Federal Court of Australia

Ohlsen on behalf of the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People v Attorney General of New South Wales (No 2) [2024] FCA 937

ORDERS

THE COURT ORDERS THAT:

1.    Ms Betty Joyce Pearce (née Clark)’s oral application for dispensation from rule 4.01 of the Federal Court Rules 2011 (Cth) in order to allow her daughter, Ms Sophia Pearce, to assist in her interlocutory application and make submissions on her behalf at the interlocutory hearing is granted.

2.    The interlocutory application filed on 13 August 2024, whereby Ms Betty Joyce Pearce (née Clark) sought to be joined as a Respondent, is dismissed.

3.    Costs be reserved.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an interlocutory application filed by Betty Joyce Pearce (née Clark) by which she sought an order that she be joined as a respondent to NSD 38 of 2019 and for the consent determination listed for 14 August 2024 at 10:00am, in respect of native title rights and interests proposed to be held by the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People, to be vacated. The interlocutory application was lodged with the Court on 12 August 2024 at 5:15pm and was made pursuant to s 84(5) of the Native Title Act 1993 (Cth). It was originally lodged incorrectly as correspondence but, upon this being discovered by the Court’s Registry, was accepted for filing on 13 August 2024 at 2:09pm. The interlocutory application was urgently served upon the parties that afternoon.

2    The interlocutory application was listed for hearing at 5:00pm on 13 August 2024 and concluded at approximately 7:13pm. At the hearing, I dismissed the interlocutory application and provided a brief summary of the reasons for my judgment, with written reasons to be provided in due course.

3    As a result of my decision on the interlocutory application, the consent determination proceeded on 14 August 2024 as listed: Ohlsen on behalf of the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People v Attorney General of New South Wales [2024] FCA 900.

4    My written reasons for dismissing the interlocutory application are set out below.

2.    BACKGROUND

5    On 14 March 2012, a native title claimant determination application was filed with the Court under s 61 of the Native Title Act on behalf of the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People. For the purposes of these reasons, I describe the members of the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People who are authorised to make the application on behalf of the native title claim group as the Native Title Applicant.

6    The native title application concerns a large area of land in New South Wales and, relevantly, has always included Ivanhoe and nearby areas at its boundary.

7    The Native Title Applicant is represented by NTSCORP Limited.

8    The first respondent to the native title application is the Attorney-General of New South Wales (the State).

9    On 4 December 2015, the State wrote to the Native Title Applicant advising that the Attorney-‍General had given approval for the State to enter into negotiations with the Native Title Applicant with the view of settling the proceeding by way of a consent determination.

10    Negotiations for a consent determination progressed for several years and involved judgments of the Court resolving outstanding tenure disputes: see Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169; and Attorney-General (NSW) v Ohlsen [2022] FCAFC 38; (2022) 290 FCR 173.

11    On 13 June 2024, the Court ordered that the proceeding be listed for a consent determination before me on 14 August 2024, in or around Cobar, at a time to be fixed.

3.    THE INTERLOCUTORY APPLICATION

12    Ms B Pearce, by way of her interlocutory application, sought the following orders:

1.    The consent determination hearing be vacated.

2.    The matter be referred for urgent mediation before a Judicial Registrar.

3.    The Judicial Registrar provide a report about the status of the matter to Justice Burley relating to the mediation as soon as possible.

4.    Betty Joyce Pearce nee Clark be joined as a party to the proceeding under s 84(5) of the Native Title Act 1993 (Cth); and

5.    Any such orders as the Court deems appropriate.

13    The interlocutory application was supported by an affidavit of Sophia Pearce, Ms B Pearce’s daughter. Ms S Pearce gave evidence on her mother’s behalf due to her mother’s age and health: affidavit of Ms S Pearce at [1] (Pearce affidavit). No evidence was led directly by Ms B Pearce.

14    Ms B Pearce appeared before me with her daughter. She indicated that she wished for the Court to read Ms S Pearce’s affidavit and for her daughter to speak on her behalf. I granted Ms S Pearce leave to appear and make submissions on her mother’s behalf on this basis, and Ms S Pearce’s affidavit was read in support of the interlocutory application.

15    The Native Title Applicant, represented by NTSCORP, opposed the interlocutory application. The following evidence was read in opposition to the interlocutory application:

(1)    an affidavit of Natalie Rotumah, Chief Executive Officer of NTSCORP, affirmed on 13 August 2024;

(2)    an affidavit of Alexandra Emily Donaldson (née Crowe), anthropologist, affirmed on 13 August 2024;

(3)    paragraphs 23 and 30 of an affidavit of Ms Donaldson affirmed on 24 July 2024;

(4)    paragraphs 4–10 of an affidavit of Matilda Rae Vaughan, senior solicitor at NTSCORP, affirmed on 24 July 2024; and

(5)    paragraphs 11–12 of an affidavit of Sandra Joan Brown, Acting Principal Legal Officer within the Native Title Claims and Advice team in the NSW Department of Planning, Housing and Infrastructure, affirmed on 25 July 2024.

16    The other parties neither consented to, nor opposed, the interlocutory application, although the State made submissions in relation to the interlocutory application to assist the Court.

17    I note that after my decision on the interlocutory application was made, the Native Title Applicant filed a second affidavit of Ms Rotumah affirmed on 13 August 2024 correcting two errors which were made in her original affidavit, and written submissions. While the written submissions embody the oral submissions which were made before me during the hearing, I have decided not to have regard to them in preparing these reasons as they were provided after the ruling was made.

3.1    The evidence and submissions in support of the interlocutory application

18    Ms B Pearce and Ms S Pearce are members of the Waakuu people kilpara (west winds walpanara) people and their traditional group is Barkandji: Pearce affidavit at [3]. Ms S Pearce believes that Ivanhoe and nearby areas are part of Barkandji Barindji traditional country.

19    A positive determination for the Barkandji Traditional Owners was made on 16 June 2015 in Barkandji Traditional Owners #8 v Attorney-General (NSW) [2015] FCA 604 (Jagot J) (Barkandji (No 1)), and on 22 August 2017 in Barkandji Traditional Owners #8 v Attorney-‍General (NSW) [2017] FCA 971 (Griffiths J) (Barkandji (No 2)). The Barkandji Traditional Owners were represented by NTSCORP in those proceedings. Neither of those determinations included Ivanhoe.

20    Ms S Pearce gave evidence that “[w]hen the Number 8 claim was finalised, Justice Jagot commented that there should be a new application to extend the boundary to include Ivanhoe and Bourke in the north”: Pearce affidavit at [48].

21    In relation to the steps taken by the Pearce family to extend the Barkandji Traditional Owners’ native title to include Ivanhoe and the timing of the interlocutory application, Ms S Pearce gave the following evidence.

(1)    On 16 February 2021, Ken Clark (Ms B Pearce’s brother) sent an email to the anthropologist, Ms Crowe, regarding Ivanhoe: at [5].

(2)    Ms B Pearce, Mr Clark and Ms S Pearce first learned that the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People’s native title claim included Ivanhoe in May 2021: at [10].

(3)    They understood in 2021 that a claim document had been filed with the Court but thought that they would be consulted more because Ivanhoe is on Barkandji country. They were not aware that the Court application was progressing until March 2024: at [10].

(4)    On 15 March 2022, Ms S Pearce (“first”) became aware that Ivanhoe was included in the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People’s native title claim after reading the Ivanhoe Central School Newsletter and the Students Handbook 2022: at [19].

(5)    On 23 April 2023, NTSCORP staff were present at the AGM for the Barkandji Malyngappa Prescribed Body Corporate, the Barkandji Traditional Owners Corporation. NTSCORP provided a printed map and directed attendees to mark where they thought the Barkandji boundary should be. Ms B Pearce, Mr Clark and Ms S Pearce mapped their country around Ivanhoe and, after the meeting, the map was taken away by NTSCORP. During the meeting, they requested to see the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People’s maps and NTSCORP refused this request on the basis of confidentiality: at [11]–[18].

(6)    On 10 December 2022, Ms B Pearce, Mr Clark and Ms S Pearce attended the Barkandji Traditional Owners AGM. Staff from NTSCORP were present at this meeting. During the meeting, Ms B Pearce and Ms S Pearce spoke about “the extension of the Barkandji Traditional Owners claim area boundaries asserting our interests in those areas southeast of Ivanhoe and to include Mossgiel as the outer boundary south of Ivanhoe 50 kilometres from the township”: at [24]. A motion was passed regarding this issue after a new board had been elected at the meeting. Ms S Pearce did not have a copy of the minutes of the meeting and does not know if minutes were taken: at [23]–‍[27].

(7)    On 3 December 2023, Ms B Pearce and Mr Clark attended the Barkandji Native Title Group Aboriginal Corporations AGM, and again raised the issue of extending the boundary to include Ivanhoe and nearby areas: at [28]–[30].

(8)    On 8 March 2024, Ms B Pearce received a phone call from a representative of NTSCORP in which she was advised of this Federal Court proceeding and that the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People native title claim included Ivanhoe: [31]–[32].

(9)    On 12 March 2024, Mr Clark raised with NTSCORP his concerns that Ms B Pearce had not received support in relation to their claims over Ivanhoe. Despite NTSCORP indicating on 11 June 2024 that they would meet with Ms B Pearce regarding her concerns, no such meeting occurred: at [34]–[36].

(10)    On 17 June 2024, they became aware that the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People native title claim was listed for a consent determination on 14 August 2024: at [37].

(11)    On 4 July 2024, Ms S Pearce learned that NTSCORP was a party to this proceeding: at [38].

(12)    On 5 July 2024, Ms B Pearce and Ms S Pearce attended the Barkandji Traditional Owners Board Directors meeting. Ms B Pearce advised the Board Chairperson, Leroy Johnson, about the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People’s proceeding and stated that the Barkandji Prescribed Body Corporate should apply to become a respondent. NTSCORP staff advised them that they would need to apply for assistance to become a respondent, that the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People’s native title claim had progressed, and that it may be too late to become a respondent: at [39]–[43].

22    Ms S Pearce also gave evidence about her mother and the “Barkandji peoples’ spiritual connection” to the Ivanhoe area: Pearce affidavit at [44]–[53].

23    Ms S Pearce submitted that they were bringing the application for joinder “as Barkandji [Barindji]. [Barindji] people are a sub-clan… We are Kilp[a]ra Wa[aku]u people”: transcript of the interlocutory hearing (T)-14.8–10. She submitted that there was a delay in bringing the interlocutory application because until recently they were not aware of the progress of the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People’s native title claim, and they believed that NTSCORP had been representing the Barkandji People. She further submitted that their interests would be prejudiced if Ms B Pearce was not joined as a respondent. While their claims were not supported by anthropological evidence, if joined as a respondent, they would have an opportunity to prepare such evidence.

24    Ms S Pearce relied on the following authorities: Douglas on behalf of the Kabi Kabi First Nation Traditional Owners Native Title Claim Group v State of Queensland [2023] FCA 615 (Collier J) (Kabi Kabi (No 1)); and Gamogab v Akiba [2007] FCAFC 74; (2007) 159 FCR 578.

4.    RELEVANT LEGAL PRINCIPLES

25    Section 84(5) of the Native Title Act provides that the 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”.

26    Justice White helpfully summarised the principles relating to joinder in Agius v State of South Australia (Ngarrindjeri Native Title Claim Parts A and B) [2017] FCA 1162 at [5]–[6] as follows:

an application for joinder must show that:

(a)    the person has an interest;

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

(c)    in the exercise of its discretion (in the interests of justice), the Court should join the person as a party.

The authorities also show that the kinds of interests which may satisfy the first of those three elements “need [not] be proprietary, legal or equitable in nature”: Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 at 7-8; Sumner at [13]. The interests “must be greater than those of a member of the general public”, “genuine”, “not indirect, remote, lacking substance”, “capable of clear definition” and “of such a character as to be capable of being affected in a demonstrable way by a determination” in the proceedings: Byron Environment Centre at 7; Sumner at [13]; Far West Coast at [28]. The authorities have also recognised that traditional Aboriginal rights, not necessarily amounting to native title rights and interests, may satisfy the requirements of s 84(5): Far West Coast at [32]; Byron Environment Centre at 8.

27    The question of whether a person has “an interest” of a relevant kind for the purposes of s 84(5) was considered in Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369. In that case, Rangiah J held at [21](3) that:

A member of another native title group may be joined as a respondent for the purpose of “defensively asserting” native title rights and interests. Such a person is only permitted to pursue a personal claim to such rights and interests: that is, to protect them from erosion, dilution or discount.

28    Similarly, in Douglas on behalf of the Kabi Kabi First Nation Traditional Owners Native Title Claim Group v State of Queensland (No 4) [2024] FCA 641 (Kabi Kabi (No 4)) at [27] and [30], Collier ACJ dismissed an application to be joined as a respondent where the joinder applicant was pursuing “representative interests for the Wakka Wakka People”, as opposed to a “personal interest which may be affected by a determination of Native Title in the proceeding” (emphasis in original). In so holding, her Honour correctly held at [26], that s 84(5) required the joinder applicant to establish “a personal interest, not for the purpose of acting as a representative to assert native title rights on behalf of a group” (emphasis in original). As her Honour further explained (citing Blucher at [21]) “this is because the combined effect of ss 13, 61, 213 and 225 [of the Native Title Act] is that an application for a determination of native title can only be made by a duly authorised applicant using the procedures in Part 3 of the Native Title Act” (emphasis added).

29    This is not to say that, merely because an individual may belong to a different native title claim group, their interest will necessarily be representative in nature and fall outside the scope of s 84(5). For example, in Kabi Kabi (No 1), the prospective respondents were members of the Butchulla people and sought to be joined as respondents to the proceedings in order to dispute the Kabi Kabi People’s claim for native title in certain areas. Justice Collier found that, while the prospective respondents “plainly gave evidence that the disputed area was Butchulla land rather than Kabi Kabi land, the tenor of their submissions and the evidence was that they individually have custodial and protective functions in that land”: at [76] (emphasis in original). Further, while it is not a legitimate objective of a joinder application to seek to have native title rights and interests recognised as a respondent to a claim, her Honour considered that another purpose for the joinder application may be for the individuals to reach an agreement with the Kabi Kabi People regarding the disputed area: at [79]–[81].

30    Once a prospective respondent has established that they have a personal interest which may be affected by a determination in the proceedings, the following matters may be relevant to the Court’s exercise of its discretion as to whether to allow the joinder application:

(1)    any prejudice to the prospective respondent if the joinder application is refused;

(2)    the timeframe within which the application for joinder was brought and the explanation for any delay;

(3)    the extent to which the native title application was in the public domain;

(4)    any prejudice to the existing parties; and

(5)    the public interest in proceedings in this Court, including native title proceedings, being conducted as quickly, inexpensively and efficiently as possible.

(See Ngarrindjeri at [29]–[42] (White J); Agius v State of South Australia (No 6) [2018] FCA 358 at [53]–[54] (Mortimer J, as her Honour then was); and Kabi Kabi (No 4) at [31]–[37] (Collier ACJ)).

31    The last of these considerations reflects the overarching purpose of civil practice and procedure in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). Section 37M, relevantly, provides that:

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

(2)    Without limiting the generality of subsection (1), 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 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;

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

32    Section 37M requires the Court to exercise powers in a way that best promotes this purpose. Furthermore, s 37N not only imposes duties upon lawyers to act in a way which gives effect to the overarching purposes under sub-s (2), but also directly upon parties, including persons such as Ms B Pearce, requiring that they “must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose”: s 37N(1) of the Federal Court of Australia Act 1976 (Cth).

5.    DISPOSITION

33    For the reasons below, it is clear that Ms B Pearce seeks to vindicate a representative, rather than a personal, interest in this proceeding. Accordingly, there is no power under s 84(5) of the Native Title Act to join her as a respondent to this proceeding. Further and in any event, even if Ms B Pearce had a relevant interest in the proceeding, I do not consider that it would have been in the interests of justice to join her as a respondent to the proceeding.

5.1    Ms B Pearce has a representative, rather than personal, interest which may be affected by the consent determination

34    I consider that the evidence and submissions of Ms S Pearce demonstrate that Ms B Pearce is pursuing a representative interest for the Barkandji People, rather than for herself personally.

35    First, while the evidence of Ms S Pearce refers to traditional customs and knowledge having been passed down by the women in their family, it was clear from her evidence that her concern was to have the opportunity to assert a claim on behalf of the Barkandji People that the area around and including Ivanhoe was part of Barkandji Barindji country. For example, it was Ms S Pearce’s evidence that:

(1)    she had always been told that Ivanhoe is part of Barkandji Barindji traditional country, Barindji being a subclan of Barkandji and this is common knowledge (Pearce affidavit at [3] and [22]);

(2)    it was only in the last five years that Ngiyampaa people claimed Ivanhoe as their country (at [22]);

(3)    as set out in detail at [21] above, Ms B Pearce, Mr Clark and Ms S Pearce believed that the Barkandji Traditional Owners’ native title boundary would be extended to include the Ivanhoe area (with NTSCORP progressing this claim), and took a number of steps within the community to press for this extension;

(4)    the concern is that the Court “will not have heard from Barkandji Barindji people and it will be too late once the determination is made to speak for our country around Ivanhoe” (at [36]);

(5)    “Mossgiel (south of Ivanhoe) should be the Barkandji boundary and this was not included in the Number 8 Barkandji Claim… I believe that this was intended to be part of the boundary extension that was never actioned by NTSCorp” (at [45]–[46]);

(6)    if the consent determination is made, Ms B Pearces’ and the Barkandji People’s spiritual connection to these parts of country will be harmed (at [49]); and

(7)    Barkandji People have always engaged in cultural practices on the “contested country” (at [51]).

36    Secondly, in the course of her oral submissions, Ms S Pearce confirmed that her mother was seeking to be joined on a representative basis. As noted above, Ms S Pearce submitted that they were bringing the claim “as Barkandji [Barindji]. [Barindji] people are a sub-clan… We are Kilp[a]ra Wa[aku]u people”: T-14.8–10.

37    Further, after hearing submissions from the Native Title Applicant and the State which explained that a representative interest was not sufficient for the purposes of s 84(5) of the Native Title Act, I had the following exchange with Ms S Pearce (T-38.16–32):

HER HONOUR: Ms Sophia Pearce, can I just ask, just to be absolutely clear, my understanding is you seek to be joined as a respondent – or your mother, I should say seeks to be joined as a respondent because the group who you say you represent, which is not just your family, it’s wider, seek to have their rights recognised and vindicated with respect to part of the area that will be subject to the consent determination. Is that correct?

MS S. PEARCE: That’s correct.

38    It follows that Ms B Pearce has not demonstrated that she has a relevant type of interest for the purposes of s 84(5) of the Native Title Act. In reaching this view, I had no reason to doubt the sincerity of Ms B Pearce’s application. However, s 84(5) of the Native Title Act does not permit the Court to join a party to a native title determination application in order to enable that individual to press a native title claim in a representative capacity on behalf of a group.

5.2    It is not in the interests of justice to join Ms B Pearce as a respondent

39    In the alternative, I considered whether I would have found that it was in the interests of justice to join Ms B Pearce to as a respondent to the proceeding even if I had accepted that Ms B Pearce had a relevant interest which may be affected by the consent determination for the purposes of s 84(5).

40    In this regard, the Native Title Applicant submitted that, because the native title rights and interests sought to be recognised in the consent determination are non-exclusive, and therefore the native title holders would not have the right to exclude Ms B Pearce or her family from any part of the determination area, it would not adversely affect their rights and interests. However, I accept that Ms B Pearce may experience detriment if the joinder application was dismissed. First, there is a distinction between an individual or group being able to engage in traditional practices on country as a matter of custom, as opposed to engaging in such practices on country pursuant to enforceable rights by reason of their recognition as native title rights under the Native Title Act. Secondly, separate from these proceedings, there is no ability for Ms B Pearce or the Barkandji Traditional Owners to seek to vary or revoke the proposed consent determination once made: see ss 13(1) and 61(1) of the Native Title Act. Nor can a native title claimant application be brought in the future with respect to the land and waters subject to the proposed consent determination once made: see ss 13(1)(a) and 68. Thirdly, Ms B Pearce’s ability to negotiate an agreement with the Native Title Applicant, in respect of the Ivanhoe area, may be detrimentally impacted by the proposed consent determination. I would, therefore, have given significant weight to the prejudice Ms B Pearce may experience if the joinder application was not granted in the exercise of my discretion.

41    However, “[t]here are multiple interests that the Court must balance under s 84(5) of the Native Title Act” (Agius (No 6) at [53] (Mortimer J)), and in my view those other interests or factors would have plainly outweighed the prejudice to Ms B Pearce. It follows that, if it had been necessary for me to decide the issue, I would have found that it was not in the interests of justice to join Ms B Pearce as a party to this proceeding for the following reasons.

42    First, Ms B Pearce was aware that Ivanhoe was not included in the Barkandji Traditional Owners’ native title. Indeed, as set out above, Ms S Pearce gave evidence that “[w]hen the Number 8 claim was finalised, Justice Jagot commented that there should be a new application to extend the boundary to include Ivanhoe and Bourke in the north”: Pearce affidavit at [48]. While Jagot J did not mention this in her reasons in Barkandji (No. 1) delivered in 2015, I accept for the purposes of this application that her Honour may have indicated in the course of argument that a new native title claimant application would be necessary if the Barkandji Traditional Owners wished to pursue a claim which embraced Ivanhoe and Bourke. Yet despite the time which has elapsed since the proceedings in Barkandji Traditional Owners #8 v Attorney-‍General (NSW) have been finalised and any comments by Jagot J to the effect alleged were made, no such application has ever been made by individuals authorised by the Barkandji Traditional Owners to pursue such a claim.

43    Secondly, while Ms B Pearce may not have been aware of the progress of the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People’s native title claim until recently, she has been aware that the claim included Ivanhoe since May 2021. Further, even once she became aware of the proposed consent determination and that NTSCORP was a party to this proceeding, Ms B Pearce waited over a month to lodge this application. The application was effectively lodged one day before the proposed consent determination was to be held on country at Cobar, and when the parties and the Court were travelling to Cobar.

44    Ms S Pearce sought to explain the delay on the basis that she, her mother, and her family had believed that NTSCORP was representing their interests in respect of Ivanhoe. In response Ms Rotumah deposed that (at [4]–[5] of her affidavit):

To the best of my knowledge and from reviewing NTSCORP’s records I am not aware of Mrs Pearce ever making a formal request for NTSCORP’s assistance in relation to the filing of a native title determination application in the Ivanhoe area or in relation to the filing of joinder in relation to Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People native title determination application (NSD 38 of 2019).

At no time have I or any other NTSCORP staff members told Barkandji People or the Barkandji Native Title Group Aboriginal Corporation RNTBC (ICN 4740) that NTSCORP would assist them to file a native title determination application which would overlap the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People native title determination application (NSD 38 of 2019).

45    Nonetheless, NTSCORP indicated that, due to the lateness of the application, they were unable to provide a comprehensive response to Ms S Pearce’s evidence. I accept that NTSCORP was not given sufficient time to respond to the allegations that they were effectively in a position of conflict. In circumstances where NTSCORP has not been given a fair opportunity to respond to the allegations, I am unable to give the explanation by Ms B Pearce and Ms S Pearce for the delay any weight. The delay in bringing this application is therefore a matter to which I would have afforded very significant weight.

46    Thirdly, even if Ms B Pearce was not aware of the specific details of the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People’s native title claim, the existence of the claim was plainly in the public domain. Ms Brown in her affidavit at [11]–[12] states:

The native title determination application was notified by the National Native Title Tribunal on 15 March 2012, with the notification period between 5 September 2012 and 4 December 2012.

On 12 April 2012, the Applicant’s native title determination application was accepted for registration by the National Native Title Tribunal and entered on the register of native title claims kept by the National Native Title Tribunal pursuant to section 190A of the Native Title Act 1993 (Cth).

47    No issue was raised on this application concerning compliance with the notification requirements under the Native Title Act. Further, the native title application has been the subject of numerous attendances in the Court over the twelve years since it was originally filed.

48    Fourthly, I consider that there would be a significant prejudice to the Native Title Applicant if the application for joinder was granted. The proposed consent determination listed for 14 August 2024 would have to be vacated. This would, therefore, deny the Native Title Applicant legal recognition of their claimed native title rights and interests for an indefinite period. I also accept that significant prejudice would be occasioned to the State, which has allocated considerable resources to discharging its obligation to be satisfied that there is a credible or coherent basis for concluding that the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People have established the relevant connection with the land and waters for the purposes of the Native Title Act. To a lesser, but nonetheless real, extent I also accept that the other respondents, who have also participated in the process resulting in the listing of a consent determination, would be prejudiced. In this regard, it must be emphasised that the s 87 agreement between the existing parties took years to negotiate. Furthermore, if the application for joinder was granted, it is likely that further evidence would need to be prepared in relation to the contested area, given that Ms S Pearce and Ms B Pearce indicated their intention to adduce further evidence if joined, and it is possible that the matter may have to proceed to a contested hearing.

49    Finally, and relatedly, I do not consider that granting the joinder would be in the public interest of the Court conducting litigation as quickly, inexpensively and efficiently as possible. The Court has expended significant time and resources in progressing this proceeding to the point of listing it for a consent determination. Joining Ms B Pearce to the proceeding would result in Court resources associated with the listed consent determination being wasted. In addition, further Court time and resources would likely be required in resolving the dispute regarding the Ivanhoe area, whether by mediation or a contested hearing. This is a factor which lends further weight to refusing to grant the last-minute application for joinder.

50    In short, as Mortimer J (as her Honour then was) said in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 1) [2021] FCA 1463 at [23]:

… in a native title case, there are times to speak up and there are times where it may be too late to speak up. There are times to object and there are times where it may be too late to object… But as I have said in other cases in Western Australia (see Lawson on behalf of Badimaya Barna Guda People v Western Australia [2020] FCA 104 at [99], Sturt on Behalf of the Jaru Native Title Claim v Western Australia [2018] FCA 1923 at [57]), people cannot delay; they cannot wait until just before a big and expensive event like a consent determination and put forward a complaint that they could have made a lot earlier and could have made at a more appropriate stage in the proceeding. There is just too much disadvantage to other parties, and to the way the Court must conduct its judicial business, to allow that to occur.

6.    CONCLUSION

51    For these reasons, I dismissed the interlocutory application for joinder as a respondent under s 84(5) of the Native Title Act and reserved costs.

Associate:

Dated:    20 August 2024

SCHEDULE OF PARTIES