FEDERAL COURT OF AUSTRALIA

Warrabinga-Wiradjuri People #7 v Attorney General of New South Wales (No 4) [2024] FCA 1458

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 84(8) of the Native Title Act 1993 (Cth), each of the following respondents cease to be a party to proceedings:

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1.1    Background

1    This judgment addresses the question of whether 54 Indigenous respondents to the present native title proceedings should cease to be respondents pursuant to s 84(8) of the Native Title Act 1993 (Cth) and the separate question of whether another Indigenous respondent, Keith Kemp, should also cease to be a respondent. The application for their removal is brought by the applicant, who has provided a list of respondents that it contends ought to be removed from the proceedings.

2    The applicant brings a claim under the Native Title Act for the recognition of native title rights in land located within New South Wales. The application was notified in accordance with the Native Title Act and a large number of persons filed a Form 5: Notice of Intention to Become a Party to an Application (Form 5 notices) pursuant to s 84(3)(b) of the Native Title Act and reg 6 of the Native Title (Federal Court) Regulations 1998 (Cth) (1998 Regulations). The respondents now include the Attorney-General of New South Wales, the Commonwealth of Australia, several local Government councils and a number of Aboriginal representative bodies including the Bathurst Local Aboriginal Land Council, Deerubbin Local Aboriginal Land Council, Dubbo Local Aboriginal Land Council, Mudgee Local Aboriginal Land Council, NSW Aboriginal Land Council, Wanaruah Local Aboriginal Land Council, Wellington Valley Wiradjuri Aboriginal Corporation and NTSCORP Limited. In addition, there is a large number of individual indigenous respondents.

3    Of the Indigenous respondents the applicant contends should be removed:

(a)    49 individuals completed the statement of their interest in the claim in the following words or words to similar effect:

I am a Wiradjuri Person and this claim will impact on my Native Title interests and rights. These people do not hold exclusive rights to this country. They have broken our Traditional Laws and Customs under which they assert their Native Title Rights.

(b)    a further four individuals assert interests in similar terms on the basis of being Wiradjuri people.

(c)    Wellington Valley Wiradjuri Aboriginal Corporation, being the only relevant Corporate Indigenous respondent, asserts interest in similar terms on the basis of being a Wiradjuri group.

I refer to all 54 as having the claimed Wiradjuri native title interest.

1.2    Case management steps

4    The proceedings have been the subject of case management orders since at least 9 May 2018, when orders were made for a hearing to be conducted for the purpose of obtaining preservation evidence.

5    Since then, numerous steps have been taken. On 14 December 2018, at a jointly conducted case management hearing, Jagot and Griffiths JJ ordered that proceedings NSD 857 of 2017, NSD 543 of 2013 and NSD 1786 of 2016 be heard together and that any documents filed under the proceeding NSD 857 of 2017 would suffice for all three proceedings. At that time an order was also made for a mediation to be conducted between the applicant and some of the Indigenous respondents.

6    On 20 June 2019, case management orders were made by the Court that distinguished between “active indigenous respondents” and non-active Indigenous respondents. On that date, an order was made that discussions take place between NTSCORP and the active Indigenous respondents as to the potential for NTSCORP to provide them assistance with a view to there being a further mediation in the proceedings. Subsequently, on 26 July 2019, Griffiths J ordered that the matter be referred to further mediation between the applicant, NTSCORP and the active Indigenous respondents.

7    Further orders were made for mediations to be conducted involving various of the active Indigenous respondents and the applicant on 11 December 2019 and 16 February 2021.

8    Various procedural and interlocutory matters were attended to until 8 July 2022 (as amended by orders of 5 April 2023) when I made orders for the provision of a connection report and lay witness outlines of evidence by the applicant to the Attorney-General of New South Wales and the Commonwealth. On 3 August 2023, I made detailed timetabling orders for the resolution of the issues in the proceedings, including responsive material to the applicant’s connection report and lay witness outlines. I also directed that a further mediation between the applicant, NTSCORP and Indigenous Respondents be conducted, and that the applicant supply the connection material to NTSCORP and the participating Indigenous respondents (where requested) so that a mediation could be conducted to narrow the issues in dispute. I directed that any Indigenous respondent who intended actively to participate in the mediation file a notice indicating that they wished to do so, and provide relevant contact details.

9    On 4 December 2023 I made orders that:

(a)    included a notation that the active indigenous parties (being the participating Indigenous respondents and NTSCORP) had complied with the timetabling orders of 3 August 2023, including by the attendance at the mediations ordered; and

(b)    gave effect to a further timetable for steps to be taken in the proceedings, including that various mediations be conducted between the applicant and a number of active Indigenous parties.

10    I also made orders in the following terms concerning the individual Indigenous respondents (4 December 2023 Orders):

8.    On or before 7 February 2024 any of the individual respondents, other than the Thirty-fourth respondent (Mr John Riley) and Thirty-fifth Respondent (Mr Trevor Robinson), who are parties on the basis of their interests in the claim areas as a Wiradjuri person shall file and serve a notice:

a.    indicating that he or she wishes to take an active part in the proceedings and/or the mediation (a “Participating Indigenous Respondent”);

b.    indicating up-to-date contact details including full name, town of residence, mobile number and email address;

c.    indicating the interest in the claim area that they rely on to support being a respondent to the claim.

9.    Any of the individual respondents filing a notice in compliance with Order 8, shall on a confidential and without prejudice basis by 7 February 2024 provide to the Applicant:

a.    information identifying their place of birth;

b.    appropriate verifiable evidence of their apical ancestor/s and source of connection to the claim area;

c.    material relevant to their observation of traditional laws and customs connecting them to sites or locations within the claim area.

10.    On or before 12 February 2024, the Applicant is to inform the Registrar of the names of persons complying with Order 9.

11.    In the event orders 8 and 9 are not complied with, the proceedings be listed for the non-compliant respondents, who are parties on the basis of their interests in the claim area as a Wiradjuri person, to show cause why they should not be removed as parties.

12.    Those parties who have complied with Orders 8 and 9 are referred to mediation with the Applicant and other active respondents before Judicial Registrar Grant.

13.    Within seven days of these orders, the Registry is to provide a copy of these orders to those respondents who have filed Forms 5 relying on their interests in the claim area as a Wiradjuri person.

11    Order 8, requiring confirmation of up-to-date contact details of active Indigenous respondents, was made to ensure that the information given in the Form 5 notices were accurate. The requirement in orders 8 and 9 that those persons (other than Mr Riley and Mr Robinson) provide information and evidence as to their interest in the claim area was because the claimed Wiradjuri native title interest indicated in many of the Form 5 was not supported by any documentation (as the form requires) and did not contain any detail beyond that summarised in [3] above. Orders 14 and 15 of the 4 December 2023 Orders were to the same effect in relation to corporate Indigenous respondents.

12    At a case management hearing conducted on 26 February 2024 I was informed that 54 of the respondents who had identified in their Form 5 notice that they had a claimed Wiradjuri native title interest had not responded to the 4 December 2023 Orders.

13    On 1 March 2024, I made the following orders relevant to those non-compliant Indigenous respondents and Mr Kemp (1 March 2024 Orders):

5.    The respondents who did not comply with orders 8, 9,14 or 15 of 4 December 2023, who are parties on the basis of their assertion of an interest in the claim area as a Wiradjuri person, are to show cause why they should not be removed as a party to the proceedings.

6.    By 19 March 2024, any non-compliant respondent who opposes being removed as a party to the proceedings, is to file any material on which they rely and written submissions of no more than three pages in length, stating the basis for their objection to their removal as a party.

7.    By 2 April 2024, the Applicant is to file any material on which they rely and written submissions of no more than ten pages in length in response to any objections filed in compliance with order 6.

8.    Unless any objecting party or the Applicant indicates otherwise, the show cause responses will be decided on the papers.

9.    Within seven days of these orders, the Registry is to provide a copy of these orders to those non-compliant respondents listed in Schedule B.

10.    As far as it is within NTSCORP Limited’s power to do so, NTSCORP Limited will provide a copy of these orders to those non-compliant respondents listed in Schedule B, of whom it has contact details.

14    None of the non-compliant Indigenous respondents filed submissions in accordance with order 6. The applicant filed submissions on 2 April 2024 seeking removal of the non-compliant Indigenous respondents in accordance with s 84(8) of the Native Title Act and/or r 5.23 of the Federal Court Rules 2011 (Cth) (FCR). Mr Kemp, who does not claim to have an interest as a Wiradjuri person, filed submissions on 18 March 2024 in support of his retention as a respondent. I address the matters raised in his materials in section 3 below.

15    On 14 June 2024, I conducted a further case management hearing. Having regard to the absence of any engagement from the non-compliant Indigenous respondents, I was concerned that there was no contradictor to the position advanced by the applicant. Accordingly, on 14 June 2024 further orders were made requiring additional submissions from the applicant and submissions from the Attorney-General of New South Wales and NTSCORP indicating their position on the application and the reasons for such position. The Attorney-General filed submissions neither supporting nor opposing the application for removal, but ultimately contending that the show cause process be vacated. NTSCORP filed submissions generally in support of the removal of the non-compliant Indigenous respondents.

2.    THE APPLICATION TO REMOVE THE NON-COMPLIANT RESPONDENTS

2.1    The Evidence

16    Order 13 of the 4 December 2023 Orders and order 9 of the 1 March 2024 Orders required the Federal Court Registry, within seven days of the date of the orders, to provide a copy of those orders to the non-compliant Indigenous respondents who had filed Form 5 notices. Those orders were necessary because, for reasons that are not altogether clear, the details of the Form 5 notices are not made publicly available or otherwise made available to the other parties.

17    In order to demonstrate compliance with those orders, on 7 November 2024, Simon Grant, Judicial Registrar – Native Title, filed an affidavit addressing how that notice was given. He gives evidence that where the Form 5 notices provided an email address for a respondent, an email was sent to that address and that where only a postal address was provided, a letter was sent by post to that address. Copies of the relevant emails and letters are annexed to his affidavit. He further gives evidence that the Court maintains contact information provided to it by parties and annexes a schedule that sets out the up-to-date contact information provided to the court.

18    Registrar Grant’s evidence indicates that on or around 5 December 2023 for each of the parties in the proceedings, a copy of the 4 December 2023 Orders was sent by either email or post. By checking the detail in the Form 5 notices with the correspondence annexed to Registrar Grant’s affidavit, it is apparent that in the case of the non-compliant Indigenous respondents, the addresses accorded with that given in their Form 5 notices and, by checking these against the schedule of contact information, it may be inferred that none of these have been altered by notice to the Court.

19    On or around 4 March 2024, a copy of the 1 March 2024 Orders were sent to non-compliant Indigenous respondents under the cover of the following letter (or email in the same terms, if the Registry held an email address on file for that respondent):

20    Again, the evidence confirms that the email or postal address which the orders were sent to corresponded with the contact details given in the Form 5 notices.

21    Alexander Chalmers, Deputy Principal Solicitor at NTSCORP affirmed an affidavit in the proceedings that annexes an email from Emma Bently, Legal Case Manager – Native Title dated 4 March 2024, in the same terms as the above letter that attaches a copy of the 4 December 2023 Orders and the 1 March 2024 Orders. He gives evidence that he was the NTSCORP contact listed in Ms Bentley’s email of 4 March 2024 and that he has not been contacted by any of the non-compliant Indigenous respondents and, having made enquiries, nor has anyone in NTSCORP’s Research unit.

2.2    The submissions

22    In submissions filed on 2 April 2024, the applicant seeks orders pursuant to s 84(8) of the Native Title Act or alternatively r 5.23 of the FCR that each of the non-compliant Indigenous respondents cease to be a party. The applicant addresses the position of Mr Kemp separately. In relation to the former, it submits that the Court should exercise its discretion in favour of removal in light of the fact that none of the non-compliant Indigenous respondents have taken an active role in the proceedings. All have become parties by reason of their filing of Form 5 notices which supply a generic assertion of their interest as a claimed Wiradjuri native title interest and none have provided any further support or evidence that would enable them to be characterised as having a genuine, demonstrable and direct interest which might be affected by a determination of native title, citing Gomeroi People v Attorney General of New South Wales [2013] FCA 81 at [24]–[28] (Jagot J). Furthermore, the interests that the 54 non-compliant Indigenous respondents claim, to be a Wiradjuri Person or of Wiradjuri descent, are properly represented by two active Indigenous respondents in the proceedings, thereby satisfying the requirement identified in s 84(9)(a)(ii) of the Native Title Act. It submits that it would be antithetical to the policy and purpose of both the Native Title Act and also s 37M of the Federal Court of Australia Act 1976 (Cth) (FCAA) for completely non-responsive respondents to continue as parties to the proceedings. It, on that basis, submits that it is in the interests of justice to make such orders. The applicants are self-funded and have spent considerable amounts to ensure the progression of the proceedings, including by engaging with the active respondents and attempting to engage with the non-compliant Indigenous respondents. If not removed, the non-compliant Indigenous respondents could present a significant impediment to negotiations with the active respondents that could resolve the proceedings.

23    NTSCORP filed submissions on 26 August 2024 supporting the position taken by the applicant. The submissions set out the role that NTSCORP has taken in the proceedings including by engaging counsel to participate in mediation at various stages involving the applicant, the Attorney-General and several Indigenous respondents, funding an expert anthropological report for the purposes of mediation and directed to resolving or narrowing issues in disputes between the applicant, Attorney-General and active Indigenous respondents and funding the legal representation of several active Indigenous respondents to assist them to participate in mediation. NTSCORP submits that it has always been open for non-compliant Indigenous respondents to seek assistance from it, but none have sought assistance in relation to the show cause process and that it has expended significant resources in assisting other Indigenous respondents who have asserted an active interest in the proceedings.

24    The Attorney-General neither supports nor opposes the dismissal of the non-compliant Indigenous respondents. However, in response to my request that the Attorney-General provide assistance to the Court as an amicus curiae, it makes submissions in opposition to the removal application on two bases. The first is that the show cause process is set out in the 4 December 2023 Orders and 1 March 2024 Orders, but those orders do not refer to any specific legislative powers of the Court and the process was not otherwise commenced by interlocutory application. As a result, the applicant cannot rely on s 84(8) of the Native Title Act or r 5.23 of the FCR as the means to access the relief sought. The second is that there is insufficient evidence to support the proposition that the non-compliant Indigenous respondents have received notice of the show cause process.

2.3    Consideration

25    Three substantive issues arise as follows:

(a)    whether, in the circumstances, the Court has power to make the orders sought by the applicant;

(b)    whether adequate notice has been provided to the non-compliant Indigenous respondents of the application to remove them as parties to the proceedings; and

(c)    if, so, whether the apparent failure of the non-compliant Indigenous respondents to participate in the proceedings warrants orders that they cease to be a party to the proceedings either by operation of s 84(8) of the Native Title Act or r 5.23 of the FCR.

2.3.1    The question of power

26    The Attorney-General submits that the Court may only rely on its general case management powers to remove the non-compliant Indigenous respondents from the proceedings. That is because no interlocutory application was filed by the applicant specifying a statutory provision upon which it relies. He refers particularly to ss 37M, 37N and 37P(5) of the FCAA and r 1.32 of the FCR. He submits that the Court ought not to rely on powers under s 84 of the Native Title Act or r 5.23 of the FCR and that in the current circumstances it is not appropriate to exercise the case management powers of the Court under either s 37P(5) of the FCAA or r 1.32 of the FCR to remove parties from the proceedings, citing Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 14 at 154.

27    Section 37M of the FCAA provides that the overarching purpose of civil practice and procedure is to facilitate the just resolution of the dispute according to law and as quickly, inexpensively and efficiently as possible. Section 37N(1) imposes obligations on the parties, whether represented or not, to conduct themselves in a manner consistent with that purpose. Section 37P(5) provides that if a party fails to comply with a direction given by the Court in relation to the proceeding, the Court may make such order or direction as it sees fit. This is to be understood having regard to the caveat identified in JL Holdings, that case management is not an end in itself, but an important aid for ensuring the prompt and efficient disposal of litigation, the ultimate aim being to achieve the attainment of justice (see JL Holdings at p154).

28    In the present case the effect of the 4 December 2023 Orders and 1 March 2024 Orders is to require the non-compliant Indigenous respondents to take steps in the proceedings consistent with their interest asserted in the Form 5 notices. They did not do so. Whilst there are several mechanisms by which the Court has power to address such conduct, in my view the most appropriate, is by reference to s 84 of the Native Title Act. For the reasons explained below, section 84 has been interpreted by the Court to place obligations upon a respondent claiming an interest to do more than simply assert a mere interest and then sit back.

29    The language of the 4 December 2023 Orders and 1 March 2024 Orders directs the non-compliant Indigenous respondents, none of whom are legally represented, in simple terms, to come forward and indicate the basis for their assertion of an interest in the proceedings. The consequence of failing to do so is clearly spelt out in both sets of orders. In the 1 March 2024 Orders, order 5 provides that the result of non-compliance with the 4 December 2023 Orders is that they must “show cause why they should not be removed as a party to the proceedings”. In my view that was sufficient for those respondents to understand, at the very least, that they must take a step in the litigation to support the interest that they asserted in their Form 5. No guillotine order followed. An opportunity was afforded to them (by order 6) to explain why, in light of whatever they filed, they should remain as parties. Had they responded to the orders, the Court could then assess whether, as self-represented litigants, they would benefit from the provision of further information, time or legal advice. But the fact is that none responded at all in any manner to support their own interests.

30    As I explain in section 2.3.3 below, by operation of s 84 of the Native Title Act the Court has power to remove an Indigenous respondent who has not claimed a sufficiently expressed and supported interest in respect of the land the subject of a Native Title application. Although a power also reposes in the Court on the basis of r 5.23 of the FCR, in my view it is more appropriate to adopt the specific mechanism contemplated in the Native Title Act under s 84(8).

2.3.2    Notice to the non-compliant Indigenous respondents

31    The Attorney-General next submits that the evidence does not support the proposition that the non-compliant Indigenous respondents received copies of the 4 December 2023 Orders and 1 March 2024 Orders and that accordingly they have not been afforded natural justice on this application. The applicant responds by submitting that the Attorney-General embarked jointly with the active parties to address the difficulties caused by the non-compliant Indigenous respondents and together proffered these orders to the Court as a means by which the question of their continued participation as respondents would be addressed. It submits that the Court’s Registry provided assistance to the parties:

…by providing copies of the two sets of orders comprising the show cause process in order, in our submission, to provide the clearest indication of the authority by which the parties were required to show cause why they should not be removed. It is difficult to conceive what other choice the Registry had other than to send the orders to the addresses provided by those respondents.

32    The Form 5 was prescribed under the 1998 Regulations, which commenced on 30 September 1998. Regulation 6 provided that a notice under s 84(3)(b) may be in accordance with Form 5. Although amended in the Native Title (Federal Court) Regulations 2024 (Cth) (2024 Regulations), the 2024 Regulations did not become operative until 1 October 2024; reg 2 of the 2024 Regulations.

33    The Form 5 under the 1998 Regulations required the name and address of the person wishing to become a party to the proceedings, along with the name and “address for service” of a legal representative (if any) or a contact person (if the person is not legally represented). The Form 5 must be signed by or on behalf of the person wishing to become a party. Each of the Form 5 notices completed by the non-compliant Indigenous respondents was that required under the 1998 Regulations. The form requires the provision of a postal address, telephone number, facsimile, mobile phone and email address.

34    The requirement that a person wishing to be joined as a respondent complete contact details is analogous to the requirement in r 5.02 of the FCR that a respondent who has been served with an originating application “must file a notice for service, in accordance with Form 10, before the return date fixed in the originating application.” Rule 11.01(1) of the FCR provides that an address for service for a party not represented by a lawyer must include a place where a document may be left or to which a document may be posted and r 11.01(5) provides that such a person may provide an email address whereupon they agree that documents may be received at that email address. Rule 11.09 provides that a person may change their address for service by filing a notice of change of address for service and serving that notice on the other parties.

35    In my view, the Court is entitled to take it that the address given in the Form 5 by a person wishing to become a party is the correct address for service of documents, unless the Court has been notified of a change of address. By completing a Form 5 notice, notice is given to the Court that the person wishes to engage in the legal processes involved in the proceedings commenced by the applicant under the Native Title Act. This carries with it obligations on the part of a respondent to comply with directions made by the Court and participate in a manner that is consistent with the obligations that are imposed on all parties under the terms of the FCAA, including ss 37M and 37N. One of those implicit obligations includes providing a current address to which documents may be sent. In the absence of notification to the contrary, the Court and the parties are entitled to assume that the address in the form 5 notice is correct.

36    Order 9 of the 1 March 2024 Orders required the Registry to provide a copy of those orders to the non-compliant respondents as listed in Schedule B to the orders and order 10 provides that as far as it is within the power of NTSCORP, it is to provide a copy of those orders to any non-compliant respondents so listed for whom it has contact details.

37    The evidence of Mr Chalmers does not suggest that NTSCORP provided copies to any of the non-compliant Indigenous respondents. However, the affidavit prepared by Registrar Grant demonstrates that copies of each of the 4 December 2023 Orders and 1 March 2024 Orders were sent to the address provided by the non-compliant Indigenous respondents in their Form 5 notices. This was either by post to a physical address or by email, where an email address was notified.

38    Accordingly, I am satisfied that adequate steps have been taken to inform the non-compliant Indigenous respondents of the show cause process and give them an opportunity to respond.

2.3.3    The adequacy of the interest claimed by the non-compliant respondents

39    As noted above, the interest asserted by each of the non-compliant Indigenous respondents is to the same effect, namely that they have a claimed Wiradjuri native title interest and that the claim will impact their Native Title rights and interests. It asserts that the applicant does not hold exclusive rights to the country and that the applicant has “broken our Traditional Laws and Customs under which they assert their Native Title Rights”.

40    Form 5 requires, amongst other things, that the person wishing to become a party provide details of the interest claimed in relation to their application to become a party under s 61 of the Native Title Act. The commentary in the marginal notes in the form provides that the person must describe the nature of their interest and the manner in which it may be affected by a Native Title Determination. It also says:

Documentary evidence should be supplied. For example, if you hold a lease or licence in respect of the claim area please attach to this Form a copy or photocopy of that lease or licence. Identify the type of interest and its location in the claim area.

41    Section 84 of the Native Title Act concerns parties to proceedings under the Native Title Act. The relevant provisions of the Native Title Act for present purposes are sections 84(3), (5), (8) and (9). It relevantly provides:

Affected persons

(3)    Another person is a party to the proceedings if:

(a)    any of the following applies:

(i)    the person is covered by any of subparagraphs 66(3)(a)(i) to (vi);

(ii)    the person claims to hold native title in relation to land or waters in the area covered by the application;

(iii)    the person’s interest, in relation to land or waters, may be affected by a determination in the proceedings; and

(b)    the person notifies the Federal Court, in writing, that the person wants to be a party to the proceeding:

(i)    within the period specified in the notice under section 66; or

(ii)    if notice of an amended application is given under paragraph 66A(1A)(e) - within the period specified in the notice under that paragraph.

…

Joining parties

(5)    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.

…

Dismissing parties

(8)    The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.

Court to consider dismissing parties

(9)    The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:

(a)    the following apply:

(i)    the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and

(ii)    the person’s interests are properly represented in the proceedings by another party; or

(b)    the person never had, or no longer has, interests that may be affected by a determination in the proceedings.

42    There is no dispute that the non-compliant Indigenous respondents filed their Form 5 notices with the Court within the period specified in s 66 of the Native Title Act. Furthermore, it is at least arguable that by reason of the claim made by each of the non-compliant Indigenous respondents (see [3] above) that each has claimed a native title right or interest within s 84(3)(a) and that the claim per se is sufficient to satisfy that subsection. The applicant does not contend that the non-compliant Indigenous respondents are not parties to the proceedings, an approach which is consistent with the approach taken in each of Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2002] FCA 730 at [1] (Dowsett J) and Gomeroi People at [13] (Jagot J). I take the same approach here.

43    The question then arises as to whether the terms of ss 84(8) and (9) should be applied to order that the non-compliant Indigenous respondents cease to be respondents.

44    Under s 84(8), the Court may at any time order that a respondent cease to be a party to the proceedings. The discretion to do so is constrained by the requirement that the Court consider the factors identified in s 84(9) and is otherwise to be exercised judicially, in a manner that is consistent with the policy and purposes of the Native Title Act. However, the discretion under s84(8) is not limited to consideration of the factors in s 84(9). Without being exhaustive, the authorities indicate that the following factors are also relevant to the exercise of the discretion under the Native Title Act:

(a)    the legislative purpose to encourage parties to resolve native title claims by conciliation and negotiation;

(b)    the provisions of s 37M of the FCAA and the overarching purpose of facilitating the just determination of proceedings before the Court in the most inexpensive and efficient way possible;

(c)    the significant time, money and other resources invested in the proceedings by the active and participating parties, including in mediations and negotiations;

(d)    the probable delay in, if not significant impediment to negotiating an agreed outcome to the claim;

(e)    whether the parties’ interests are already adequately addressed by the claim group;

(f)    the discretion under s 84(8) is mirrored in that vested under s 84(5),

see Starkey v South Australia [2011] FCA 456; (2011) 193 FCR 450 at [48] (Mansfield J), CD (deceased) v State of Western Australia [2021] FCA 734 at [19] (McKerracher J), Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 5) [2014] FCA 650 at [10] (Gilmour J), Butterworth v Queensland [2010] FCA 325; (2010) 184 FCR 397 at [39] (Logan J); Alvoen on behalf of Wakaman People #3 v State of Queensland [2019] FCA 1469 at [28] (Reeves J).

45    Section 84(9) identifies two further factors. The first is that the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the substantive application and, if so, the person’s interests are represented in the proceedings by another party. That is not relevant in the present case. The claimed Wiradjuri native title interest of the non-compliant Indigenous respondents is not a right of public access. The second is that the person never had, or no longer has, interests that may be affected by a determination in the proceedings. This warrants further consideration.

46    The applicant submits that none of the non-compliant Indigenous respondents can be considered to have had or have interests that may be affected by the determination because, on the material available, their claimed Wiradjuri native title interest does not rise above a mere assertion or speculation such that it may not be characterised as a genuine interest, citing Byron Environment Centre Incorporated v Arakwal People [1997] FCA 797; (1997) 78 FCR 1 at 7 (Black CJ):

The nature and content of the right to become a party to proceedings for the determination of native title, with the power as a party in effect to veto the process of mediation and conciliation which the Act favours, suggests that the interests with which s 68(2)(a) and the related sections dealing with parties are concerned are interests that are not indirect, remote or lacking substance. The nature and content of the right also suggests that the interests must be capable of clear definition and, equally importantly, that they are of such a character that they may be affected in a demonstrable way by a determination in relation to the application.

47    There is force in this submission.

48    The reasoning of Black CJ was adopted by Jagot J in Gomeroi People in the context of an application under s 84(8). Her Honour considered a submission that a bare statement of interest, not dissimilar to the claimed Wiradjuri native title interest of the non-compliant Indigenous respondents in the present case, shows nothing more than a remote or insubstantial interest which does not rise above mere speculation as to whether, and if so how, such an interest may actually be affected in any way by a determination in the proceedings. In that case, 14 Dabee clan members completed the Form 5 with such a statement and filed no additional material, despite having opportunities to do so. Her Honour considered that the asserted interest was at a very high level of generality and amounted to nothing more than assertion. There, the applicant had filed material suggesting that the interests claimed were not justified. Her Honour adopted as applicable in the context of s 84(8) the following language of Bennett J in Peter Hillig as administrator of Worimi Local Aboriginal Land Council v Minister for Lands [2006] FCA 61 at [27] in concluding at [26] that the Dabee clan members should not remain as parties:

The right to become a party to proceedings for determination of native title under the Native Title Act is restricted to persons whose interest may be genuinely, demonstrably and not indirectly affected by a determination of native title and which are not remote or so insubstantial that it will be mere speculation as to whether and if so, how they may be actually affected by the determination.

49    In my view it is appropriate to exercise the discretion under s 84(8) in favour of orders that the non-compliant Indigenous respondents cease to be parties. In this regard the following matters are of particular relevance:

(a)    the non-compliant Indigenous respondents’ claimed Wiradjuri native title interest is expressed in a broad and generic form. It provides no details to identify how each respondent comes to have native title interests in the claim area or why it is that the applicant does not hold rights as claimed. Nor do any of the non-compliant Indigenous respondents supply documentary evidence to support their claim, as recommended in the marginal notes to Form 5;

(b)    at no stage since filing the Form 5 have the non-compliant Indigenous respondents elucidated the nature of their claims or provided material to support them;

(c)    the terms of the claimed Wiradjuri native title interest is at a very high level of generality and does not rise above assertion. The nature and content of the right is not defined clearly. It is analogous to the bare statement of interest of the 14 Dabee clan members identified in Gomeroi People;

(d)    it may be inferred that since 2017 the active parties, particularly the applicant, have incurred considerable expense in the conduct of the proceedings. The court record indicates that numerous mediations have been conducted over a number of years by a Registrar of the Court, including mediations concerning the interests claimed by the these respondents. Save for Mr Kemp, the non-compliant Indigenous respondents have participated in none; and

(e)    The orders of the Court on 4 December 2023 and 1 March 2024 required the non-compliant Indigenous respondents to takes steps in the proceedings, but none were taken.

50    The proceedings have involved multiple mediations, conducted for the purpose of attempting to refine and resolve issues, including between the applicant and other indigenous respondents. The non-compliant Indigenous respondents have declined to engage with that process. Furthermore, NTSCORP has made itself available to assist and advise the non-compliant Indigenous respondents in any aspect of their claim but at no point have any of them made contact with NTSCORP.

51    Balancing these matters together with the lack of engagement of the non-compliant Indigenous respondents in the action, the absence of information provided to support their claimed native title interest and the adverse effects of permitting them to remain as parties, potentially to come forward at a later date and inhibit the progress of the proceedings, in my view it is appropriate to make Orders that they be removed from the proceedings.

3.    MR KEMP

3.1    Introduction

52    Mr Kemp filed submissions in response to the show cause process set out in the 4 December 2023 Orders and 1 March 2024 Orders which defend his retention as a respondent to the proceedings on the basis of his interest in the claim area.

53    In response, the Court made orders on 14 June 2024 providing for the filing of supplementary submissions by the applicant in response to the matters raised by Mr Kemp, and giving Mr Kemp the opportunity to file any submissions in answer. The orders also provided for the filing of submissions in reply by the applicant and submissions by NTSCORP and the Attorney-General.

54    The applicant filed supplementary submissions in support and relies on the affidavit sworn by Susanne Rakoczy, solicitor in the firm representing the applicant, who gives evidence on the matters raised by Mr Kemp in his submissions. She addresses his claims to connection with apical ancestors of “Group X”, Wiradjuri apical ancestors, Gundungurra apical ancestors and Dharawal apical ancestors. She also gives evidence of Mr Kemp’s involvement as a respondent or an attempted respondent in several other native title proceedings in which he is said to have asserted different identities.

55    Mr Kemp filed further submissions and an affidavit in support in accordance with the Court’s orders of 14 June 2024.

56    NTSCORP has also filed submissions in response supportive of the application for Mr Kemp’s removal as a respondent. The Attorney-General did not file submissions relevant to the position of Mr Kemp.

3.2    Consideration

57    In his Form 5, Mr Kemp asserts that there is a large proportion of the claim area, which he defines as the “claim incursion” that is “outside the Wiradjuri area law jurisdiction” and that the claim will adversely affect his native title rights and interests and the rights of his group of members which he defines as “group (X)” and cross references [1]–[5] of attachment A to his Form 5. He asserts that he holds unrestricted proprietary rights in the area of the claim area, referring to [6] and [7] of attachment A and that members of Group X have a connection to the land concerned arising from ancestral ownership, referring to [8] of Attachment A.

58    The meaning of parts of attachment A is not clear, however, in [1] –[5] Mr Kemp asserts a native title interest in the claim area on the basis of an overlap with his (and Group X’s) own native title over the relevant area which is (as Mr Kemp alleges) not governed by Wiradjuri law, but the law of group X being land and waters along a portion of the Macquarie River to immediately east and south of the river. In the notes to attachment A, Mr Kemp refers to various resource materials. In an addendum Mr Kemp provides details that he refers to as his “genealogical descent from Group X”, referring to Louisa Loader (or Louth or South) as the name of his great grandmother. Louisa’s father was James Loader of Rockwell property near Leighwood in Taralga. She was baptised a catholic at the age of 12 under the surname Rockwell. She had a common law marriage with Michael Ryan, an Irish immigrant with whom she had a daughter, Sarah and a son, Martin. Martin went on to have a daughter, Alma, who was Mr Kemp’s mother.

59    Mr Kemp provides additional connection details in the notes of persons he claims are a “representative sample of members of Group X”.I It is apparent that he claims these persons are the apical members of Group X, and are said to be persons named (i) Werribrri, Billy Russell; (ii) Moyengully; (iii) King Burraga; (iv) Tarraga; (v) Dianna Mudgee; (vi) James Tracker McDonald; and (vii) Windradyne. These matters Mr Kemp contends are supported by his affidavit and his submissions.

60    The connection with the claim area asserted by Mr Kemp is tenuous, for the reasons set out below.

61    Mr Kemp asserts a native title interest in the application area that he says in his Form 5 derives from his descent from Group X, which he contends is not Wiradjuri. He lists a number of people whom he describes as a “representative sample” of Group X but does not assert descent from any of those people. Rather, in his Form 5, he contends that his genealogical descent from Group X comes through Louisa Loader. He describes Lousia and her son’s local country into which they were born as “an area surrounding a section of the ‘Abercrombie River’ that encloses the wide area of Leighwood…”. In his affidavit of 5 August 2024, Mr Kemp refers to his native title interests being sourced from Louisa being born into an area described as “a bend of the ‘Abercrombie’ River near ‘Golspie’ a settler community itself near ‘Taralga’ NSW”.

62    A difficulty for Mr Kemp is that according to the mapping evidence annexed to the affidavit of Mr Chalmers, the town of Golspie is, according to the Native Title Tribunal’s mapping tool, some 90 kilometres to the south-west of the south-western boundary of the present claim area.

63    A further difficulty is that although he claims genealogical descent from Group X through Louisa Loader, his claim does not rise above an assertion. Mr Kemp relies on a record in relation to his mother’s aunt, Sarah Ryan, born in 1867, where her mother, Louise is recorded as a “half caste”. However, there is no connection established between Louisa Loader and the apical members of group X.

64    Furthermore, despite the contention in his Form 5 that none of Group X is Wiradjuri, the evidence strongly suggests that the opposite is correct. In this regard, Ms Rakoczy deposes to locating 17 past and present native title claims listed on the National Native Title Tribunal website that include Dianna Mudgee as an apical Wiradjuri ancestor, eight past and present native title claims that list James Tracker McDonald as a Wiradjuri apical ancestor and six past and present native title claims that list Windradeyne as an apical Wiradjuri ancestor. Although not determinative, this evidence casts significant doubt on the unsupported assertions of Mr Kemp that these three individuals are not Wiradjuri apical ancestors.

65    Similarly, Ms Rakoczy conducted internet searches of Wirribirri Billy Russell and information available described him as “Chief of Gun-dun-gorra of the Burragorang Valley”. Those searches yielded a document entitled “My Recollections” dated from the 1914 which was obtained from the Trove site of the National Library of Australia. Those recollections are authored by William Russell, “Werriberrie” whom I take to be Wirribirri Billy Russell and which tends to confirm that Wirribirri Billy Russell was not part of Group X.

66    Ms Rakoczy undertook a search of past and present Gundungurra native title claims on the Federal Court’s Commonwealth Courts Portal website and identified 10 such claims. In none is Mr Kemp listed as an Indigenous respondent. Furthermore, the location of the Gundungurra claims apparent on the National Native Title Tribunal mapping site, Native Title Vision, indicates that the land that is the subject matter of each of those claims is not within the boundaries of the applicant’s claim in the present proceedings.

67    These matters are sufficient to cast considerable doubt on the veracity of the unsupported assertions of interest advanced by Mr Kemp. To those must be added a notation that Mr Kemp has been involved as an Indigenous respondent or attempted to become an Indigenous respondent to a number of previous native title proceedings where his assertions of entitlement to an interest are apparently different to those currently asserted.

68    For example, in Davis-Hurst on behalf of the Traditional Owners of Saltwater v New South Wales Minister for Land and Water Conservation [2003] FCA 541; (2003) 198 ALR 315 (Branson J), Mr Kemp was joined as a respondent (at [4]). He claimed there to be a descendant of the Pirripaayi people. The decision records that his purpose in seeking to be joined was in order to oppose the Native Title claims advanced (at [1]). In Davis-Hurst on behalf of the Kattang People v Minister for Lands [2009] FCA 725 (Graham J), Mr Kemp was the fifth respondent. He filed a notice of motion in the Court seeking orders to prevent the discontinuance of the proceedings on the basis that it would lead to the claimants being recognised as traditional owners in the area, to the exclusion of the Pirripaayi people (of which he claimed to be a member). Those orders were refused, the Court noting (at [11]) that the relevant agreement reached with the State of NSW specifically included the Pirripayi people.

69    Finally, in Lewis on behalf of the Warrabinga-Wiradjuri #6 v Attorney-General of New South Wales [2018] FCA 481 (Griffiths J), the Court had occasion to consider an interlocutory application filed by Mr Kemp to join the proceedings. In that case, Griffiths J set out at [24] what he understood Mr Kemp’s claim to have a sufficient interest to warrant joinder to be, quoting a paragraph of his affidavit:

On the facts before me:

(a)    I have personal knowledge of the history of the main application and associated applications (how the claim information arose).

(b)    I hold the correct description of the native title holders of the area of all relevant claims.

(c)    The Claimants crossed a Dreaming Track of another group (‘Group K’) and made claim additional to active multiple claims similarly extending beyond rights. Those extending ambit claims active so far are:

NSD543/2013

NSD443/2016

NSD1786/2016

NSD857/2017

NTD1895/2017

(d)    There may be other claims before or after the date of this affidavit that similarly infringe.

70    His Honour concluded at [40] that Mr Kemp’s interests were not sufficient to qualify as “interests” for the purposes of joinder in accordance with s 84(5) of the Native Title Act.

71    In the present circumstances, I am not satisfied that Mr Kemp has sufficient interest in the claim area to warrant his retention as a respondent to the proceedings. Although coloured by the presence of some documentation, none of it supports the existence of the sort of demonstrable interest considered to be necessary in Gomeroi at [24]–[28]. In exercising the discretion under s 84(8), I balance this against the prejudice that could be caused by a person who is not properly a party remaining as a respondent. One aspect of that prejudice is the enduring ability of such a respondent to attempt to thwart the outcome of any legitimately negotiated resolution of the case.

4.    DISPOSITION

72    For the reasons set out above, I consider it appropriate for each of the 54 non-compliant Indigenous respondents to be removed as respondents to the proceedings pursuant to s 84(8) of the Native Title Act. I also consider that the same order should be made in relation to Mr Kemp.

Associate:

Dated:    16 December 2024

SCHEDULE OF PARTIES