Federal Court of Australia

Forrest on behalf of the Kakarra Part A Native Title Claim Group v State of Western Australia (No 2) [2025] FCA 140

ORDERS

THE COURT ORDERS THAT:

1. Pursuant to s 84(8) of the Native Title Act 1993 (Cth) (Native Title Act), Gary Cooper, Maria Bandry, Norman Cooper and Victor Cooper cease to be parties to the proceedings.

2.    Pursuant to ss 84(8) and 84(9) of the Native Title Act, Mr Stephen Roy Miles ceases to be a party to the proceedings.

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

REASONS FOR JUDGMENT

MCEVOY J:

1    Before the court is an amended interlocutory application dated 7 February 2025. The applicant in the proceeding, Dennis Forrest and others on behalf of the Kakarra Part A Native Title Claim Group, together with the respondent State of Western Australia, seek the following orders:

(a)    pursuant to s 84(8) of the Native Title Act 1993 (Cth) (Native Title Act), Gary Cooper, Maria Bandry, Norman Cooper and Victor Cooper (the Cooper respondents) cease to be parties to the proceedings; and

(b)    pursuant to ss 84(8) and 84(9)(b) of the Native Title Act, Mr Stephen Roy Miles ceases to be a party to the proceedings.

2    The applicant relies upon written submissions dated 2 December 2024 and 21 January 2025, and the following affidavits in support of his application:

(a)    Ms Brooke Creemers dated 5 November 2024;

(b)    Mr Travis Tucker dated 6 November 2024;

(c)    Mr Fabian Ponton dated 7 November 2024;

(d)    Mr Michael Tucker dated 7 November 2024; and

(e)    Mr Fergus Stewart dated 8 November 2024, and 7 February 2025.

3    The State relies upon its written submissions dated 2 December 2024 and the affidavit of Ms Vonjie Song dated 4 November 2024.

4    The Cooper respondents rely on their written submissions dated 10 December 2024 and 10 February 2025, and the affidavit of Mr Norman Cooper dated 23 November 2024.

5    Mr Miles did not file any evidence or written submissions, nor did he appear at the hearing of the interlocutory application.

6    For the reasons that follow, I have concluded that the Cooper respondents and Mr Miles should cease to be parties to the proceedings and that there should be orders pursuant to s 84 of the Native Title Act to this effect.

BACKGROUND

7    This proceeding is an application for a native title determination brought pursuant to s 61(1) of the Native Title Act by the applicant on behalf of the Kakarra Part A Native Title claim group on 16 December 2020 (Kakarra Part A Application). The applicant seeks a determination of native title rights and interests over approximately 10,889 square kilometres of land in the southern region of Western Australia, approximately 30km south east of Kalgoorlie. It is important to note that although the Kakarra Part A Application was filed in December 2020, the members of the claim group have been seeking recognition of their claimed native title rights and interests since at least 1998.

8    Most of the parties to the proceeding have been actively engaged in negotiations for the last two years and have participated in mediation with a view to resolving the application by consent. These negotiations have included analysis of current and historic tenure within the application area, and consideration of how the claimed native title rights and interests will interact with other interests. These negotiations have resulted in a minute of consent determination being prepared.

9    As at 13 September 2024, there were 19 respondents to the Kakarra Part A Application. Each of those respondents, except for the respondents the subject of the present interlocutory application (being the Cooper respondents and Mr Miles), have signed the minute of consent determination.

10    The claim group, as proposed in the minute of consent determination, includes the descendants of the following 17 sets of forebears: Noona Roundhead; the spouses Miimiidhaanuu (Peter Mimitjunu or King Peter) and Maggie; Padalji (Jack Anderson); Yambii (Alice Yampi); Wipaana (also known as Wiparna, Noorie Weebunner or Maggie Weebunner); the spouses Jimmy Teatree and Judaabi (Tutaabii/Nellie Teatree); Morrel; Sinclair Beeberwin (father of Don Sinclair); the siblings Tuwarn (Linda Smith) and Juwi (Joey Walker); Thanang (Minnie Walker); Kileen Ngurmmpurma (Kyaleen Numbaarn), mother of Timothy Rundle; Toby Willis, Victor Willis and Betty Kennedy; Minnie Nimbud; Ungala (Mary Nugget); Bowie (mother of Lulu Bilsen); Jack Kennedy and Jean Kennedy Woggagi; and Thomas Henry Cooper. The members of the claim group have directed the applicant to pursue the making of a determination in the terms of the minute of consent determination, and have successfully nominated the Kakarra Aboriginal Corporation RNTBC (KAC) to be the prescribed body corporate.

11    The applicant has brought the amended interlocutory application, with the support of the State, so that the court can progress the finalisation of the proceedings by way of a consent determination.

THE STATUTORY REGIME

12    Section 84(8) of the Native Title Act provides that the court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.

13    Section 84(9) of the Native Title Act outlines the circumstances in which the court is to consider making an order under s 84(8) and is in the following terms:

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.

14    Section 84(8) of the Native Title Act plainly confers a wide discretionary power to remove a party to a proceeding, which is not confined to the particular circumstances set out in s 84(9): Butterworth v Queensland (2010) 184 FCR 397 at [39] (Perram J); Starkey v South Australia [2011] FCA 456 at [42] (Mansfield J) (Starkey); Lander v South Australia [2016] FCA 307 at [23] (White J); Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia [2023] FCA 930 at [42]-[43] (O’Bryan J) (Dimer). That is, s 84(8) of the Native Title Act has a scope of operation independent of s 84(9) and a person may be removed as a party to a proceeding under s 84(8) notwithstanding that s 84(9) is not satisfied (that is, even if the person has an interest which could be affected by a determination in the proceedings).

15    In Dimer (at [43]), O’Bryan J observed that the principles applicable to the exercise of the power of removal in s 84(8) of the Native Title Act are similar to those that operate with respect to the power of joinder in s 84(5), and that they encompass the following:

(a)    The power to remove a party to the proceeding is a broad discretionary power that must be exercised judicially. The touchstone for the exercise of the power is a decision about the interests of justice: TR (Deceased) on behalf of the Kariyarra - Pipingarra People v State of Western Australia [2016] FCA 1158 (Pipingarra) at [33] (North ACJ); Lewis on behalf of the Warrabinga-Wiradjuri People #7 v Attorney General of NSW (No 2) [2021] FCA 1269 (Lewis) at [10] (Griffiths J).

(b)    A significant factor in the exercise of the power is the nature of the interest claimed by the party to be removed, which must be capable of clear definition, not be indirect or lacking in substance, and is of a kind that it may be affected in a demonstrable way by determination of native title: Pipingarra at [34]-[35] and the authorities referred to; Lewis at [10].

(c)    A person claiming a competing native title interest which may be affected by the making of a determination in the application has an interest which justifies that person remaining a respondent to that application (as well as becoming one). Such a person is entitled to seek to protect their interest from erosion, dilution or discount: Pipingarra at [38] and the authorities referred to; Lewis at [10].

(d)    The dissatisfaction of a claim group member with the institution of proceedings or the manner of their conduct does not, of itself, warrant that person being joined, or remaining, a respondent party: Alvoen (on behalf of Wakaman People #3) v Queensland [2019] FCA 1469 at [28] (Reeves J); Miller v South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 (Miller) at [120] (White J); Lewis at [9].

(e)    However, if such a person contends that their native title rights and interests exist by reason of their membership of a different competing claim group, or where they dispute the composition of the claim group, they may be permitted to remain a respondent party: Alvoen at [28]; Miller at [121]-[129]; Lewis at [9].

16    Insofar as the term “interests” in s 84 of the NTA is concerned, in Dimer (at [41(a)]) O’Bryan J summarised the existing state of the law as follows:

The “interest” referred to in subs (5) is not the subject of the statutory definition of “interest, in relation to land or waters” in s 253 of the Act: Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310 (Chippendale) at [14] (Greenwood J). In that case, Greenwood J summarised the meaning of the word “interests” as used in subs (5) as follows (at [14]):

The interests asserted by an applicant for joinder need not be proprietary, legal or equitable in nature; must rise above an interest that an ordinary member of the public might hold; must be genuine; must reflect an affect upon the person’s interests beyond a mere emotional, conscientious or intellectual interest; and, must not lack substance: Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1; Woodridge (on behalf of the Gomilaroi People) v Minister for Land & Water Conservation for New South Wales (2003) 108 FCR 527, Dann (on behalf of the Amangu People) v Western Australia [2006] FCA 1249.

17    It may be accepted, therefore, that the essential question to be decided under s 84(8) of the Native Title Act is whether the removal of a person as a party is in the interests of justice. Obviously enough, the answer to that question involves a factual determination having regard to the particular facts and circumstances arising in a given matter.

18    Although it is a question of fact, it must be appreciated that the assessment of what the interests of justice require is not undertaken in a vacuum.

19    Always relevant will be a consideration of how best to promote the overarching civil practice and procedure as prescribed by s 37M of the Federal Court of Australia Act 1976 (Cth).

20    Also, it is clear that while a respondent party must demonstrate the existence of a relevant interest in order to be joined to a native title determination proceeding, possession of that interest alone is not a sufficient basis upon which to join (or retain) that party in the proceeding. The interests of justice require consideration of all the relevant facts and for those facts to be balanced and weighed as appropriate.

21    It is uncontroversial that a person who claims to possess native title rights and interests in a relevant area may possess a sufficient interest by which they ought to be joined under s 84 of the Native Title Act for the limited purposes of defensively asserting their rights and interests and to prevent their erosion, dilution or discount: Blackburn v Wagonga Local Aboriginal Land Council (2021) 287 FCR 1 at [54] (Mortimer, Perry and O’Bryan JJ) (Blackburn). Such a person, in their capacity as a respondent in a proceeding, may not act in a representative capacity and may not secure a determination of native title: Blackburn at [54]; Commonwealth of Australia v Clifton (2007) 164 FCR 355 at [57]-[58] (Branson, Sundberg and Dowsett JJ).

22    I accept that the circumstances in which it is appropriate for a party to assert their native title rights and interests defensively to oppose or qualify an applicant's claims are not fixed or closed. It will be a question of fact, having regard to the applicable principles, whether such a defensive assertion is properly made by that party.

REMOVAL OF THE COOPER RESPONDENTS

Relevant context

23    At the time the Kakarra Part A Application was made, the Cooper respondents were not named, by reference to a forebear, as being part of the claim group. Each of the Cooper respondents filed a Notice of Intention to Become a Party to the Kakarra Part Application (Form 5) on 14 September 2021, and they were joined as respondents to the proceedings on 29 September 2021. The basis for seeking joinder given in each Form 5 was in identical terms, and noted, inter alia:

The Kakarra A claim is overlapping our traditional lands. We will be severely affected should this claim proceed and be granted consent determination.

24    Each Form 5 also made reference to the Cooper respondents' grandfather, Thomas Henry Cooper, who was not included as a named apical ancestor in the Kakarra Part A Application as originally filed on 16 December 2020.

25    It is apparent that the Cooper respondents sought to be joined as respondents to the proceedings in order to assert their native title rights and interests defensively and to prevent their erosion, dilution or discount: see Blackburn, [54].

26    However, at a meeting in October 2023, members of the Kakarra Part A claim group invited the Cooper respondents to join and be part of the claim group. At a further meeting of the claim group on 7 December 2023, a resolution was passed by consensus that the Cooper respondents and their family members were to be recognised as members of the claim group who have rights and interests in the Gindalbie Station area, and were eligible for membership of the KAC.

27    At a further meeting of the Kakarra Part A claim group on 20 September 2024, the applicant was authorised to instruct its legal representative to sign the minute of consent determination.

28    Schedule seven of the minute of consent determination describes the native title holders as including persons who hold native title rights and interests in the application area through descent from forebears who were either living in the application area at effective sovereignty or born in the application area in the historic era, and who have a connection with the application area in accordance with traditional law and custom. The apical ancestors listed include Thomas Henry Cooper, who is the ancestor of the Cooper respondents.

29    It is apparent, therefore, that were a determination of native title to be made in the terms of the draft minute of consent determination, the rights and interests of the Cooper respondents in the Kakarra Part A claim area would be recognised, and would not be subject to erosion, dilution or discount.

The position of the Cooper respondents

30    Notwithstanding this, the Cooper respondents contend in answer to the present application that they ought to remain as respondents to the Kakarra Part A Application. By their submissions filed on 12 December 2024, further submissions provided to the parties and the court on the morning of 10 February 2025, and in oral submissions made on their behalf, the Cooper respondents submit that this is so for several reasons.

31    First, and perhaps most significantly, they submit that their interest in the Kakarra Part A Application is on the basis of their native title rights and interests in the application area as the descendants of apical ancestors and the last of the “original tribe” from that area. They submit that their removal as respondents would silence the voices of the true traditional owners of the application area.

32    Secondly, the Cooper respondents appear to dispute the connection of other members of the Kakarra Part A claim group members to the application area, submitting that the group members are not the rightful native title holders in the application area and that the lead applicant has failed adequately to address his connection to the application area.

33    Thirdly, the Cooper respondents appear to maintain that they have not signed the minute of consent determination (and thus should remain respondents) because they do not understand it and its effect on their interests. They also say that they have been treated unfairly throughout the course of negotiations with the applicant and other parties. The Cooper respondents submit that they are concerned about whether they will be treated fairly as members of the claim group. In this regard, they raise concerns in relation to:

(a)    the prescribed body corporate, being the KAC;

(b)    royalty and compensation payments which would be available to the Cooper family;

(c)    recognition of their family’s rights in the application area beyond Gindalbie; and

(d)    the operation and governance of the Kakarra Part A Application (if native title interests in the application area were to be recognised).

Determination

34    Notwithstanding the Cooper respondents’ submissions, it is not at all clear, on Mr Norman Cooper’s evidence, what interest the Cooper respondents are asserting are capable of being affected by the proposed determination of rights and interests given that the minute of consent determination includes a proposal to recognise their claimed rights and interests: see, in this regard, Forrest on behalf of the Kakarra Part A Native Title Claim Group v State of Western Australia [2023] FCA 529 at [14] (Bromberg J) (Forrest), the subject of which was an interlocutory application for joinder where the court determined that the joinder applicant had not established a “factual foundation which demonstrates that a relevant interests is affected”.

35    In circumstances where the Cooper respondents assert native title rights and interests in the application area and are members also of the claim group, I accept, for the following reasons, the submissions of the applicant and the State that the Cooper respondents do not have an interest capable of being affected by a possible determination in the terms of the draft minute of consent determination.

36    First, there is no evidence before the court which could demonstrate that the Cooper respondents are asserting a competing native title interest: see Dimer at [43(c), (e)]. As has been mentioned, one of the reasons they give for not signing the minute of consent determination is that they do not understand it. In this respect it may also fairly be observed that the Cooper respondents have had every opportunity to make an overlapping native title application. They have not done so, and there is no evidence that they have even attempted to do so (for example by seeking to convene an authorisation meeting for the purposes of s 251B of the Native Title Act).

37    To the extent that the Cooper respondents submit that the claim group members have no true connection to the application area, and that the applicant has failed to address his connection to that area, I reject that submission. The Cooper respondents have not adduced any evidence that would substantiate that submission, and the material before the court in, for instance, Mr Travis Tucker’s affidavit of 6 November 2024 and Mr Michael Tucker’s affidavit of 7 November 2024 provides connection evidence in support of the applicant.

38    Secondly, insofar as the Cooper respondents have concerns about the manner in which the proceedings have been conducted by the applicant, or about intramural matters, concerns of this nature are not “interests” warranting that the Cooper respondents remain parties to the proceedings: see Forrest at [18]; Dimer at [43(d)]. Nor are they properly to be regarded as matters for the court’s determination at this time. In that context, I accept the applicant’s submission that the Cooper respondents’ desire for recognition of their rights and interests beyond the Gindalbie area is an intramural matter and not a matter for the court to determine: see Starkey, at [63].

39    To the extent that the Cooper respondents raise concerns about the appointment of the KAC as the body corporate, and about the basis for its recognition of the claim group, it is not clear why these concerns warrant the Cooper respondents remaining parties. There is no evidence before the court as to how the appointment of the KAC as the prescribed body corporate would be unfair to the Cooper respondents and the descendants of Thomas Henry Cooper. Rather, the evidence before the court demonstrates that the applicant has written to the Cooper respondents confirming their eligibility for membership of the KAC, and that the KAC has gone so far as to amend its rule book to accommodate the Cooper respondents’ recognition.

40    As for the Cooper respondents’ concerns about the operations of the KAC more generally, I accept the applicant’s submission that the Cooper respondents should not be permitted to remain as parties so as to agitate concerns with respect to the internal structures and administration of the KAC. Rather, as a body corporate incorporated pursuant to the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), any concerns held by members of the KAC or common law holders of the application area ought to be directed to the Registrar of Indigenous Corporations.

41    Insofar as the Cooper respondents seek the court’s direction on royalty and compensation payments, I accept the applicant’s submission that these are not matters which can or ought be addressed in proceedings instituted by an application for a native title determination. In any event, as the applicant submits, pursuant to reg 8B of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (Prescribed Bodies Corporate Regulations), as the nominated registered native title body corporate the KAC would need to consult with, and obtain the consent of, the relevant common law holders of the application area in the making of any compensation application. Further, pursuant to reg 8 of the Prescribed Bodies Corporate Regulations, the KAC would need to consult with, and obtain the consent of, the common law holders of the application area prior to entering into any agreement relating to royalty payments and/or compensation.

42    In any event, I accept the applicant’s submissions that the circumstances permitting a claim group member to remain a respondent party will be rare: Starkey, [68]. The court’s preference is generally for disputes of the kind which the Cooper respondents seem to wish to raise to be dealt with post-determination and intramurally in order to reflect a policy preference inferred from the Native Title Act: Forrest at [19].

43    It follows, therefore, that the Cooper respondents should be removed as respondent parties to this application, and there will be an order to this effect. I accept that members of the Kakarra Part A claim group have been waiting for many years to have their native title rights and interests recognised. Some members of the group are old and in poor health. It is not disputed by any party that the Cooper respondents hold native title rights and interests in the application area and they have been accepted as members of the claim group (their forebear having been included in the description of the native title holders in the draft minute of consent determination). I accept that it is no longer in the interests of justice to allow the Cooper respondents to remain as respondents to the claim, and to delay a determination of native title by which their own rights and interests would be recognised in any event.

REMOVAL OF MR MILES

44    On 28 June 2021, Mr Stephen Roy Miles filed a Form 5 seeking to be joined as a party to the Kakarra Part A claim. Mr Miles’ stated interest in the application area was as the applicant of prospecting licence P27/2469, applied for under the Mining Act 1978 (WA). Mr Miles was joined as a respondent to the proceedings on 29 September 2021 on this basis.

45    It is apparent, however, that Mr Miles has no mining interests in the application area, and currently holds no mining interests in Western Australia. Further, Mr Miles has not filed any material on the present application and, as has been mentioned, he did not appear at the hearing.

46    I accept, as the applicant and the State submit, that as Mr Miles no longer holds an interest that will be affected by a Kakarra Part A determination it is in the interests of justice to remove him as a party to the Kakarra Part A application, also pursuant to ss 84(8) and 84(9)(b) of the Native Title Act.

COSTS

47    Neither the applicant nor the State have sought their costs of the application, and the application itself seeks that there be no order as to costs. Accordingly, there will be no order as to costs.

Associate:

Dated:    27 February 2025

SCHEDULE OF PARTIES