anyone, ought to be provided with that assistance or what form that assistance should take.

15.     In order to progress that matter, and to otherwise perform its functions, NTSG has developed a research project by which the claims made by others to possess native title rights and interests in the Claim area will arise for consideration and which will otherwise seek to identify the persons who hold or may hold native title rights and interests in the Claim area.

16.     It is consistent with the performance of NTSG’s functions and obligation to protect the interests of native title holders to seek to be joined to the proceeding. That protection arises from the ability of NTSG to be aware of, and participate in, the progress of the proceeding whilst its research project is being undertaken.

17.     That is particularly so where the existence of native title rights and interests is not otherwise admitted or conceded, such that it remains open for a determination to be made which recognises that native title does not exist in the Claim area.

18.     In addition to those matters, if it were to be determined that native title rights and interests did exist in the Claim area, NTSG will have ongoing obligations or opportunities to perform its prescribed functions.

19.     The accurate identification of native title holders is directly relevant to NTSG, including where:

19.1.     NTSG has already received representations from its constituents as to the inaccuracy of the Claim;

19.2.     there is a lengthy history of overlapping claims and disputes within the Goldfields region; and

19.3.     there is a level of frustration and concern by constituents of that region as to the lack of recognition of native title in the Claim area.

20.     In that way, NTSG’s application for joinder is not brought on the basis that NTSG represents or is otherwise advancing the interests of third parties. To the contrary, NTSG asserts its own interests as a native title service provider may be affected by a determination in this proceeding.

20    Three matters can be noted about those submissions. First, NTSG submitted that there was a question in the proceeding as to the description of the persons who are said to possess native title rights and interests in the Marlinyu Ghoorlie claim area. Second, NTSG submitted that it had received requests for assistance (from other persons) to bring overlapping native title claims or in seeking recognition as a native title holder in relation to land and waters in the Marlinyu Ghoorlie claim area, it was conducting a research project to assess such claims, and it wished to be joined as a party to the proceeding so that it could be aware of and participate in the progress of the proceeding while its research was being undertaken. Third, NTSG’s application for joinder was not brought on the basis that NTSG represented or was otherwise advancing the interests of any third party.

21    NTSG’s joinder application was the subject of mediation between the parties. The mediation resulted in the parties giving their consent to the form of order ultimately made by Bromberg J on 10 September 2020. By that order, NTSG was joined as a respondent to this proceeding, but subject to the two limitations referred to earlier:

(a)    first, that the active participation of NTSG is to be limited to issues which relate to membership of the Marlinyu Ghoorlie native title claim group; and

(b)    second, that the active participation of NTSG is to be limited to the extent of the Marlinyu Ghoorlie claim area within the Goldfields region of Western Australia.

22    The further procedural history of this proceeding, and the Karratjibbin proceeding, is outlined in Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia [2023] FCA 930 (Dimer No 1) at [21]-[25]. Relevantly, on 5 October 2022, Bromberg J made orders for the determination of separate questions in this proceeding and the overlapping Karratjibbin proceeding and, on 22 December 2022, Bromberg J made timetabling orders for the concurrent hearing of the separate questions in each of the proceedings. As explained in Dimer No 1 (at [3]), the separate questions can be stated as:

(a)    But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, land and waters of the claim areas?

(b)    In relation to that part of the claim areas where the answer to (a) above is in the affirmative:

(i)    Who are the persons, or each group of persons, holding the common or group rights comprising the native title?

(ii)    What is the nature and extent of the native title rights and interests?

23    In accordance with the timetabling orders made by the Court, during April and May 2023 all of the parties filed concise statements describing the facts and issues in relation to the identity of those persons who hold common or group rights comprising the native title in the land and waters of the trial area, and the nature and extent of those rights and interests, for which they contend. NTSG filed its concise statement on 5 May 2023. Relevantly, by its concise statement, NTSG says:

(a)    it does not know how the separate questions should be answered (para 2);

(b)    the persons, or group of persons, holding the common or group rights comprising the native title in the land and waters of those portions of the trial area shown in the attached map as “Area A” (being a part of the claim area and which excludes the area surrounding Kalgoorlie and Coolgardie) are people known as the Karlamaya and Kapurn (para 3); and

(c)    it is facilitating research into portions of the eastern and western quadrants of the trial area (including the whole of the area of overlap between the Marlinyu Ghoorlie and Karratjibbin native title determination applications) which may support the recognition of co-existent native title rights and interests (para 4).

24    On 21 August 2023, NTSG filed four affidavits from deponents, Trevor Donaldson, Timothy Sceghi, Janice Scott and Aubrey Lynch, who claim to hold native title rights and interests within the eastern part of the Marlinyu Ghoorlie claim area under Western Desert laws and customs acknowledged and observed by them. Only one of those deponents, Mr Donaldson, is a respondent in the proceeding. However, Mr Donaldson did not file a notice in accordance with the orders of the Court made on 22 December 2022 indicating that he wished to take an active part in hearing of the separate questions. Since the making of those orders, Mr Donaldson has not taken any step in the proceeding and has not filed a concise statement nor any evidence.

25    The filing of those affidavits by NTSG is not in accordance with the limitation placed on NTSG’s participation in the proceeding and is inconsistent with the submission made to the Court by NTSG when it originally applied to be joined as a party to the proceeding that the joinder was not on the basis that NTSG represents or is otherwise advancing the interests of third parties.

26    Apart from NTSG’s second interlocutory application which seeks the vacation of trial dates in respect of the whole of the proceeding or, in the alternative, the area designated as Part B in its application, the Marlinyu Ghoorlie and Karratjibbin proceedings are ready to proceed to the hearing of the separate questions in accordance with timetabling orders made by the Court, with the hearing of lay evidence to commence in less than 4 weeks, on 2 October 2023.

NTSG’s evidence and submissions

The first application (removal of limitations)

27    As stated earlier, by its first application NTSG seeks the removal of the limitations on its participation in the proceeding imposed by the orders made on 10 September 2020.

28    NTSG advanced the submission that the “basis for a representative body/native title service provider to be a respondent to native title proceedings is well established”, referring to the summary of the jurisprudence relevant to the joinder of a native title service provider by Reeves J in McCarthy on behalf of the Yuggera Ugarapul Applicant v State of Queensland [2020] FCA 1448 at [10]-[11]. Without wishing to be critical, that submission disguises as much as it reveals. Some consideration is given to the joinder of representative bodies to native title proceedings later in these reasons.

29    In respect of the geographic limitation, NTSG adduced evidence showing that, with effect from 1 July 2022, NTSG was appointed to perform representative body functions in place of the South West Aboriginal Land and Sea Council for those parts of the South West region that are not covered by Indigenous Land Use Agreements made for the purposes of the South West Settlement between Noongar People and the State of Western Australia. The area for which NTSG has responsibility now includes the entirety of the Marlinyu Ghoorlie claim. It follows that there is no longer a reason to maintain the geographical limitation on NTSG’s participation, and no party opposed the removal of that limitation.

30    In respect of the “issue” limitation (restricting NTSG’s participation to issues which relate to membership of the Marlinyu Ghoorlie native title claim group), NTSG submitted that the restriction does not align with the framing of the separate question which concerns the holders of native title rights and interests in relation to the land and waters covered by the Marlinyu Ghoorlie native title claim. NTSG submitted that the limitation is an “inappropriate restriction on NTSG’s capacity to participate fully and appropriately in the proceeding”. The premise for that submission appears to be that NTSG’s functions entitle it to participate fully in the proceeding. As discussed below, that premise is not correct.

The second application (vacating the trial dates)

31    NTSG’s second interlocutory application seeks the vacation of trial dates in respect of the whole of the proceeding or, in the alternative, the area designated as Part B in its application.

32    In support of that application, Mr Brown deposed (in his affidavits of 25 and 31 August 2023) to the following facts and circumstances:

(a)    On 24 March 2021, NTSG convened a “Regional information and consultation meeting for people who may hold native title in the Goldfields area”, consistently with its obligations under section 203BJ(d) of the NTA to provide an update about the status of native title matters within the Goldfields region. Following the regional information meeting, NTSG received some general enquires about participation in the Marlinyu Ghoorlie claim as well as specific requests for assistance from a number of persons asserting interests under Western Desert laws and customs, held either by themselves or senior members of their families, within the Marlinyu Ghoorlie claim area.

(b)    In response to the enquiries and requests for assistance, and consistently with its obligations and functions under s 203BJ(b) to identify people who may hold native title, NTSG commissioned Mr Ray Wood to carry out research into the claim area. NTSG deferred decisions about the requests for assistance pending the outcome of the anthropological research being undertaken by Mr Wood. Amongst other issues, Mr Wood was commissioned to provide his opinions about whether certain families and other persons held native title rights and interests within the Marlinyu Ghoorlie claim area. Mr Wood's report was finalised on 30 September 2022. In his report, Mr Wood expressed the opinions that, at effective sovereignty, the Marlinyu Ghoorlie claim area was occupied by a distinct society known as Karlamaya and Kapurn (the latter word meaning “man” or “human being” in the Karlamaya language) (paras 7 to 12) and that there is no evidence that any part of the Marlinyu Ghoorlie claim area was occupied by people of Western Desert origins at effective sovereignty, or that they held proprietary rights in any portion of it (para 347).

(c)    In response to further agitation of Western Desert interests in the eastern portion of the claim area of which NTSG was aware, in January 2023 NTSG conducted an in-house review of the archive of material NTSG received from its predecessor GLSC, relevant to the eastern portion of the Marlinyu Ghoorlie claim area.

(d)    On 27 March 2023, Jackson J delivered judgment in Strickland on behalf of the Maduwongga Claim Group v State of Western Australia [2023] FCA 270 (Strickland) which concerned a native title claim made on behalf of a claim group known as the Maduwongga. The Maduwongga claim overlapped the eastern portion of the Marlinyu Ghoorlie claim, but also overlapped the western part of a native title claim made by a claimant group known as the Nyalpa Pirniku. The judgment concerned the overlap of the Maduwongga claim and the Nyalpa Pirniku claim, which was outside the Marlinyu Ghoorlie claim area. Accordingly, the judgment did not concern the Marlinyu Ghoorlie claim area. Nevertheless, at [1043] of Strickland, Jackson J made the following (obiter) finding with respect to that part of the Maduwongga claim that overlapped the Marlinyu Ghoorlie claim:

Those laws and customs and the identification with country that gives rise to land rights were bound up with tjukurrpa. Tjukurrpa had a normative dimension which could give rise to land 'holding' rights, and there is no useful distinction between a ritual and ceremonial dimension expressed in tjukurrpa and an economic one that inheres in 'land tenure'. In any event, acknowledgement of tjukurrpa and Wati Law in an area is a strong indication that Western Desert laws and customs were acknowledged in that area. Tjukurrpa and Wati Law were acknowledged throughout the Maduwongga claim area, reaching as far west as Coolgardie.

(e)    On 10 May 2023, in light of the above finding made by Jackson J in Strickland and renewed requests for assistance to NTSG from persons asserting that they have rights and interests in the eastern part of the Marlinyu Ghoorlie claim area, NTSG prepared and provided a brief to Dr Scott Cane, an anthropologist, to provide an opinion about (amongst other things):

Whether a system of traditional laws and customs, consistent with traditional laws and customs commonly referred to as those of the Western Desert were acknowledged and observed in any part of the Research Area at effective sovereignty.

(f)    On 13 July 2023, NTSG received a draft of Dr Cane's report. As a consequence of the draft opinions expressed by Dr Cane, NTSG held discussions with different individuals who claim to be senior law people bound by Western Desert laws and customs with particular responsibilities for sites that lie within the eastern part of the Marlinyu Ghoorlie claim area. Following those discussions, NTSG prepared and filed the four affidavits from deponents who claim to hold native title rights and interests within the eastern part of the Marlinyu Ghoorlie claim area under Western Desert laws and customs acknowledged and observed by them.

33    Mr Brown further deposes that NTSG seeks the vacation of the trial dates in order to engage further with persons who claim to hold native title in the eastern part of the Marlinyu Ghoorlie claim area under Western Desert laws and customs and to take instructions about the possible filing of a native title claim on behalf of such persons. It is apparent from Mr Brown’s evidence that no decision has been made by those persons to proceed with a native title determination application, and no decision has been made by NTSG to represent such persons in any such application if it were to be made.

34    NTSG’s written submissions on the application largely emphasised the functions given to it under the NTA, particularly the functions stated in ss 203BJ(b) and (d) which are as follows:

203BJ    Other functions

In addition to the functions referred to in sections 203BB to 203BI, a representative body must:

(a)    …; and

(b)    as far as is reasonably practicable, identify persons who may hold native title in the area for which the body is the representative body; and

(c)    …; and

(d)     as far as is reasonably practicable, inform such of the following as the representative body knows are, in relation to the area:

(i)         registered native title bodies corporate;

(ii)         native title holders;

(iii)         persons who may hold native title;

of any matter that the representative body considers may relate to, or may have an impact upon, native title in the area; and

…

35    NTSG submitted that the functions of a native title service provider/representative body are mandatory, in that s 203BA requires it to use its best efforts to perform the functions set out in Division 11.2 (relying on Quall v Northern Land Council [2018] FCA 989 at [20] per Reeves J; Kemppi v Adani Mining Pty Ltd (No 4) [2018] FCA 1245; 360 ALR 697 at [105] per Reeves J). NTSG argued that, relevantly for performance of its functions under s 203BJ(b), this means that it must do the best it can to carry out these functions from time to time, having regard to its financial and other resources at the relevant time and the information actually or reasonably available to it in the then current circumstances (relying on Kemppi v Adani Mining Pty Ltd (No 2) (2019) 271 FCR 423at [66] per Rares ACJ and Robertson J).

36    NTSG submitted that 203BJ(b) requires NTSG to carry out this function with diligence. The question of the consequences of the identification of potential other native title interest holders is to be resolved either by consensual means with other parties or by the Court. It should not be resolved by exclusion of the information.

37    NTSG submitted that its application to vacate the trial dates and to investigate further the native title claims in respect of the eastern part of the Marlinyu Ghoorlie claim area under Western Desert laws and customs is consistent with the proper performance of its functions under the NTA. It argued that Mr Wood’s report (specifically at paras 372 and 375) left raised questions about the possible co-existence of native title under Western Desert law and customs in the eastern part of the Marlinyu Ghoorlie claim area. Having conducted further research, NTSG says that it is now in possession of evidence that suggests that such native title rights and interests exist and it is duty bound to bring that evidence before the Court.

38    NTSG submitted that its alternative application, to partition the Marlinyu Ghoorlie claim and proceed with Part A in October 2023, overcomes much of the prejudice that would be suffered by the Marlinyu Ghoorlie applicant. NTSG acknowledged that this might result in witnesses giving evidence twice, but the prejudice associated with that could be reduced by allowing witnesses to give the whole of their evidence with respect to the claim area at the hearing in October 2023, and then permit the witnesses to give responsive evidence at a subsequent trial in respect of the Part B area.

Opposition by the Marlinyu Ghoorlie applicant and the State

39    The evidence adduced by the Marlinyu Ghoorlie applicant and the State on the interlocutory applications revealed inconsistencies in the approach that has been adopted by NTSG as a respondent to the proceeding.

40    Immediately after NTSG filed the first interlocutory application on 13 July 2023, Ms Begg (on behalf of the State) sent an email to Mr Brown (on behalf of NTSG), copying the other parties to the proceeding, asking for an explanation of the application and whether NTSG was intending to take an active role in the trial. The email stated:

… it appears that NTSG may be intending to take a substantive role in this proceeding, including perhaps to contend that other (unidentified) persons hold native title rights and interests in part of the claim area. It is also unclear who those persons may be and whether NTSG will appear in a representative capacity, on instruction for them or if it intends to advocate for the recognition of those interests on its own motion.

If the latter, there would appear prima facie to be a number of difficulties in adopting such a course.

In order to consider the State's position on the interlocutory application, we would be grateful if you could provide a clear explanation of what it is intended “NTSG's full and appropriate participation” will be.

41    Mr Brown replied the same day, copying the other parties to the proceeding, stating:

I confirm that it is not NTSG’s intention to take a pro-active role in the proceedings. NTSG's role as a respondent arises from its responsibilities under s203BJ of the Native Title Act 1993 (Cth). NTSG is participating to ensure that the matter is conducted with the benefit of the evidence that NTSG is aware of and/or NTSG has commissioned. It is anticipated that that evidence will be filed by one or other of the Indigenous parties.

NTSG’s participation will be directed towards ensuring that the evidence fairly and properly reflects the outcome of the research we have commissioned with respect to the persons who hold or may hold native title in the claim area. Specifically, NTSG does not anticipate eliciting evidence from lay witnesses and does not intend to be more than minimally involved in the cross examination of parties’ lay or expert witnesses. NTSG’s primary intention is to hear the evidence put by all parties and make submissions at the conclusion of the proceedings. By taking this role in the proceedings, as well as assisting the Court, we expect to be better informed in relation to the roles we have post-determination with respect to persons who hold (or do not hold) native title in our areas of responsibility.

…

NTSG has briefed Dr Scott Cane to prepare a report in relation to the extent of Western Desert traditional rights and interests with regard to the Marlinyu Ghoorlie claim area. This brief was issued in large part in response to the comments of Justice Jackson in Strickland on behalf of the Maduwongga Claim Group v State of Western Australia [2023] FCA 270, in particular at [1043] and [1048]. NTSG has also commissioned other experts to conduct anthropological research in other areas within the Marlinyu Ghoorlie claim area, in the course of considering requests for assistance by other persons. It is not NTSG’s intention to contend that any such persons hold native title rights and interests within the Marlinyu Ghoorlie claim area – the putting of such a case is a matter for those persons. NTSG does not intend, and does not have the resources, to act for any overlapping claimant group. It is NTSG’s intention only to ensure that the evidence which NTSG has commissioned is appropriately before the court and that parties in the proceeding are given an opportunity to provide their view of that evidence.

42    Contrary to the statements made by Mr Brown in his email, on 21 August 2023 NTSG proceeded to file the four affidavits that had been prepared by it.

43    The Marlinyu Ghoorlie applicant opposes the first interlocutory application on the basis that it would be manifestly unjust if NTSG were allowed at this very late stage, only 4 weeks from the commencement of the October 2023 trial, to depart from the position it has taken since September 2020 (by order of the Court) and to pro-actively advance a case that other persons hold native title in the claim area under Western Desert law and custom, being a case that neither it nor any other party has advanced in the proceeding to date. The Marlinyu Ghoorlie applicant further submits that, in advancing such a case, NTSG would be acting inconsistently with its responsibilities to exercise its functions and powers fairly and not prioritise the interests of one group of Aboriginal people over another.

44    The Marlinyu Ghoorlie applicant opposes the second interlocutory application on the basis that it would cause significant prejudice to the claim group. The Marlinyu Ghoorlie applicant submitted that it has been actively preparing for trial for more than 8 months, and the trial is now only 4 weeks away. Vacating the trial dates would delay the resolution of native title over the Kalgoorlie area indefinitely, meaning that some members of the claim group (including Brian Champion Snr) would likely never see a determination over that area. NTSG’s alternative application to partition the claim would lead to the applicant’s witnesses giving evidence, and being subjected to cross-examination, twice.

45    The State opposes the second interlocutory application having regard to the principles stated in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (Aon) and the overarching purpose of civil procedure stated in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The State submitted that NTSG has had ample opportunity to deal with the issues it now seeks to raise. To vacate the trial dates at this time will cause unfair prejudice to the parties.

46    The State also objects to the filing by NTSG of the four affidavits of persons who claim to hold native title in the eastern part of the Marlinyu Ghoorlie claim area under Western Desert laws and customs. The State submitted that the filing of that evidence, and the attempt by NTSG to advance a case that such persons hold or may hold native title rights and interests in the eastern part of the Marlinyu Ghoorlie claim area under Western Desert laws and customs, is inconsistent with NTSG’s concise statement and, as a consequence, both irrelevant to the issues to be determined at the trial as defined by the concise statements that have been filed and unfair to the other parties to the proceeding.

Consideration

Application to vacate the trial dates

47    It is convenient to address first the application to vacate the trial dates. For the following reasons, that application should be dismissed.

48    Section 37M(1) of the FCA Act stipulates that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Section 37M(2) stipulates that the overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner; and

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

49    Section 37N(1) stipulates that the parties to a civil proceeding before the Court must conduct the proceeding in a way that is consistent with the overarching purpose.

50    Aon concerned an application by the plaintiff, on the third day of a four-week trial of a proceeding that had been on foot for two years, for an adjournment and for leave to amend its statement of claim to add a substantial new claim against the defendant. In respect of that application, French CJ said (at [5]):

In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.

51    The plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) emphasised the importance of the principles stated in r 21 of the Court Procedure Rules 2006 (ACT), which are relevantly the same as those stated in s 37M of the FCA Act. The plurality observed that those principles of case management are now an accepted aspect of the system of civil justice administered by courts in Australia – the rules concerning civil litigation are no longer to be considered as directed only to the resolution of the dispute between the parties to a proceeding, but recognising that the achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants (at [92] and [93]).

52    Over the past 25 years, there have been numerous native title determination applications that have been made in respect of the area that is now the subject of the Marlinyu Ghoorlie claim. It is neither possible nor necessary to attempt any enquiry as to the reasons that most of those applications did not proceed to trial. It is safe to conclude, however, that Aboriginal persons who believe that they hold native title rights and interests in the claim area have had a long period in which to bring a claim to Court.

53    The Marlinyu Ghoorlie application was filed on 22 December 2017. It was notified in accordance with the requirements of the NTA. The claim group has waited almost 6 years to have its case heard by the Court. They have prepared their case for trial on the separate questions, and have filed lay and expert evidence. Evidence has also been prepared by the Karratjibbin applicant and by the State. The Marlinyu Ghoorlie and Karratjibbin claims are ready to be heard on the separate questions. The vacation of the trial dates would cause at the very least material prejudice to the Marlinyu Ghoorlie claim group. It is an ever present reality in native title cases that members of the claim group may die before the claim is heard and determined by the Court. The prejudice is not alleviated by NTSG’s alternative proposal to partition the Marlinyu Ghoorlie claim. Indeed, partitioning the claim may increase the prejudice. It is very likely that witnesses would need to give evidence twice. While witnesses could initially give evidence with respect to the whole of the claim area (including Part B), they will not know what issues may emerge with respect to Part B. It is highly likely that they will need to give evidence twice and, as submitted by the Marlinyu Ghoorlie applicant, be cross-examined twice. There is always the prospect that a witness may die before Part B of the claim is heard.

54    NTSG was appointed as the native title services provider for the Goldfields region from 27 November 2019, nearly 4 years ago. At the time of bringing an application to be joined as a respondent to the proceeding in mid-2020, NTSG informed the Court that it had received requests for assistance to bring overlapping native title claims, but it had not decided whether to provide such assistance and that NTSG had developed a research project with respect to the claims made by others to possess native title rights and interests in the claim area. NTSG also informed the Court that its application for joinder was not brought on the basis that NTSG represented or was otherwise advancing the interests of any third party.

55    NTSG subsequently commissioned Mr Ray Wood to carry out research into the claim area. Mr Wood provided his report to NTSG on 30 September 2022. As noted earlier, in his report, Mr Wood expressed the opinions that, at effective sovereignty, the Marlinyu Ghoorlie claim area was occupied by a distinct society known as Karlamaya and Kapurn (the latter word meaning “man” or “human being” in the Karlamaya language) (paras 7 to 12) and that there is no evidence that any part of the Marlinyu Ghoorlie claim area was occupied by people of Western Desert origins at effective sovereignty, or that they held proprietary rights in any portion of it (para 347).

56    I do not accept NTSG’s submission that Mr Wood’s report raised the possibility of co-existent native title rights and interests. In my view, that is not a fair reading of Mr Wood’s report. At paragraph 372, Mr Wood stated:

A final question is, would rights of some order in Karlamaya Kapurn country be acquired by immediate Western Desert neighbours who, for example, frequently visited the MG claim area for drought relief or to take part in ceremonies there? In such a case, my opinion is that these are not independently sourced rights in the native title sense, but derivative; that is, their proprietary basis in law and custom is the native title of the Karlamaya owners who extended hospitality to them.

57    Although it is not necessary to make any final determination of what Mr Wood meant by that statement, it appears to refer to “reciprocity-based rights” by which a person or group may have rights or interests in land or waters with the permission of the native title holders: see the recent discussion of those principles by the majority (Rangiah and Charlesworth JJ) in Stuart v State of South Australia [2023] FCAFC 131 at [204]-[208]. As the majority there explained, such rights or interests are not native title rights or interests within s 223 of the NTA. Mr Wood refers to the rights of Western Desert neighbours that are based on the “native title of the Karlamaya owners who extended hospitality to them”.

58    On 5 October 2022, orders were made by the Court for the determination of the separate questions and, on 22 December 2022, timetabling orders were made for the concurrent hearing of the separate questions in each of the proceedings.

59    At no time did NTSG indicate that it intended to adduce evidence in the proceeding or advocate for one group’s interests over another. NTSG’s concise statement, filed on 5 May 2023, stated that NTSG does not know how the separate questions should be answered. The concise statement also stated that NTSG was facilitating research into portions of the eastern and western quadrants of the trial area which may support the recognition of co-existent native title rights and interests. In my view, that statement should not have been included in the concise statement. The statement does not advance any contention relevant to the issues that are before the Court in the Marlinyu Ghoorlie and Karratjibbin proceedings. It is merely a speculative statement about the possibility of the existence of other interests. Further, and more importantly, the statement fails to explain how NTSG expected that such further research would be completed in a manner that would assist the Court in the forthcoming trial. At that point in time (May 2023), NTSG had been the native title service provider for the Goldfields region for more than 3 years. It had undertaken research, commissioning Mr Wood’s report, and the research supported the claim that has been made by the Marlinyu Ghoorlie applicant.

60    On 13 July 2023, immediately after bringing the first interlocutory application, NTSG confirmed to the State, copying the Marlinyu Ghoorlie applicant (and the other parties to the proceeding), that NTSG did not intend to take a pro-active role in the proceeding and did not intend to file evidence. NTSG also stated that it had briefed Dr Scott Cane to prepare a report in relation to the extent of Western Desert traditional rights and interests with regard to the Marlinyu Ghoorlie claim area. NTSG said that the brief was issued “in large part in response to the comments of Justice Jackson in Strickland on behalf of the Maduwongga Claim Group v State of Western Australia [2023] FCA 270, in particular at [1043] and [1048]”. NTSG also said that it has commissioned “other experts to conduct anthropological research in other areas within the Marlinyu Ghoorlie claim area, in the course of considering requests for assistance by other persons”. NTSG reiterated, though, that it was not its intention to contend that any such persons hold native title rights and interests within the Marlinyu Ghoorlie claim area and that the putting of such a case is a matter for those persons.

61    I do not accept that the statements made by Jackson J in Strickland provide any proper basis for NTSG undertaking further research and briefing Dr Cane, far less seeking to vacate the trial dates in this proceeding. The question being determined in Strickland did not concern native title rights and interests in the Marlinyu Ghoorlie claim area. It follows that what was said at paragraph 1043 with respect to the Marlinyu Ghoorlie claim area can only be understood as the effect of evidence given in Strickland.

62    Prior to the decision in Strickland on 27 March 2023, NTSG had had ample opportunity to conduct research with respect to the Marlinyu Ghoorlie claim area, and indeed had access to a long history of other work that had been done with respect to the claim area. It had briefed Mr Wood to provide an opinion. Although no evidence was given by NTSG about discussions it held with other potential claimants since November 2019, it would be expected that such discussions were held. In any event, there has been ample time to hold such discussions and make decisions about providing support to any such potential claimants. Nothing had emerged over that time until now, on the eve of trial.

63    On an unknown date following the publication of reasons in Strickland, NTSG commissioned “documentary research” from Dr Cane. A copy of the instructions given to Dr Cane were not adduced in evidence by NTSG. Dr Cane produced a report on 13 July 2023. However, that report was not shown to the other parties until Mr Brown filed his affidavit on 25 August 2023 in support of the application to vacate the trial dates.

64    On 21 August 2023, immediately prior to making its application to vacate the trial dates, NTSG filed four affidavits from persons who claim to hold native title rights and interests in the eastern part of the Marlinyu Ghoorlie under Western Desert laws and customs. The filing of those statements contradicted assurances given by NTSG one month earlier that it would not be filing evidence in the proceeding.

65    The position adopted by NTSG is riddled with contradictions. On the one hand, it contends (through its concise statement) that it does not know the answer to the separate questions and that it is not representing the interests of any claim group or potential claim group. It has also stated that it does not intend to adduce evidence in the proceeding. On the other hand, it commissioned a second anthropological report that appears to conflict with the first anthropological report that it commissioned, and has now filed evidence that appears to advocate for native title rights and interests that conflict with those of the Marlinyu Ghoorlie applicant.

66    It can be accepted that NTSG has important functions to perform under the NTA as the native title service provider in the area covered by the Marlinyu Ghoorlie claim. Those functions include to identify persons who may hold native title in that area and, as far as is reasonably practicable, inform such persons of any matter that NTSG considers may relate to, or may have an impact upon, native title in the area. However, in so far as NTSG is a respondent to this proceeding, it is bound by the principles that govern the conduct of proceedings in this Court. Most importantly, it is bound by s 37N(1) to conduct the proceeding in a way that is consistent with the overarching purpose.

67    The evidence discloses that NTSG wishes to vacate the trial dates so that it can further consult with potential native title claimants and determine whether to provide assistance to them to bring a native title determination application. As submitted by the State, NTSG has not even determined whether assistance will be given and does not know whether any such native title determination application will ultimately be made.

68    Having regard to the foregoing, and weighing all of the considerations, vacating the trial dates at this time is not in the interests of justice. The delay to the trial will cause unfair prejudice to the Marlinyu Ghoorlie applicant and the State. It will also cause prejudice to the efficient conduct of the Court’s business and waste public resources. For those reasons, the application should be dismissed.

Application to vary the terms of NTSG’s participation in the proceeding

69    As set out earlier in these reasons, NTSG brought an application in July 2020 to be joined as a party to this proceeding pursuant to s 84(5) of the NTA, claiming that its interests may be affected by a determination in the proceeding. In submissions accompanying that application, NTSG said that its application for joinder was not brought on the basis that NTSG represented or was otherwise advancing the interests of any third party. Rather, it claimed that its interests may be affected because it had received requests for assistance (from other persons) to bring overlapping native title claims or in seeking recognition as a native title holder in relation to land and waters in the Marlinyu Ghoorlie claim area, it was conducting a research project to assess such claims, and it wished to be joined as a party to the proceeding so that it could be aware of and participate in the progress of the proceeding whilst its research was being undertaken.

70    The parties attended mediation concerning NTSG’s application and, following the mediation, the parties consented to NTSG being joined subject to the limitation confining the scope of its participation. An order of the Court to that effect was then made by consent.

71    NTSG now seeks to remove that limitation. In its written submissions, NTSG submitted that the limitation does not align with the framing of the separate question which concerns the holders of native title rights and interests in relation to the land and waters covered by the Marlinyu Ghoorlie native title claim. NTSG submitted that the limitation is an “inappropriate restriction on NTSG’s capacity to participate fully and appropriately in the proceeding”.

72    The role that NTSG seeks to perform in the forthcoming hearing is unclear. As noted earlier in these reasons, there are significant contradictions in the stated position of NTSG. At the hearing, NTSG was unable to clarify the role that it sought to perform in the hearing. It indicated that it may apply to amend its concise statement, but was unable to inform the Court as to the nature of any proposed amendment. It also indicated that it may give consideration to withdrawing as a party to the proceeding.

73    In my view, the lack of clarity over NTSG’s interests in, and participation in, this proceeding is symptomatic of a broader issue concerning the proper role of representative bodies in native title proceedings.

74    Representative bodies are given important functions and powers under Pt 11 of the NTA. Those functions and powers are, however, subject to statutory limitations and conditions.

75    Relevantly for present purposes, representative bodies are given the facilitation and assistance functions referred to in section 203BB. Those functions are defined in s 203BB(1) as follows:

The facilitation and assistance functions of a representative body are:

(a)     to research and prepare native title applications, and to facilitate research into, preparation of and making of native title applications; and

(b)     to assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to the following:

(i)     native title applications;

(ii)     future acts;

(iii)     indigenous land use agreements or other agreements in relation to native title;

(iv)     rights of access conferred under this Act or otherwise;

(v)     any other matters relating to native title or to the operation of this Act.

76    Representative bodies are also given the functions listed in s 203BJ which include, as far as is reasonably practicable:

(a)    to identify persons who may hold native title in the area for which the body is the representative body; and

(b)    to inform registered native title bodies corporate, native title holders and persons who may hold native title in relation to the area (to the extent they are known by the representative body) of any matter that the representative body considers may relate to, or may have an impact upon, native title in the area.

77    In being joined as a party to this proceeding, and in seeking the removal of the limitation on its role in the proceeding, NTSG has relied on its facilitation and assistance functions and the additional functions under s 203BJ.

78    The facilitation and assistance functions are subject to a number of statutory limitations or conditions, including the following:

(a)    A representative body must not perform its facilitation and assistance functions in relation to a particular matter unless it is requested to do so: s 203BB(2).

(b)    If the representative body is requested to represent a registered native title body corporate or a person who holds or may hold native title in relation to a particular matter that relates to particular land or waters, but is already representing another body or person in relation to one or more other matters that relate wholly or partly to that land or those waters, the representative body must not represent the new body or person without the consent of the original body or person: s 203BB(4).

(c)    The representative body must consult with, and have regard to the interests of, any registered native title bodies corporate, native title holders or persons who may hold native title who are affected by the matter: s 203BC(1)(a).

(d)    If the matter involves the representative body representing any registered native title bodies corporate, native title holders or persons who may hold native title who are affected by the matter, the representative body must be satisfied that such bodies corporate, native title holders or persons understand and consent to any general course of action that the representative body takes on their behalf in relation to the matter: s 203BC(1)(b).

79    More generally, a representative body is also required to perform its functions in a manner that ensures that its organisational structures and administrative processes operate in a fair manner, having particular regard to, amongst other things, the opportunities for the Aboriginal peoples or Torres Strait Islanders for whom it might act to participate in its processes and its procedures for making decisions and for reviewing its decisions: s 203BA(2)(c)(iii).

80    It can be seen that the statutory limitations and conditions imposed on representative bodies are designed to ensure that, in broad terms, representative bodies act in relation to specific matters only when requested to do so, representative bodies consult with all persons who hold or may hold native title rights and interests, and representative bodies have procedures to ensure fairness between such persons in decision-making.

81    None of the above functions contemplate or necessitate a representative body becoming a party to native title proceedings. The functions are to assist Aboriginal peoples and Torres Strait Islanders living in the area for which the representative body is responsible to bring native title applications or to participate effectively in consultations, mediations, negotiations and proceedings relating to native title applications, future acts, indigenous land use agreements or other agreements in relation to native title and rights of access conferred under the NTA, or otherwise. A representative body is empowered to assist Aboriginal peoples and Torres Strait Islanders in making native title applications and to represent the applicants. Such representation does not, however, require the representative body to become a party to the native title proceeding. The relevant party is the applicant whom the representative body represents.

82    Although the above functions do not contemplate or necessitate a representative body becoming a party to native title proceedings, s 84(3) of the NTA permits a representative body to become a party to a native title proceeding as of right by giving notice to the Court within the notification period determined under s 66. If the representative body does not give notice under s 84(3), it may subsequently apply to become a party under s 84(5). Section 84(5) empowers the Court to join a person as a party 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.

83    In a series of cases decided in 2002, the Court found that the relevant representative body had an interest that may be affected by a determination in the native title proceeding by reason of the fact that the representative body was required to exercise functions under Pt 11 of the NTA and those functions are more effectively exercised as a party to the proceeding: see Bissett v Minister for Land and Water Conservation (NSW) [2002] FCA 365 (Bissett) at [17]-[24] (Tamberlin J); Gale v New South Wales Minister for Land & Water Conservation [2002] FCA 972 at [5] (Madgwick J); Woodridge on behalf of the Gomilaroi People v Minister for Land and Water Conservation (NSW) (2002) 122 FCR 190 at [13] (Hill J).

84    At the time, support for that conclusion was not universal. In Munn (on behalf of the Gunggari People) v State of Queensland [2002] FCA 78 (Munn), Emmett J expressed doubt, but did not decide, whether a representative body can properly be joined pursuant to s 84(5) (at [16]-[17]). In that case, Queensland South Representative Body Aboriginal Corporation applied to be joined as a party in order to represent the Kooma people who claimed native title interests in the land in question. Justice Emmett observed that if the Kooma people were joined, the need for Queensland South to be joined may be obviated (at [18]). His Honour adjourned the application to enable an application for joinder to be made by the Kooma people (at [19]). In a later decision, Emmett J accepted that the weight of authority supported the conclusion that a representative body has an interest within the meaning of s 84(5): see Brierley on behalf of the Walbunja People v Minister for Land & Water Conservation (NSW) [2002] FCA 1209 at [2]-[4]. In Kooma People v State of Queensland [2002] FCA 86, decided two days after Munn, Drummond J refused an application by a representative body for joinder pursuant to s 84(5) on discretionary grounds in circumstances where there was little evidence as to how joinder would further the performance of the body’s statutory functions (at [18]), and where it appeared that the representative body had taken a partisan position in the relevant proceeding by supporting a particular faction within the claimant group (at [21]). His Honour observed that, far from facilitating the representative body’s functions, joinder may significantly impede the performance of its functions (at [21]).

85    By and large, single judges of the Court have followed the 2002 cases without further consideration of the interest asserted by the representative body, and the contested issue has been confined to whether joinder is in the interests of justice: see Simms v Minister for Land and Water Conservation [2002] FCA 15; 193 ALR 257 at [13]-[24] (Lindgren J); Connelly on behalf of the Mitakoodi and Mayi People (No 1) [2009] FCA 1181 (Connelly) (Dowsett J); Edwards on behalf of the Wongkumara People v State of Queensland [2014] FCA 282 (Edwards) at [15]-[27] (Reeves J); Clancy on behalf of the Wulli Wulli People #2 v State of Queensland [2017] FCA 869 at [25]-[41] (Collier J).

86    In deciding to become a party to a native title proceeding, a representative body assumes the usual obligations of a litigant. Those obligations include to conduct the proceeding in a way that is consistent with the overarching purpose (as per s 37N of the FCA Act), to abide by the requirements of procedural fairness and appropriately disclose to the other parties the case it will seek to make at trial (if any), and to comply with the implied undertaking to use documents provided to it in the course of the proceeding (and pursuant to the compulsory processes of the Court) only for the purposes of the proceeding (as per Home Office v Harman [1983] 1 AC 280 and Hearne v Street (2008) 235 CLR 125). As stated earlier, the 2002 cases concluded that the relevant representative body had an interest that may be affected by a determination in the native title proceeding by reason that the functions of the representative body were more effectively exercised as a party to the proceeding. The basis for that conclusion was that, as a party, the representative body would be able to receive documents filed in the proceeding which would assist the body in its facilitation and assistance functions and the additional functions under s 203BJ. The assumption appeared to be that the representative body could use documents filed in the proceeding for the purposes of researching native title rights and interests that might be held by other persons. The cases do not consider whether and in what circumstances the use of documents filed in the proceeding in that manner would be consistent with the implied undertaking.

87    The potential for a representative body to be placed into a position of conflict by reason of being a party to a native title proceeding, and the lack of clarity over a representative body’s proper role as a party to a native title proceeding, has been raised and discussed in a number of the cases including Connelly and Edwards. In Connelly, Dowsett J remarked (at [2]-[3]):

2    I have given consideration to the grounds for resisting the application advanced on behalf of the applicant, primarily that there is no apparent immediate role for Queensland South to perform, and there is a risk of its being put in a conflict situation by virtue of the fact that it has previously acted for the applicant and may have confidential information. It is, of course, necessary that there be no abuse of confidential information obtained in the course of acting in this matter, but given the limited progress which has occurred, it is unlikely that there is any significant amount of confidential information. In any event I am willing to rely upon the professionalism of the relevant legal advisers and employees of Queensland South in order to avoid any problem in that regard.

3    As to the question of its role, that will be determined by its responsibilities under the Act. Having observed the way in which Queensland South has performed its responsibilities as a representative body since its relatively recent inception, I have no doubt that it will participate in the proceedings only in a constructive way, and in a way designed to serve the public interest and the interests of indigenous people generally. …

88    None of the parties in this proceeding advanced an argument that Bissett and the cases which have followed it were wrongly decided and the present application does not require any consideration of that question. The foregoing discussion of the legislative framework governing the functions of representative bodies and the cases that have considered joinder applications by representative bodies is intended to highlight four matters. First, joinder as a party to a proceeding is not a necessary step to be taken by a representative body. Second, joinder may or may not assist a representative body to perform its statutory functions. Third, joinder imposes the usual obligations of a litigant on the representative body. Fourth, joinder may place a representative body into a position of conflict with respect to the Aboriginal peoples or Torres Strait Islanders for whom it is a representative body.

89    Having regard to the foregoing considerations, I am not satisfied on the present application that the current limitation placed on NTSG’s participation in this proceeding should be removed. Indeed, I am far from satisfied that NTSG ought to remain as a party to the proceeding. The role that NTSG seeks to play in the proceeding is wholly unclear. In the last month, shortly before trial, it has taken steps to adduce lay evidence apparently in support of a competing native title interest without giving any advance notice to the Marlinyu Ghoorlie applicant that it would seek to advance such a case at trial. That action is procedurally unfair. Preservation evidence has already been received by the Court earlier this year from Mr Champion and Mr Sambo without any notice being given by NTSG about the possible competing claim. As submitted by the State:

(a)    since at least 2021, NTSG has been aware of claims as to the existence of native title rights and interests in the Marlinyu Ghoorlie claim area that are said to be derived from Western Desert laws and customs;

(b)    NTSG sought and received an expert report about those claimed rights and interests;

(c)    NTSG apparently decided not to provide assistance to, or agree to act for, any person who claimed those rights and interests despite being requested to do so and also did not gainsay or otherwise seek any supplementary opinion from Mr Wood;

(d)    in the proceeding, NTSG has not pleaded a case relevant to these issues and does not have any instruction to act for or represent any such persons, and yet NTSG seeks to adduce lay evidence about such matters;

(e)    NTSG did not cross-examine Mr Champion or Mr Sambo or put them (or the party who led their evidence) on notice about these issues; and

(f)    NTSG does not know whether the persons asserting native title rights and interests under Western Desert law and custom will authorise the making of a native title application.

90    The position is entirely unsatisfactory. In my view, removing the current limitation on NTSG’s involvement in the proceeding will only exacerbate an already unsatisfactory state of affairs. For that reason, the first application will be dismissed save for the removal of the geographic limitation on NTSG’s participation.

91    As a consequence of that decision, I will also order that the four affidavits that have been filed in the proceeding by NTSG be uplifted from the Court file. The filing of those affidavits is outside the scope of NTSG’s permitted participation in the proceeding.

Costs of the application

92    The Marlinyu Ghoorlie applicant submitted that NTSG should be ordered to pay the other parties' costs of the second application (seeking to vacate the trial dates) on an indemnity basis. The Marlinyu Ghoorlie applicant argued that the timing of the application was manifestly unreasonable and in clear violation of the overarching purpose. Further, NTSG’s relevant acts are clear examples of “unreasonable” acts which fall within s 85A(2) of the NTA.

93    At the hearing, the State confirmed that it did not seek its costs of the application. The other parties supported NTSG’s application.

94    NTSG submitted that it brought the application in the discharge of its statutory functions and the application was not unreasonable.

95    Section 85A(2) provides that the Court may order a party to pay the costs of another party if the Court is satisfied that the party has, by any unreasonable act or omission, caused the second party to incur costs in connection with the institution or conduct of the proceeding.

96    In my view, the question of costs is finely balanced. I have earlier concluded that vacating the trial dates is not in the interests of justice and that delaying the trial will cause unfair prejudice to the Marlinyu Ghoorlie applicant and the State. I have also observed that NTSG’s position in the proceeding is riddled with contradictions. Nevertheless, I am not satisfied that NTSG’s conduct in making the application is so unreasonable that it should be burdened with an order for costs. I accept that a representative body is faced with difficult choices in seeking to advance the interests of all Aboriginal peoples or Torres Strait Islanders for whom it is a representative body. Whilst many aspects of NTSG’s conduct in making the application are problematic, I do not consider that it has acted unreasonably in seeking to raise these matters with the Court.

97    For those reasons, I will not make any orders as to costs.

Associate:

Dated:    7 September 2023

ANNEXURE

SCHEDULE OF PARTIES

No: WAD647/2017

Federal Court of Australia

District Registry: Western Australia

Division: General