Federal Court of Australia

Antakirinja Matu-Yankunytjatjara Aboriginal Corporation RNTBC v State of South Australia [2023] FCA 1292

ORDERS

THE COURT ORDERS THAT:

1.    The application of Dawn Margaret Brown dated 10 July 2023 seeking to be joined as a respondent to the proceeding be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    In this proceeding, the Antakirinja Matu-Yankunytjatjara Aboriginal Corporation RNTBC (AMYAC) has made an application for a determination of compensation under s 61(1) of the Native Title Act 1993 (Cth) (NTA).

2    The application area falls within the external boundary of the native title determination made by consent on 11 May 2011 in proceeding SAD 6007 of 1998 as recorded in Lennon on behalf of the Antakirinja Matu-Yankunytjatjara Native Title Claim Group v The State of South Australia [2011] FCA 474 (AMY native title determination area). As part of that determination, the Court made orders that:

(a)    for the purposes of s 56 of the NTA, the native title is not to be held in trust (and hence the native title is held by the common law holders); and

(b)    for the purposes of s 57(2) of the NTA, the AMYAC is to be the prescribed body corporate to perform the functions mentioned in s 57(3) (and hence AMYAC acts as agent or representative of the common law holders in respect of matters relating to native title and compensation under the NTA).

3    By interlocutory application dated 10 July 2023, Dawn Margaret Brown sought an order permitting her to file a “Further Amended Form 5”. The application was supported by an affidavit affirmed by Ms Brown on 28 June 2023. In the affidavit, Ms Brown deposed that:

(a)    she did not state her interests in the Antakirinja Matu-Yankunytjatjara native title claim area sufficiently when filing her Form 5 on 5 May 2023;

(b)    she subsequently realised that she had mis-filed “some” of her original Form 5; and

(c)    she wished the Court to accept her amended Form 5 as attached to her affidavit.

4    Ms Brown was not legally represented on her application.

5    The Court does not have power to make the specific order sought by Ms Brown. The AMYAC compensation claim was notified by the Native Title Registrar in accordance with s 66 of the NTA from 22 February to 22 May 2023. Under s 84(3) of the NTA, any person who claimed to hold native title in relation to the claim area or whose interests may be affected by a determination in the proceeding was entitled to notify the Federal Court within the period of notification and thereby become a party to the proceeding. By reg 6 of the Native Title (Federal Court) Regulations 1998 (Cth), a notice under s 84(3) may be given to the Court in accordance with Form 5 (contained in the Schedule to the Regulations). However, the Court has no power to vary the effect of s 84(3) and accept a Form 5 given by Ms Brown outside of the notification period that is determined in accordance with s 66 of the NTA.

6    Under s 84(5), though, the Court is empowered to 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 proceeding and it is in the interests of justice to do so. In the circumstances, it is appropriate to treat Ms Brown’s interlocutory application to file an amended Form 5 as an application to be joined to the proceeding under s 84(5). I will therefore consider Ms Brown’s application on that basis.

7    Ms Brown’s application is opposed by the AMYAC, which filed written submissions in opposition on 28 September 2023 and an affidavit affirmed by its solicitor, Timothy James Wooley, on 28 September 2023. The State neither supports nor opposes the application but, to assist the Court, filed written submissions on 29 September 2023 by way of background and as to matters of legal principle. I have been greatly assisted by the submissions that were filed. The Commonwealth also informed the Court that it neither consents to nor opposes the application but notes and adopts the matters of legal principle referred to by the State in its written submissions.

8    By way of reply, on 13 October 2023 Ms Brown filed separate submissions responding to each of the AMYAC and the State, and a further affidavit affirmed by her on 13 October 2023.

9    The application was heard on 26 October 2023.

10    For the reasons that follow, I will not make an order joining Ms Brown to the proceeding and will dismiss her interlocutory application.

Background

11    On 11 May 2011, the Court made the AMY native title determination by consent. In that determination, the common law holders of the native title were described as follows:

Under the relevant traditional laws and customs of the Western Desert Bloc, the native title holders comprise those Aboriginal people who have a spiritual connection to the Determination Area and the Tjukurpa associated with it because:

(a)    the Determination Area is his or her country of birth (also reckoned by the area where his or her mother lived during the pregnancy); or

(b)     he or she has had a long-term association with the Determination Area such that he or she has traditional geographical and religious knowledge of that country; or

(c)     he or she has an affiliation to the Determination Area through a parent or grandparent with a connection to the Determination Area as specified in sub-paragraphs (a) or (b) above;

and are recognised under the relevant Western Desert traditional laws and customs by other members of the native title claim group as having rights and interests in the Determination Area.

12    As part of the determination, the AMYAC was appointed as the registered native title body corporate which acts as agent or representative of the common law holders.

13    This proceeding was commenced on 21 April 2022. As noted above, the AMYAC claims compensation, on behalf of the common law holders, for a large number of acts that have taken place within the external boundaries of the AMY native title determination.

14    Before filing the compensation claim, AMYAC consulted with and obtained the consent of the common law holders to do so. That was done at meetings held on 18 and 19 November 2021. The AMYAC prepared a certificate concerning its decision to make a compensation application in accordance with reg 9 of the Native Title (Prescribed Body Corporate) Regulations 1999 (Cth).

15    The compensation claim was notified by the Native Title Registrar on 22 February 2023. The notice specified 22 May 2023 as the date by which an interested person could file a Form 5 with the Court to become a party to the proceeding.

16    In his affidavit, Mr Wooley deposed to his belief that Ms Brown is a common law holder of native title under the AMY native title determination. In that regard, Mr Wooley deposed to the following matters:

(a)    Mr Wooley was the solicitor for the applicant in relation to the AMY native title claim. He has continued to act as a solicitor for AMYAC since the claim was determined.

(b)    Evidence provided by the native title applicant to the State and the Court in support of the AMY native title claim included a set of 21 genealogies prepared by anthropologist Sandra Jarvis dated 15 May 2008 which identified the persons collectively comprising the common law holding group. One of those genealogies was "Genealogy 6 - (Descendants of Anupulyuru/Diana), Members of the Brown Family". This genealogy indicates that Ms Brown's maternal grandmother, Diana Anpulyuru, lived in Bulgunnia within the AMY native title determination area and that her maternal grandfather, Louie Brown, was born “in from Coober Pedy” also within the AMY native title determination area. The genealogy also indicates that Ms Brown’s mother, Jessie Brown, lived and died within the AMY native title determination area.

(c)    To the best of Mr Wooley’s knowledge and belief, Ms Brown’s entitlement to be considered a common law holder of native title is not disputed by the AMYAC. Eligibility for membership of the AMYAC is essentially being able to satisfy the requirements of the definition of common law holders in the AYM native title determination. Ms Brown has been a member of the AMYAC since 1 July 2007 and was also a director of the AMYAC for a period of two years from 25 November 2010.

17    Those matters do not appear to be disputed by Ms Brown. I understand her evidence to confirm that she holds native title in the AMY native title determination area by descent from ancestors (particularly her grandfather) who held native title, by being born within the AMY determination area, from living within the AMY determination area, by being a senior elder in the Anangu Pitjanytjatjara Yankunytjatjara lands, and by having knowledge of and observing the traditional laws and customs which give her rights and responsibilities in the AMY determination area.

The application for joinder

18    With no disrespect intended, the reasons that Ms Brown had applied to be joined as a party to this proceeding were difficult to discern. Much of the material that she filed (in both her written submissions and her affidavits) was unintelligible. Nevertheless, the following points emerged from the materials.

19    In her affidavit dated 28 June 2023, Ms Brown deposed that her “family’s rights and interests will be affected by this native title determination where our free, prior, informed consent has not been given”. Ms Brown confirmed at the hearing of the application that she had applied to be joined as a party so that she could have a say with respect to the application.

20    In her affidavit dated 16 October 2023, Ms Brown deposed that she neither supports nor opposes the AMYAC application “as my family have different interests to the Antakirinja Matu-Yankunytjatjara Aboriginal Corporation”. What then follows is incomprehensible. However, at the conclusion of the affidavit it appears that Ms Brown has a grievance with respect to the membership of the AMYAC and is concerned about the manner in which any compensation awarded in the proceeding will be divided between members of the AMYAC (or the common law holders). Ms Brown deposed that her “family are sceptical of receiving any monies from the compensation”. At the time that AMYAC sought authorisation for this compensation application, Ms Brown opposed making the application because “the AMYAC membership is still in dispute”. At the hearing of the application, Ms Brown confirmed these matters as reasons for seeking to be joined to the proceeding.

21    Underlying Ms Brown’s grievance with respect to the membership of the AMYAC appears to be a view that her family have superior rights and interests in the AMY native title determination area compared with other members of the AMYAC (or common law holders). Ms Brown describes her rights and interests as a “Dominium Directum Demesne with no fee tail”. As discussed below, this is an archaic description of property rights dating to feudal times in England, usually associated with landholdings of the Crown. In support of her claim to hold this interest, Ms Brown’s affidavits and submissions refer to various instruments and events from English legal history, including the Magna Carta in 1215, the Statute of Marlborough in 1267 and the establishment of the Duchy of Cornwall by Royal Charter in 1337. However, the more proximate basis of Ms Brown’s claim appears to be the proviso contained the Letters Patent issued by the Imperial Crown on 19 February 1836 that established the Province of South Australia (the Letters Patent proviso) that reads:

… Provided always that nothing in those our Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own Persons or in the Persons of their Descendants of any Lands therein now actually occupied or enjoyed by such Natives…

Consideration

Applicable principles

22    Section 84 of the NTA governs the joinder and removal of parties to this proceeding (which is a compensation application to which s 61 applies). Subsections 84(3) provides for the joinder of interested persons within the notification period specified in s 66. As explained earlier, Ms Brown was not joined as a party within that period and can no longer utilise that mechanism for joinder. Subsection 84(5) provides a further mechanism for the joinder of an interested person. It 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.

23    Many of the cases that have considered applications for joinder under s 84(5) have involved native title determination applications. In such cases, a person who claims native title rights and interests in relation to the land or waters the subject of the proceeding may be joined as a respondent party to defensively assert their native title rights and interests in order to protect them from erosion, dilution or discount: see for example Isaacs on behalf of the Turrbal People v Queensland (No 2) [2011] FCA 942 at [18] (Reeves J); Harkin on behalf of Nanatadjarra People v Western Australia [2020] FCA 1015 at [11] (Griffiths J); Blackburn v Wagonga Local Aboriginal Land Council (2021) 287 FCR 1 at [54]. However, even in the context of a native title determination application, the dissatisfaction of a claim group member with the institution of the proceeding or the manner of its conduct does not, of itself, warrant that person being joined, or remaining, as a respondent party: Miller v South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 (Miller) at [120] (White J); Alvoen (on behalf of Wakaman People #3) v Queensland [2019] FCA 1469 (Alvoen) at [28] and [30] (Reeves J); Lewis on behalf of the Warrabinga-Wiradjuri People #7 v Attorney General of New South Wales (No 2) [2021] FCA 1269 (Lewis) at [9] (Griffiths J). Nevertheless, if such a person contends that their native title rights and interests exist by reason of their membership of a different competing claim group, or where they dispute the composition of the claim group, they may be permitted to remain a respondent party: Alvoen at [28]; Miller at [121]-[129]; Lewis at [9].

24    Somewhat different considerations will arise, though, in the context of a compensation application in respect of an area in which native title has been determined. If native title has been determined, a person will not be permitted to join a proceeding for compensation for the purpose of contesting the native title determination. If an application for joinder is made by a person who is a member of the native title holding group, it will be necessary to consider how the person’s interests will be affected by a determination of compensation in the proceeding. In such a case, and similar to the principles established in the context of native title determination applications, it is unlikely to be sufficient that the joinder applicant opposes compensation or is dissatisfied with the manner in which the proceeding is being conducted, where the compensation application is brought by the prescribed body corporate (as in this proceeding) or is duly authorised by the compensation claim group in accordance with s 251B of the NTA. As discussed by Mansfield J in Starkey v South Australia (2011) 193 FCR 450 at [55] and [62]-[63] (in the context of a native title determination application), the NTA contains procedures governing decision-making in the context of applications to which s 61 applies. Unanimity between members of the relevant claim group is not required and allowing a dissentient member of the group to join the proceeding as a respondent would be productive of cost and delay and impede negotiated settlements of the proceeding. Those considerations have been applied in numerous cases to refuse joinder where the application for joinder is based on what can properly be described as an intramural dispute: see for example Far West Coast Native Title Claim v State of South Australia (No 6) [2013] FCA 1270 at [60]-[80] (Mansfield J); Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia [2022] FCA 114 at [46]-[57] (Bromberg J); and Forrest on behalf of the Kakarra Part A Native Title Claim Group v State of Western Australia [2023] FCA 529 at [18]-[19] (Bromberg J).

25    In assessing where the interests of justice lie, regard should be had to, among other things, the objects and purposes of the NTA and the overarching purpose of civil practice and procedure expressed in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) which includes the just determination of disputes efficiently, in a timely manner, and at a cost that is proportionate to the importance and complexity of the matters in dispute: Kum Sing on behalf of Mitakoodi People # 5 v State of Queensland (No 2) [2022] FCA 248 at [17] (Perry J).

The interest claimed by Ms Brown

26    Ms Brown’s claim to hold a “dominium directum demesne with no fee tail” in the AMY native tile determination area must be rejected. The claim appears to be based on a misunderstanding or misapplication of the principles stated in Mabo v State of Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)).

27    As a convenient reference, Black’s Law Dictionary gives the common law meaning of the French word demesne as land held in one's own right, and not through a superior. The common law meaning of the Latin phrase dominium directum is the nominal right of ownership in land retained by a person who has granted to another an exclusive right of enjoyment over the land (such as a tenant).

28    In Mabo (No 2), Brennan J explained the doctrine of tenure as it applies in Australia, and the dominium directum held by the Crown in all land in Australia, as follows (at 46-51, citations omitted, emphasis in original):

The land law of England is based on the doctrine of tenure. In English legal theory, every parcel of land in England is held either mediately or immediately of the King who is the Lord Paramount; the term "tenure" is used to signify the relationship between tenant and lord, not the relationship between tenant and land. … It is implicit in the relationship of tenure that both lord and tenant have an interest in the land: “The King had ‘dominium directum’, the subject ‘dominium utile’”. Absent a “dominium directum” in the Crown, there would be no foundation for a tenure arising on the making of a grant of land. …

…

It is not surprising that the fiction that land granted by the Crown had been beneficially owned by the Crown was translated to the colonies and that Crown grants should be seen as the foundation of the doctrine of tenure which is an essential principle of our land law. It is far too late in the day to contemplate an allodial or other system of land ownership. Land in Australia which has been granted by the Crown is held on a tenure of some kind and the titles acquired under the accepted land law cannot be disturbed.

Accepting the doctrine of tenure, it was an essential postulate that the Crown have such a title to land as would invest the Sovereign with the character of Paramount Lord in respect of a tenure created by grant and would attract the incidents appropriate to the tenure, especially the Crown's right to escheat. The Crown was invested with the character of Paramount Lord in the colonies by attributing to the Crown a title, adapted from feudal theory, that was called a radical, ultimate or final title: see, for example, Amodu Tijani v. Secretary, Southern Nigeria; Nireaha Tarnaki v. Baker; cf. Administration of Papua and New Guinea v. Daera Guba. The Crown was treated as having the radical title to all the land in the territory over which the Crown acquired sovereignty. The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty. As a sovereign enjoys supreme legal authority in and over a territory, the sovereign has power to prescribe what parcels of land and what interests in those parcels should be enjoyed by others and what parcels of land should be kept as the sovereign’s beneficial demesne.

By attributing to the Crown a radical title to all land within a territory over which the Crown has assumed sovereignty, the common law enabled the Crown, in exercise of its sovereign power, to grant an interest in land to be held of the Crown or to acquire land for the Crown’s demesne. The notion of radical title enabled the Crown to become Paramount Lord of all who hold a tenure granted by the Crown and to become absolute beneficial owner of unalienated land required for the Crown’s purposes. But it is not a corollary of the Crown’s acquisition of a radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants. If the land were desert and uninhabited, truly a terra nullius, the Crown would take an absolute beneficial title (an allodial title) to the land for the reason given by Stephen C.J. in Attorney-General (N.S.W.) v. Brown: there would be no other proprietor. But if the land were occupied by the indigenous inhabitants and their rights and interests in the land are recognized by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land. Nor is it necessary to the structure of our legal system to refuse recognition to the rights and interests in land of the indigenous inhabitants. The doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant. The English legal system accommodated the recognition of rights and interests derived from occupation of land in a territory over which sovereignty was acquired by conquest without the necessity of a Crown grant.

…

Recognition of the radical title of the Crown is quite consistent with recognition of native title to land, for the radical title, without more, is merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown's territory). Unless the sovereign power is exercised in one or other of those ways, there is no reason why land within the Crown's territory should not continue to be subject to native title. It is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the notion that native title is extinguished by the acquisition of sovereignty.

29    In accordance with the principles stated in Mabo (No 2), upon the assertion of sovereignty over relevant parts of Australia, the Crown held dominium directum in the land. The common law enabled the Crown, in exercise of its sovereign power, to grant an interest in land to be held of the Crown or to acquire land for the Crown’s demesne. The common law also recognised the rights and interests in land of the indigenous peoples who occupied the land. That recognition of rights and interests was not by virtue of any Crown grant of tenure and did not require a Crown grant of tenure. Today, those rights and interests are recognised and given protection by the NTA.

30    Native title rights and interests within the AMY native title determination area were recognised by a determination of the Court made under the NTA on 11 May 2011. It appears to be common ground that Ms Brown and her family are members of the group that hold those native title rights and interests within the AMY native title determination area.

31    The Letters Patent proviso does not assist Ms Brown’s claim to a “dominium directum demesne with no fee tail” in the AMY native title determination area. The proviso did not constitute a grant of tenure by the Crown to Ms Brown’s ancestors who were alive at the time of issue of the Letters Patent (in 1836).

32    The history of the establishment of the colony of South Australia was outlined by Mansfield J in Walker v South Australia (No 2) (2013) 215 FCR 254 (Walker). As his Honour explained:

22    The Province of South Australia was established pursuant to the South Australia Act 1834 (Imp) 4 & 5 Wm IV, c 95 (1834 SA Act). Section 1 empowered the King to establish a separate province or provinces within the geographical area of what is now South Australia. That section relevantly provided:

… it shall and may be lawful for his Majesty … with the advice of His Privy Council, to establish one or more provinces and to fix the respective boundaries of such provinces; and that all and every person who shall at any time hereafter inhabit or reside within His Majesty’s said province or provinces shall be free, and shall not be subject to or bound by any laws, orders, Statutes, or Constitutions which have been heretofore made, or which hereafter shall be made, ordered, or enacted by, for, or as the laws, orders, Statutes, or Constitutions of any other part of Australia, but shall be subject to and bound to obey such laws, orders, Statutes, and Constitutions as shall from time to time, in the manner hereinafter directed, be made, ordered, and enacted for the Government of His Majesty’s province or provinces of South Australia.

23    Part of the effect of s 1 was to excise South Australia as an entirely separate Province, terminating the operation of laws made in New South Wales.

24    In the exercise of the power vested by s 1 of the 1834 SA Act, Letters Patent dated 19 February 1836 were issued, erecting and establishing the Province of South Australia. Those Letters Patent contained the Letters Patent proviso.

33    The Letters Patent stated as follows:

William the Fourth by the Grace of God of the United Kingdom of Great Britain and Ireland King Defender of the Faith To all to Whom these Presents shall come Greeting Whereas by an Act of Parliament passed in the fifth year of our Reign entitled "An Act to empower His Majesty to erect South Australia into a British Province or Provinces and to provide for the Colonization and Government thereof" After writing that, that part of Australia which lies between the Meridians of the one hundred and thirty second and one hundred and forty first Degrees of East Longitude and between the Southern Ocean and twenty six Degrees of South Latitude together with the Islands adjacent thereto consists of Waste and unoccupied Lands which are supposed to be fit for the purposes of Colonization And that divers of our Subjects possessing amongst them considerable Property are desirous to embark for the said part of Australia And that it is highly expedient that our said Subjects should be enabled to carry their said laudable purpose into effect It is Enacted that it shall and may be lawful for Us with the advice of our Privy Council to erect within that part of Australia which lies between the Meridians of the one hundred and thirty second and one hundred and forty first Degrees of East Longitude and between the Southern Ocean and the twenty-six Degrees of South Latitude together with all and every the Islands adjacent thereto and the Bays and Gulfs thereof with the advice of our Privy Council to Establish one or more Provinces and to fix the respective Boundaries of such Provinces Now know ye that with the advice of Our Privy Council and in pursuance and exercise of the powers in Us in that behalf vested by the said recited Act of Parliament We do hereby Erect and Establish one Province to be called the Province of South Australia—And we do hereby fix the Boundaries of the said Province in manner following (that is to say) On the North the twenty sixth Degree of South Latitude On the South the Southern Ocean—On the West the one hundred and thirty second Degree of East Longitude— And on the East the one hundred and forty first Degree of East Longitude including therein all and every the Bays and Gulfs thereof together with the Island called Kangaroo Island and all and every the Islands adjacent to the said last mentioned Island or to that part of the main Land of the said Province Provided always that nothing in those our Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own Persons or in the Persons of their Descendants of any Lands therein now actually occupied or enjoyed by such Natives In Witness whereof We have caused these our Letters to be made Patent Witness Ourself at Westminster the Nineteenth day of February in the sixth year of our Reign.

34    The beneficent intention expressed by the Imperial Crown in the proviso to the Letters Patent, that nothing in the Letters Patent shall affect or be construed to affect the rights of any Aboriginal people of the province of South Australia (and their descendants) to the actual occupation or enjoyment of any lands within the province occupied or enjoyed by them, was short-lived. Following the creation of the colony of South Australian, the colonial powers proceeded to grant interest over Aboriginal lands within South Australia to settlers, thus disrupting the occupation and enjoyment of the lands by their traditional inhabitants.

35    In Walker, Mansfield J rejected an argument that the Letters Patent proviso conferred a form of protection of indigenous sovereignty in South Australia (at [25]-[32]). I do not understand that Ms Brown seeks to challenge that conclusion or rely upon arguments based upon any concept of indigenous sovereignty. Rather, Ms Brown’s argument appears to be that the Letters Patent proviso granted a form of tenure to the indigenous peoples in occupation of land in South Australia, including Ms Brown’s ancestors. However, that argument must also be rejected. As explained by Mansfield J in Walker (at [50]-[52]), an argument that the Letters Patent proviso protected the rights of indigenous peoples to the occupation or enjoyment of their lands from any inconsistent legislative or executive act was rejected by Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 274-283 and by Kirby J in Fejo v Northern Territory (1998) 195 CLR 96 (Fejo) at [91]. I would add that the argument is also inconsistent with the reasoning of the majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) in Fejo (at [50]). I have no reason to depart from Mansfield J’s analysis of the constitutional foundations of South Australia and his conclusion that (at [42]):

The asserted restriction on legislative power requiring a recognition of sovereignty of Aboriginal people, or some other qualification or protection for Aboriginal people from the application of Colonial and Imperial laws, is inconsistent with the grant, and repeated confirmation, of plenary legislative power, over the whole of the land and over all of its inhabitants, from 1836 to 1986. Whilst such plenary power has been described as being as large, and of the same nature, as that of the Imperial Parliament, it is now, of course, qualified, but only by the limits derived from the Constitution. The asserted restriction on legislative power is also inconsistent with the decision of the High Court in Mabo (No 2).

36    It follows that Ms Brown’s rights and interests in the AMY native title determination area are those determined by this Court on 11 May 2011. Those rights are the same as, and held communally with, all other common law holders in accordance with the determination made by the Court.

Ms Brown’s reasons for seeking joinder

37    As set out earlier, Ms Brown advances three reasons for seeking to be joined as a party to this proceeding.

38    The first is an assertion that her “family’s rights and interests will be affected by this native title determination where our free, prior, informed consent has not been given”. As discussed earlier, the NTA contains procedures governing decision-making in the context of applications to which s 61 applies. Unanimity between members of the relevant claim group is not required. The AMYAC was not legally required to obtain the consent of Ms Brown or her family before bringing this proceeding or making decisions in connection with this proceeding. It follows that Ms Brown has no right of veto over this proceeding, and her rights and interests are not affected by reason of the fact that her consent was not given to the proceeding.

39    The second reason for seeking to be joined is the claim that Ms Brown and her family has different interests to the other members of the AMYAC. For the reasons explained in the preceding section, I reject that claim. On the evidence before me, Ms Brown has the same rights and interests as all members of the AMYAC and the common law holders of native title in the AMY native title determination area.

40    The third reason for seeking to be joined is Ms Brown’s scepticism that her family will receive any monies from the claim and the assertion that there is a dispute with respect to the AMYAC membership. Ms Brown has failed to adduce any evidence to substantiate those matters. Even if she had adduced evidence, this proceeding is not the appropriate forum in which any such disputes should be resolved. The disputes relate to the operations of the AMYAC and, to the extent the disputes can be substantiated, should be resolved in a proceeding that is directed to the decision-making processes of the AMYAC. In relation to any future distribution of compensation, s 94 of the NTA requires the Federal Court to include in any compensation order:

(a)    the name of the person or persons entitled to the compensation or the method for determining the person or persons;

(b)    the method (if any) for determining the amount or kind of compensation to be given to each person; and

(c)    the method for determining any dispute regarding the entitlement of a person to an amount of the compensation.

41    It follows that the appropriate means of addressing concerns or disputes over the distribution of compensation awarded by the Court is, in the first instance, pursuant to the dispute mechanism included in the Court’s order.

Conclusion

42    Having regard to the above matters, I am not satisfied that it is in the interests of justice to join Ms Brown as a respondent to this proceeding. Ms Brown has the same interests as all members of the AMYAC and the common law holders of native title in the AMY native title determination area. The concerns expressed by Ms Brown with respect to the AMYAC are properly characterised as intramural matters and this proceeding is not the appropriate forum in which to resolve such concerns, to the extent that they can be substantiated. I consider that joining Ms Brown as a respondent to this proceeding would be likely to result in increased cost and delay in the resolution of the proceeding, and is likely to impede a negotiated settlement. Those likely consequences are contrary to the interests of justice.

Associate:

Dated:    26 October 2023

SCHEDULE OF PARTIES