Federal Court of Australia

Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 5) [2023] FCA 1417

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 18 October 2023 filed on behalf of Jacqueline Spurling be dismissed.

2.    By 24 November 2023, Jacqueline Spurling file and serve a submission of no more than 2 pages on the question whether an order should be made that she pay the costs incurred by the Applicant in opposing the interlocutory application.

3.    By 1 December 2023, the Applicant file and serve a submission of no more than 2 pages in reply on the question of costs.

4.    The question of costs will be determined on the papers unless Jacqueline Spurling or the Applicant requests a further oral hearing on the question of costs in their written submissions.

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 in proceeding WAD 38 of 2022 (Karratjibbin claim). When it was first filed, the Karratjibbin claim area was wholly within the Marlinyu Ghoorlie claim area. It shared the western boundary of the Marlinyu Ghoorlie claim area and extended east past Southern Cross, but not as far as Coolgardie or Kalgoorlie. On 21 June 2023, the Marlinyu Ghoorlie claim was amended to exclude an area near the north-western boundary of the claim, as part of a settlement with the Badimia people. The Karratjibbin claim continues to cover that area and, in that respect, the Karratjibbin claim area is no longer wholly within the Marlinyu Ghoorlie claim area.

3    A joint trial of the Marlinyu Ghoorlie claim and the Karratjibbin claim commenced on 2 October 2023 in respect of the area covered by the Marlinyu Ghoorlie claim (trial area) and 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 trial area?

(b)    In relation to that part of the trial area 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 the period 2 to 19 October 2023, lay evidence was given in Kalgoorlie and at locations throughout the trial area.

5    By interlocutory application dated 18 October 2023, Jacqueline Spurling has applied to be joined as a respondent to this proceeding pursuant to s 84(5) of the Native Title Act 1993 (Cth) (Act). Ms Spurling also seeks leave to file an expert report titled “Ethnohistorical enquiry regarding native title rights in the Goldfields of WA with special attention to the region between Coolgardie and Menzies” prepared by Dr Christine Mathieu dated 16 October 2023 for the purpose of the trial of the separate questions in this proceeding.

6    Ms Spurling’s application was supported by an affidavit sworn by her on 17 October 2023. In that affidavit, Ms Spurling states that she was a member of the native title claim group which brought the Maduwongga native title determination application in proceeding WAD 186 of 2017 (Maduwongga claim). Ms Spurling is the daughter of the first named applicant in the Maduwongga claim, Marjorie Strickland. The Maduwongga claim overlapped an eastern portion of Marlinyu Ghoorlie claim area, extending a short way past Coolgardie. As discussed below, the Maduwongga claim was dismissed by the Court on 28 April 2023.

7    Ms Spurling’s application was opposed by the Marlinyu Ghoorlie applicant and the State of Western Australia. Each of Ms Spurling, the Marlinyu Ghoorlie applicant and the State filed written submissions in respect of the application and the application was heard on 10 November 2023. The Karratjibbin applicant did not seek to be heard on the application. Nor did any other respondent to the Marlinyu Ghoorlie proceeding.

8    For the reasons explained below, I am not satisfied that joinder is in the interests of justice. It follows that the joinder of Ms Spurling as a respondent is refused and leave will not be given for the filing of the report of Dr Mathieu. Ms Spurling’s application is therefore dismissed.

Background

Marlinyu Ghoorlie claim

9    The Marlinyu Ghoolie claim was filed on 22 December 2017 and entered on the Register of Native Title Claims on 28 March 2019.

10    The claim group comprises those persons: who are descended from one or more of four apical ancestors, being Nellie Champion, Kadee, Warada, and Lucy Sambo, or those persons and their descendants who have been incorporated into the rights-holding group in accordance with its traditional laws and customs; who identify as Kalamaia, Gubrun, Kapurn and/or Kalaako (including alternate spellings of these names, or any combination of them); and who are recognised by other members of that group.

11    In respect of parts of the claim area that are unaffected by the extinguishment of native title, are not subject to certain public rights, and do not have certain other characteristics, the Marlinyu Ghoorlie applicant claims exclusive rights of possession, use and enjoyment, which encompass rights to control access to the claim area, to protect and make decisions about sites in the claim area, and to take and use resources of the claim area. In respect of all other parts of the claim area, the Marlinyu Ghoorlie applicant claims certain non-exclusive rights, including rights to live on, pass through and engage in cultural activities, and the transmission of cultural knowledge in those areas, and rights to use the traditional resources of waters of those areas.

Maduwongga claim

12    The Maduwongga claim was filed on 21 April 2017, prior to the filing of the Marlinyu Ghoorlie claim. The Maduwongga claim was made on behalf of a group of people called the Maduwongga, which was said to comprise a distinct land-holding group descended from one apical ancestor (referred to by her initials, “KB”). The Maduwongga claim was registered on the Register of Native Title Claims from 3 August 2017 to 1 May 2023. The two named applicants for the Maduwongga claim were Marjorie Strickland and her sister Anne Nudding, being the mother and aunt respectively of Ms Spurling.

13    The area the subject of the Maduwongga claim was situated in the Goldfields region of Western Australia, and was more than 25,000 square kilometres in size. The claim area stretched from its south-western corner near Coolgardie to a north-eastern boundary by the Edjudina Range. Relevantly, the claim area overlapped in the south-west with the Marlinyu Ghoorlie claim, and in the north-east with a claim seeking a determination of native title rights and interests on behalf of the Nyalpa Pirniku claim group in proceeding WAD 91 of 2019 (Nyalpa Pirniku claim).

14    In late 2020 and early 2021, this Court heard evidence and submissions on a separate question, which was intended to determine a dispute between the Maduwongga applicant and the Nyalpa Pirniku respondent as to who held native title rights and interests in relation to the overlap area between the Maduwongga claim and the Nyalpa Pirniku claim.

15    By orders made on 27 March 2023, the Court determined that the apical ancestor of the Maduwongga applicant, KB, held rights and interests in the relevant overlap area under the normative system of traditional laws and customs of the Western Desert, but not under the normative system of a distinct land-holding group of which KB’s descendants are the only identifiable surviving members: Strickland on behalf of the Maduwongga Claim Group v State of Western Australia [2023] FCA 270 (Strickland). As a result of that decision, the Maduwongga claim was dismissed on 28 April 2023 on the basis that there was no separate land-holding group known as Maduwongga.

16    On 31 October 2023, the Court made a consent determination of native title in respect of the Nyalpa Pirniku claim: Lewis on behalf of the Nyalpa Pirniku Native Title Claim Group v State of Western Australia [2023] FCA 1294 (Lewis). In that determination, the Court acknowledged the finding in Strickland that KB held rights and interests in the overlapping claim area of the Maduwongga claim and the Nyalpa Pirniku claim under the traditional laws and customs of the Western Desert and not as part of a Maduwongga society (Lewis at [13]). As a result of the findings made in Strickland, the description of the native title holders in the Nyalpa Pirniku claim was amended to include the descendants of KB (Lewis at [16]). It is uncontroversial that Ms Spurling, and her mother Marjorie Strickland, hold native title rights and interests in the Nyalpa Pirniku determination area as descendants of KB. The Nyalpa Pirniku determination area does not overlap the Marlinyu Ghoorlie claim area.

Karratjibbin claim

17    The Karratjibbin native title claim was filed in proceeding WAD 38 of 2022 on 18 February 2022, and was subsequently amended on 2 September 2022.

18    The Karratjibbin claim is made on behalf of all those persons who are biological descendants of Karratjibbin traditional owners and apical ancestors Polly, Billy Yambinut, Eva, Nimmo and Toby, or who have been adopted by one or more of those biological descendants in accordance with the traditional laws and customs of the Karratjibbin people. The Karratjibbin applicant has subsequently acknowledged that the ancestors Polly and Eva are affinal ancestors for the members of the current Karratjibbin claim group insomuch as Polly and Eva are not known to have any current living descendants. The Karratjibbin applicant also acknowledges that Nimmo was the son of apical ancestor Toby and is not strictly an apical ancestor (as all descendants of Nimmo are also descendants of Toby).

19    The Karratjibbin claim area takes in Southern Cross to the south, Mukinbudin and Kalannie to the west and Mt Jackson to the north. It generally forms a smaller part of the Marlinyu Ghoorlie claim area. As noted earlier, when it was first filed, the Karratjibbin claim area was wholly within the Marlinyu Ghoorlie claim area. However, following an amendment to the north-western boundary of the Marlinyu Ghoorlie claim as part of a settlement with the Badimia people, the Karratjibbin claim covers an area that is no longer covered by the Marlinyu Ghoorlie claim. The Karratjibbin claim did not overlap with the Maduwongga claim (prior to the dismissal of the latter).

20    In respect of parts of the claim area that are unaffected by the extinguishment of native title, the Karratjibbin applicant claims exclusive rights of possession, occupation, use and enjoyment. In respect of all other parts of the claim area, the Karratjibbin applicant claims certain non-exclusive rights, including rights to remain on, pass through, make decisions in relation to, and engage in cultural activities and the transmission of cultural knowledge in, those areas, as well as rights to use the traditional resources of the land and waters for any purpose.

Elizabeth Sambo

21    Elizabeth Sambo is a respondent to this proceeding and has been actively involved in the hearing of the separate questions. Ms Sambo identifies as a member of the Kapurn people. Through her ancestor, Lucy Sambo, she falls within the Marlinyu Ghoorlie claim group. However, Ms Sambo opposes the Marlinyu Ghoorlie claim. Having regard to Ms Sambo’s case as stated in her concise statement filed on 28 April 2023, the bases for her opposition are twofold. First, Ms Sambo contests the extent and boundaries of the area the subject of the Marlinyu Ghoorlie claim, in respect of which the Kapurn people hold native title rights and interests. Second, Ms Sambo disputes the composition of the claim group as constituted in the Marlinyu Ghoorlie application. Ms Sambo also disputes the claims made by other respondents in this proceeding, including those of the Cooper respondents (referred to below).

The Cooper respondents

22    Each of Gary Cooper, Maria Bandry, Norman Cooper and Victor Cooper (together, the Cooper respondents) are also a respondent to this proceeding. The Cooper respondents contend that they hold native title rights and interests in the eastern portion of the trial area, which encompasses Bullabulling, Coolgardie, Kalgoorlie and Kanowna, and that the Marlinyu Ghoorlie claim group do not hold any such native title rights and interests in that area. The native title rights and interests claimed by the Cooper respondents include rights to access and use lands and waters, to speak for country, and to protect sacred sites. The Cooper respondents contend that they acquired native title rights and interests in respect of the relevant area by descent from their apical ancestor Nada Bilbear (also known as Aneida). Nada Bilbear is said to be a member of a pre-sovereignty society, the “original tribe of Kalgoorlie”, that held native title rights and interests in the eastern part of the trial area at the time of effective sovereignty. That society is separate and distinct from those which are asserted by the Marlinyu Ghoorlie and Karratjibbin applicants respectively, as well as from the peoples, laws and customs of the Western Desert. That society occupied part of an “interstitial zone” where, at effective sovereignty, the societies of the Western Desert peoples to the east, northeast and north met the societies to the west, southwest and south, which included the Kapurn, among others.

Procedural history

23    On 5 October 2022, Bromberg J relevantly made the following orders in each of the Marlinyu Ghoorlie, Maduwongga and Karratjibbin proceedings:

(a)    That the following separate question be listed for hearing and heard separately from any issues of extinguishment of native title:

Who are the holders of native title rights and interests in accordance with s 223 of the Native Title Act 1993 (Cth) in relation to the land and waters covered by the Marlinyu Ghoorlie native title determination application (WAD 647 of 2017)?

(b)    That the Marlinyu Ghoorlie native title determination application, the Karratjibbin native title determination application and the Maduwongga native title determination application be heard together as one proceeding in relation to the separate question.

24    On 22 December 2022, timetabling orders for the hearing of the separate question were made in each of the proceedings. Relevantly, the orders provided for:

(a)    the hearing of opening submissions and Aboriginal and other lay evidence in October 2023, followed by the hearing of expert evidence and closing oral submissions in early 2024;

(b)    the filing of 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 by mid-March 2023 (in respect of each applicant) and by the end of March 2023 (in respect of the State and any participating respondent);

(c)    the filing of expert witness reports by the end of May 2023 (in respect of the applicants’ expert evidence) and by the end of September 2023 (in respect of the participating respondents’ expert evidence); and

(d)    the filing of lay witness statements of evidence and other documents to be tendered through each lay witness by the end of June 2023 (in respect of the applicants’ evidence) and mid-July 2023 (in respect of the participating respondents’ evidence).

25    In February 2023, on application by the Marlinyu Ghoolie applicant and Ms Elizabeth Sambo in the Marlinyu Ghoorlie proceeding, and by the Maduwongga applicant in the Maduwongga proceeding, Bromberg J received oral and written preservation evidence from three individuals. Those individuals were Brian Champion Snr (the former lead applicant in the Marlinyu Ghoorlie proceeding), Gary Sambo (the brother of Elizabeth Sambo, a respondent in the Marlinyu Ghoorlie proceeding), and Anne Joyce Nudding (the second named applicant in the Maduwongga proceeding). Ms Nudding is Ms Spurling’s aunt. The preservation evidence was heard on country in Kalgoorlie over four days. The evidence given by Ms Nudding was given in support of the Maduwongga claim. Ms Nudding said that she was part of the Maduwongga people and that the first people to live in Coolgardie were the Maduwongga people.

26    As noted above, on 28 April 2023, Bromberg J made orders dismissing the Maduwongga proceeding. Since that date, none of the individuals comprising the applicants in the Maduwongga proceeding have had any role in this proceeding.

27    The trial of the separate questions in the Marlinyu Ghoorlie and Karratjibbin claims has now reached the following stage:

(a)    Pleadings, in the form of concise statements, were filed on behalf of each of the five presently participating parties in the trial: the Marlinyu Ghoorlie applicant, the Karratjibbin applicant, the State of Western Australia, the Cooper respondents and Ms Sambo.

(b)    Lay evidence was filed and, between 2 and 19 October 2023, the lay evidence was heard in Kalgoorlie and other locations across the trial area.

(c)    Expert anthropological evidence was filed between June and September 2023, with supplementary expert evidence following the hearing of the lay evidence filed in the first week of November 2023. Expert reports have been filed by: Fiona Powell, Nell Taylor and Ray Wood on behalf of the Marlinyu Ghoorlie applicant; Brendan Corrigan on behalf of the Karratjibbin applicant; and Daniel Leo on behalf of the Cooper respondents. A conference of experts will occur in the week commencing 20 November 2023. Expert evidence will be heard in the week commencing 11 December 2023.

Ms Spurling’s application

28    In her affidavit, Ms Spurling deposed that she is a descendant of KB, who is her great-grandmother. Ms Spurling was born in Kalgoorlie and has spent most of her life in the Kalgoorlie-Boulder area.

29    Ms Spurling acknowledged in her affidavit that, in Strickland, the Court found that KB was a Western Desert person, that she observed Western Desert laws and customs during her lifetime and she held traditional rights and interests in the land and waters of the Maduwongga – Nyalpa Pirniku overlap area under those Western Desert laws. Ms Spurling deposed that:

I have inherited, in accordance with traditional law and custom, the same rights and interests as were recognised to be held by my great-grandmother KB in the Maduwongga and NP overlap area, as well as the rights and interests held by my grandfather Arthur Newland.

I assert those rights and interest in accordance with traditional law and custom to the land and waters in the Kalgoorlie and Coolgardie area which is currently the subject of a claim on behalf of the Marlinyu Ghoorlie claim group. …

30    I accept, as submitted by Counsel for Ms Spurling, that on this application Ms Spurling asserts that she holds native title rights and interests in part of the trial area under Western Desert law and customs. That assertion marks a significant change in the position taken by Ms Spurling’s family in the Maduwongga claim. As discussed above, the Maduwongga claim was brought on behalf of a group of people who claimed to be a distinct land-holding group descended from one apical ancestor, KB, and who called themselves Maduwongga. As explained by Jackson J in Strickland (at [32]):

The Maduwongga applicant's main contention is that KB held rights and interests in the land and waters within the Maduwongga claim area under a normative system of laws and customs relating to land tenure that was distinct from and antithetical to any normative system of laws and customs observed by the peoples of the Western Desert. It also contends that KB's descendants comprise the only identifiable surviving members of the group who hold rights and interests in the land and waters in the Maduwongga claim area.

31    In Strickland, Jackson J rejected that claim and found that there was no distinct Maduwongga society (at [886]). Justice Jackson did not accept the evidence given by Mrs Strickland and Mrs Nudding that their father and aunties had used the name Maduwongga to refer to a distinct Aboriginal tribe (at [889]). Justice Jackson concluded that the use of the name was prompted by Mrs Strickland's discovery of Tindale's materials in the South Australian Museum in 1994 and not by any prior knowledge or use of the term in that way by her or her family (at [890]). Justice Jackson also found, on the balance of probabilities, that KB was not born at Edjudina (which is, in any event, east of Menzies and outside the Marlinyu Ghoorlie claim area), and that it is likely that KB came with her family at a young age into the Laverton and Burtville area, from spinifex country further to the east of there, and then later down into Edjudina (at [897]).

32    Although, by her affidavit, Ms Spurling has abandoned a claim based on being a member of a distinct group of people called the Maduwongga, and now appears to embrace the findings made in Strickland that her ancestor, KB, was a Western Desert person, the basis for her claim that she has native title rights and interests in the area around Kalgoorlie is less than clear. Ms Spurling continues to claim rights as a descendant of a single apical ancestor, KB, and not as part of a broader Aboriginal society. That claim is problematic in circumstances where the Court has recently found that KB was one of many members of a Western Desert society and came from country far to the east of the Marlinyu Ghoorlie claim area.

33    In support of her claimed interest, Ms Spurling exhibited to her affidavit a report prepared by Dr Christine Mathieu dated 16 October 2023 titled “Ethnohistorical enquiry regarding native title rights in the Goldfields of WA with special attention to the region between Coolgardie and Menzies”. By her interlocutory application, Ms Spurling also seeks to file the report and have Dr Mathieu give evidence with the other expert witnesses in this proceeding in mid-December 2023. Dr Mathieu was an expert witness for the Maduwongga claimant and gave evidence in the hearing with respect to the Maduwongga – Nyalpa Pirniku overlap area. At that time, Dr Mathieu expressed the opinion that, during KB’s time, the Maduwongga were a distinct land-holding group (Strickland at [133]).

34    There are a number of difficulties with Ms Spurling’s reliance on Dr Mathieu’s 16 October 2023 report in support of her application for joinder.

35    First, Dr Mathieu was found to be an unsatisfactory witness by Jackson J in Strickland (at [134]). Justice Jackson’s findings were as follows:

(a)    Dr Mathieu's academic career does not place her in the mainstream of Australian Aboriginal anthropology (at [135]). Dr Mathieu has not acted as an expert witness in relation to any native title claims other than the Maduwongga claim (at [139]). Dr Mathieu's place outside the mainstream of expertise in Australian Aboriginal anthropology meant that she lacked a thoroughgoing grounding in the theoretical frameworks which have come to be accepted in the field and that this meant that her interpretations of the data were idiosyncratic ones which were not informed by a reliable body of knowledge (at [142]).

(b)    Dr Mathieu did not present as a disinterested, objective witness who understood that her first duty was to the Court. Rather, she was partial and partisan. By the time the Maduwongga – Nyalpa Pirniku overlap matter was heard, Dr Mathieu had worked with the Maduwongga for over eight years. At times Dr Mathieu seemed to have a close emotional identification with the Maduwongga claimants (at [144]). Justice Jackson formed the overall impression that Dr Mathieu was trying to fit her data into an interpretation which supported the Maduwongga claim (at [149]).

(c)    Dr Mathieu’s evidence was not accompanied by any formal brief or instructions (at [150]). Justice Jackson formed the impression that Dr Mathieu’s work was the result of an iterative process of working up reports to support the Maduwongga claim (at [151]), and that Dr Mathieu was looking for a “socio-linguistic group”, rather than addressing open ended questions as to whether such a group existed during KB’s time and, if it did, whether it observed and acknowledged a normative system of laws and customs giving rise to rights and interests in relation to land and waters distinct from that of the Western Desert. Justice Jackson concluded that the lack of transparency in how Dr Mathieu's reports came to be produced undermined confidence in their reliability (at [152]).

36    Second, like the report prepared by Dr Mathieu for the Maduwongga – Nyalpa Pirniku overlap matter, the 16 October 2023 report was not prepared in response to a proper letter of instructions. An annexure to the 16 October 2023 report reproduces what purports to be a letter of instructions to Dr Mathieu from Ms Spurling’s solicitors, Civic Legal, dated 13 October 2023, three days before Dr Mathieu finalised her report. Self-evidently, Dr Mathieu’s report was not prepared pursuant to that letter of instructions. Indeed, Dr Mathieu’s report discloses that the “report represents over 1400 hours of work undertaken between September 2022 and October 2023”. The preparation of such letters, which falsely purport to be letters of instruction to expert witnesses, should be denigrated. By reason of the false letter of instructions, the basis on which Dr Mathieu was originally instructed to prepare her 16 October 2023 report is not disclosed in a transparent manner. As observed by Lee J in BrisConnections Finance Pty Ltd (Receivers and Managers Appointed) v Arup Pty Ltd (2017) 252 FCR 450 (at [71], emphasis in original):

The point of a letter of instruction being annexed to a report is not to act out a stylised ritual, but to provide to the Court with a transparent indication of what has been provided to the expert and the questions that the expert was actually asked to address. It should be able to be read literally without being silly. As is (at the very least) implicit in [Part 23 of the Federal Court Rules 2011], the work of the expert is to attend to the questions “the expert was asked to address”, not to invert the process by using the expert’s specialised knowledge in order to identify the questions that should have been asked and the assumptions that should have been given. … The integrity of the expert evidence process and the independence of experts is best facilitated by transparency in what is being asked of experts prior to, or at the time, they are forming their opinions and, if the questions need to change because they are misdirected, a record being made by way of supplementary instructions as to what has changed.

37    Third, Dr Mathieu states in her 16 October 2023 report that she has “taken into account the rulings of Jackson J”. Despite that statement, Dr Mathieu has maintained her opinion that:

There existed a group of people who were autochthonous and who held native title under traditional laws and customs in the region between Coolgardie and Menzies at effective British sovereignty [1890s]. The Nudding-Strickland families are the descendants of these people and they hold the common rights and group rights comprising the native title in this region.

38    There is considerable difficulty in Dr Mathieu purporting to take into account Jackson J’s findings in Strickland, particularly with respect to KB, while maintaining that, at the time of the assertion of British sovereignty, there existed a distinct socio-linguistic group in the country surrounding Kalgoorlie in which KB held rights and interests and, by descent, in which the Strickland-Nudding families now hold rights and interests. In her report, Dr Mathieu does not abandon her opinion with respect to the existence of a Maduwongga society, notwithstanding the findings of the Court in Strickland. For example, at paragraph 415 of her report, Dr Mathieu expresses the opinion that the evidence she recounts “strongly suggests that there was a distinct ‘Maduwongga society’ in the region between Coolgardie and Menzies”. Later, at paragraph 655, Dr Mathieu expresses the opinion that:

The evidence also confirms the place of Maduwongga society at a ritual cross-road, in a social and ecological transitional zone on the margins of the Desert. The sources explored in this chapter confirm Maduwongga country at the southwestern end of the Desert ceremonial sphere. ...

39    In support of her joinder application, Ms Spurling submitted that her native title rights and interests are wholly inconsistent with the native title rights of exclusive possession claimed by the Marlinyu Ghoorlie applicant throughout the entire Marlinyu Ghoorlie claim area, including the right to control access, protect and make decisions about sites and to take and use resources from the entire claim area. Ms Spurling submitted that she is not claiming a determination of native title for her or her family, but to defensively assert and protect her native title rights and interests from erosion, dilution or discount by a determination in favour of the Marlinyu Ghoorlie claim group. Ms Spurling submitted that there is sufficient evidence to establish a prima facie case that she has a genuine and substantial interest in this proceeding because a determination of native title in the proceeding is in rem and will bind her and her family. No further application for determination can be made with respect to the same determined area.

40    With respect to the interests of justice, Ms Spurling submitted that her joinder would assist the Court in reaching a just determination. As to the delay in making the joinder application (following the decision in Strickland on 27 March 2023 and the consequential dismissal of the Maduwongga claim on 28 April 2023), Ms Spurling deposed that:

(a)    Just before Justice Jackson delivered his judgement, the Maduwongga’s solicitors at the time, Corser & Corser Lawyers, went into liquidation on or around 8 March 2023.

(b)    After the judgment and the dismissal of the Maduwonnga claim, the Maduwongga applicant needed to seek advice on the decision, including to find new lawyers and to find sources of funding to engage new lawyers. Lack of funds and funding was a significant issue for the Maduwongga claim group.

(c)    Ms Spurling needed to personally engage lawyers to represent her in this application.

(d)    Ms Spurling’s lawyers required time to get up to speed on the matter and prepare a brief to Dr Mathieu with very limited access to relevant documents in the Maduwonnga claim which were in the possession of Corser & Corser and the appointed liquidator.

(e)    Dr Mathieu required time to prepare and finalise the 16 October 2023 Report.

41    Ms Spurling submitted that her joinder would cause minimal prejudice to the other parties. If joined, Ms Spurling would seek to rely on: the evidence given by her mother, Mrs Strickland, in the Maduwongga – Nyalpa Pirniku overlap proceeding; the evidence given by her aunt, Mrs Nudding, by way of preservation evidence in this proceeding; and the 16 October 2023 report of Dr Mathieu. Ms Spurling submitted that the other parties to this proceeding attended the hearing of Mrs Nudding’s preservation evidence and have had access to Mrs Strickland’s evidence, and therefore receipt of that evidence will cause little prejudice. In relation to Dr Mathieu’s evidence, Ms Spurling submitted that there is sufficient time for Dr Mathieu to participate in the expert conferral process and give evidence with the other experts in the week of 11 December 2023.

Consideration

42    The joinder of a party to a native title determination application after commencement of the proceeding is governed by s 84(5) of the Act which provides as follows:

The Federal Court may at any time join any person as a party to the proceeding, 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.

43    The principles applicable to the exercise of the Court’s powers under s 84(5) were summarised in an earlier application for joinder in this proceeding in Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia [2023] FCA 930 at [41]. I apply those principles without repeating them.

44    The first condition for joinder is that the person’s interests may be affected by a determination in the proceeding. In considering that question, the Court considers the extent to which the applicant for joinder has adduced evidence of facts capable of supporting a finding that the applicant has an interest of a kind required by s 84(5).

45    The evidence adduced by Ms Spurling in support of her claim to hold native title rights and interests in the trial area is not strong. It suffers from the difficulty that Ms Spurling has been forced, by the findings made in Strickland, to advance a claim for native title that differs from the claim advanced by her family in the Maduwongga proceeding, which was rejected by the Court.

46    As discussed above, in the Maduwongga proceeding, it was claimed that the Maduwongga people were a distinct land-holding group descended from one apical ancestor, KB, who was Ms Spurling’s great-grandmother. That claim was rejected by the Court in Strickland. Significantly, the Court found that:

(a)    there was no distinct Maduwongga society;

(b)    the use of the name Maduwongga to refer to a distinct Aboriginal tribe was prompted by Mrs Strickland’s discovery of Tindale’s materials in the South Australian Museum in 1994 and not by any prior knowledge or use of the term in that way by her or her family;

(c)    it is likely that KB came with her family at a young age into the Laverton and Burtville area from spinifex country further to the east of there, and then later down into Edjudina; and

(d)    KB held rights and interests in the Maduwongga – Nyalpa Pirniku overlap area under the normative system of traditional laws and customs of the Western Desert, but not under the normative system of a distinct land-holding group of which KB’s descendants are the only identifiable surviving members.

47    It can be accepted that those findings were made in a proceeding that concerned an area that is outside the trial area in this proceeding (being to the north and east of the trial area in this proceeding). Nevertheless, those findings undermine Ms Spurling’s claim to hold native title rights and interests in the trial area on the basis of her descent from KB.

48    Ms Spurling seeks to support her claim to hold native title rights and interests in the trial area by Dr Mathieu’s recent report. That report suffers from a number of difficulties which have been discussed above. In my view, it is difficult to reconcile Dr Mathieu’s opinions with the findings made in Strickland. In particular, Dr Mathieu does not abandon her opinion with respect to the existence of a Maduwongga society, despite the findings made by the Court in Strickland that there was no distinct Maduwongga society. Further, Dr Mathieu maintains the opinion that, at the time of the assertion of British sovereignty, there existed a distinct socio-linguistic group in the country surrounding Kalgoorlie in which KB held rights and interests, notwithstanding the findings made by the Court in Strickland that KB held rights and interests in the Maduwongga – Nyalpa Pirniku overlap area under the normative system of traditional laws and customs of the Western Desert, and that it is likely that KB came with her family at a young age into the Laverton and Burtville area from spinifex country further to the east of there.

49    Overall, I consider that the evidence advanced by Ms Spurling in support of her claim to hold native title rights and interests in the trial area is relatively weak.

50    The second condition for joinder is that it is in the interests of justice for Ms Spurling to be joined as a respondent. In my view, this factor weighs overwhelmingly against joinder.

51    The joinder of Ms Spurling at this stage of the proceeding would cause material prejudice to the Marlinyu Ghoorlie applicant and the State. The reasons for that are as follows.

52    The trial of the separate questions is being conducted on the basis of pleadings, in the form of concise statements, that have been filed by each participating party. If joined, it would be necessary for Ms Spurling to file a concise statement with respect to the facts, issues and contentions that she relies on, so that the other parties can understand the case sought to be made by Ms Spurling and respond appropriately. The case that Ms Spurling will seek to make if joined will necessarily be different to the case advanced by her family in the Maduwongga proceeding, as that case was rejected by the Court in Strickland and the proceeding was dismissed.

53    Lay evidence, both evidence in chief and cross-examination, has already been given in this proceeding. If Ms Spurling were to be joined, new issues would be likely to arise that may need to be addressed by the parties through adducing additional lay evidence. This would require the parties to recall witnesses to adduce such evidence, or call further witnesses, with the prospect of further cross-examination for those witnesses. Additionally, Ms Spurling seeks to rely on the evidence given by her mother, Mrs Strickland, in the Maduwongga – Nyalpa Pirniku overlap proceeding and the evidence of her aunt, Mrs Nudding, in this proceeding during the preservation evidence hearing. However, the receipt of that evidence without affording the other parties an opportunity to cross-examine Mrs Strickland and Mrs Nudding would be unfair. Their evidence was given in support of the Maduwongga claim, which has been dismissed. The parties would require an opportunity to cross-examine those witnesses on the basis of the different claim sought to be advanced by Ms Spurling if joined.

54    Expert evidence has been filed in this proceeding, including supplementary expert evidence on the basis of the lay evidence that has been given. A conference of experts is to be held shortly and the hearing of the expert evidence is currently scheduled for the week commencing 11 December 2023. None of that could proceed if Ms Spurling were to be joined and Dr Mathieu permitted to give expert evidence. The parties would require time to consider the case sought to be advanced by Ms Spurling, and time to consider the report of Dr Mathieu. Further, the expert witnesses would require time to respond to the report of Dr Mathieu.

55    It follows that the joinder of Ms Spurling would necessarily require an adjournment of the trial of the separate questions to enable Ms Spurling to plead her case, the further hearing of lay evidence, and the subsequent hearing of expert evidence. In my view, the necessary adjournment would be in the order of four to six months. The consequences would be a very substantial increase in the costs of the proceeding, including duplication of costs by reason of the parties having to prepare lay and expert evidence twice.

56    The explanation proffered by Ms Spurling for the delay in her joinder application is wholly unsatisfactory. Ms Spurling’s affidavit provides no details concerning the steps taken by her following the dismissal of the Maduwongga proceeding to obtain advice about being joined as a respondent to this proceeding. An application could have been made, and should have been made, immediately following the dismissal of the Maduwongga proceeding. If an application had been made at that time, Ms Spurling’s involvement in the proceeding might have been able to have been accommodated without significant disruption to trial preparation or causing a duplication of costs.

57    I reject entirely Ms Spurling’s explanation that her lawyers required time to “prepare a brief to Dr Mathieu with very limited access to relevant documents in the Maduwongga claim” and that Dr Mathieu “required time to prepare and finalise the October Report”. First, there was no necessity for Ms Spurling’s application to be supported by Dr Mathieu’s report. Second, there is no explanation of why Ms Spurling’s lawyers had limited access to relevant documents in the Maduwongga claim, when the claim was brought on behalf of Ms Spurling’s family and evidence was adduced (and thereby became publicly available) in the Maduwongga – Nyalpa Pirniku overlap proceeding. Third, it is apparent that Dr Mathieu had been working on her report since September 2022, and Dr Mathieu continued to work on the report until 16 October 2023. While there is no transparency with respect to the brief originally given to Dr Mathieu about the report, it is tolerably clear that she prepared the report for the “Nudding-Strickland families” as referred to in her report.

58    Having regard to:

(a)    the relatively weak evidence advanced by Ms Spurling in support of her claim to hold native title rights and interests in the trial area;

(b)    the material prejudice that would be caused to the Marlinyu Ghoorlie applicant and the State by the joinder of Ms Spurling at this stage of the proceeding; and

(c)    the wholly unsatisfactory explanation proffered by Ms Spurling for the delay in her joinder application,

in my view the joinder of Ms Spurling as a respondent to the Marlinyu Ghoorlie application is not in the interests of justice.

Conclusion

59    In conclusion, the application by Ms Spurling to be joined as a respondent to this proceeding is refused. It follows that leave will not be given for the filing of the report of Dr Mathieu. Ms Spurling’s application is therefore dismissed.

60    In its written submissions, the Marlinyu Ghoorlie applicant sought an order for its costs of the joinder application to be paid by Ms Spurling. Given the conclusion I have reached on the application, a question arises whether Ms Spurling should be ordered to pay the Marlinyu Ghoorlie applicant’s costs.

61    The default position in native title proceedings is that each party must bear its own costs. Section 85A provides as follows:

(1)     Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

Unreasonable conduct

(2)     Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first‑mentioned party to pay some or all of those costs.

62    A question arises whether the application made by Ms Spurling, at the time it was made, was unreasonable. I will make orders for Ms Spurling to file and serve a brief submission on the question of costs and for the Marlinyu Ghoorlie applicant to file a brief submission in reply.

Associate:

Dated:    16 November 2023

SCHEDULE OF PARTIES

No: WAD647/2017

Federal Court of Australia

District Registry: Western Australia

Division: General