Federal Court of Australia

Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part B) v State of Western Australia (No 4) [2026] FCA 863

ORDERS

THE COURT ORDERS THAT:

1.    The prospective respondent’s interlocutory application taken to be filed in this proceeding pursuant to the orders made on 27 March 2026 is dismissed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This proceeding is a native title determination application under s 61 of the Native Title Act 1993 (Cth), known as the Nangaanya-ku application. These reasons determine an interlocutory application by Ms Desarae Bennell to be joined as a respondent to the proceeding. Ms Bennell’s application for joinder is brought under s 84(5) of the Native Title Act.

2    Essentially, Ms Bennell claims to hold native title rights and interests in relation to country that is covered by the Nangaanya-ku application, but which is yet to be the subject of a determination. She says that she is therefore a person whose interests may be affected by a determination in the proceeding, which is one criterion that must be satisfied under s 84(5) before the Court’s discretion to join a person is enlivened. The other criterion is that it is in the interests of justice to join the person as a party. Ms Bennell submits that her claimed interest in relation to the relevant area means that this criterion is satisfied too.

3    Ms Bennell does not have legal representation and there is some ambiguity, or possibly self-contradiction, in the materials she has filed to support her interlocutory application. For the following reasons, on the most likely construction of Ms Bennell’s claim, she is not a person whose interests may be affected by the proposed determination, and it is not in the interests of justice for her to be joined. Even if those criteria were satisfied, the concerns I hold about joining Ms Bennell are such that I would not exercise the discretion to join her.

4    If I am wrong about the nature of Ms Bennell’s claim, it remains the case that it would not be in the interests of justice to join her as a respondent, and I would not exercise the discretion in her favour anyway. The interlocutory application will be dismissed.

5    For completeness, I note that Ms Bennell’s submissions also refer to the application for joinder as having been brought under s 84(5A) of the Native Title Act. Section 84(5A) concerns joinder of a person whose interests may be affected by a determination in the proceeding ‘merely because the person has a public right of access over, or use of, any of the area covered by the application’. But Ms Bennell has not asserted any public right that might qualify her for joinder under s 84(5A), and I will give that provision no further consideration.

Procedural history

6    The procedural history of the matter and related proceedings is set out in Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part B) v State of Western Australia [2022] FCA 1356 (Nangaanya-ku Part B (No 1)) at [32]-[49] and in Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part B) v State of Western Australia (No 3) [2026] FCA 367 (Nangaanya-ku Part B (No 3)) at [97]. I will not repeat that history here, but it is worth noting the following points.

7    In November 2021, Griffiths J made a consent determination in the proceeding that native title exists in relation to most of the land the subject of the Nangaanya-ku application, which was designated Part A: Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part A) v State of Western Australia [2021] FCA 1489 (Nangaanya-ku Part A).

8    The land not included in the Part A determination, designated Part B, was excised because of questions regarding the validity of a certain mining lease, and the application of s 47B of the Native Title Act to the areas covered by that mining lease and another different mining lease. As has been recorded in previous interlocutory decisions, in making the Part A determination, the Court accepted that the Nangaanya-ku claim group holds native title rights and interests over Part B as well: Nangaanya-ku Part A at [25] and [26]-[34].

9    The Court has since determined that the mining lease that was under question is not invalid to the extent that it affects native title: Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part B) v State of Western Australia (No 2) [2024] FCA 729. Evidence has been taken in relation to the remaining issues, concerning the applicability of s 47B, and written and oral closing submissions are programmed for later this year.

The present interlocutory application

10    On 15 April 2025, Ms Bennell originally filed her application to be joined as a respondent in proceeding WAD 46 of 2025 (Yilkari Mungar Proceeding). On 27 March 2026, I dismissed that proceeding as an abuse of process and vexatious, but by the agreement of all concerned Ms Bennell’s interlocutory application for joinder was to be determined at a later time. Orders were made that the interlocutory application and supporting affidavit were taken to have been filed in the present proceeding: see Nangaanya-ku Part B (No 3) at [101] and [106].

11    As originally filed, the interlocutory application sought orders reopening the Part A determination, and dismissing it as an abuse of process and as failing to comply with s 61 of the Native Title Act. The dismissal of the Part B claim was sought for the same reasons. However, in her submissions in support of the application as now constituted in this proceeding, Ms Bennell says that she does not press for those orders. I have considered her interlocutory application on that basis. It seems that now Ms Bennell only seeks orders permitting her to be heard in relation to the unresolved issues that remain in the Part B claim. Her understanding of what those issues are seems to differ, however, from the understanding of the presently active parties in the proceeding. This will be addressed shortly.

12    As mentioned, ambiguity, or possibly self-contradiction, affects Ms Bennell’s present interlocutory application. It is necessary to examine the application and supporting materials further at this point, so as to ascertain the nature of the interests Ms Bennell says may be affected by the proposed determination over Part B.

13    The bulk of the evidence on which Ms Bennell relies is found in an affidavit she affirmed on 8 May 2026. She also relies on the affidavit she filed with the original application in the Yilkari Mungar Proceeding affirmed on 15 April 2025, but that mostly contains genealogical and procedural histories, the relevance of which is unclear, and seems to have been designed to support her now discarded attempt to reopen the Part A determination.

14    In her 8 May 2026 affidavit, Ms Bennell says she is a direct descendant of Minina, a Pindiini/Wongai man from whom her asserted connection to country is derived. She says that her knowledge of country, kinship and cultural responsibility is derived from Pindiini/Wongai laws and customs, as taught to her by her elders and through her family line. Ms Bennell also says she is recognised within her family as having responsibility to speak to matters concerning descent and connection to country under those laws and customs.

15    Ms Bennell does not explain in the body of the 8 May 2026 affidavit the relationship that Pindiini/Wongai laws and customs have to the laws and customs found in Nangaanya-ku Part A to give the Nangaanya-ku claim group members their connection to the entire application area. But the affidavit does say:

16.    I rely on my descent and cultural position to assert an interest in this proceeding.

17.     That interest arises because determinations concerning descent attribution, apical ancestry, and claim group composition may affect whether my family line is recognised within the Nangaanya-ku Part B claim group.

16    References to descent attribution, apical ancestry and claim group composition appear several times in the body of the affidavit. At paragraph 19, purporting to describe the present status of the proceeding, Ms Bennell says:

Issues before the Court include:

(a)     claim group composition; and

(b)     descent attribution under traditional law and custom, including apical ancestry.

17    As the Nangaanya-ku applicant points out, those issues are not before the Court. They have been conclusively determined by the Part A determination which, as has been said, also determines them in relation to Part B. As described above, the only issue that remains is the more narrow and specific one of whether s 47B of the Native Title Act applies in respect of areas covered by certain mining leases. Section 47B concerns when extinguishment of native title will be taken not to have occurred, and is likely to turn on specific evidence about the extent to which members of the Nangaanya-ku claim group occupied certain areas at the time the proceeding was commenced.

18    In her 8 May 2026 affidavit, Ms Bennell goes on to say (at para 20):

I understand that determinations in this proceeding may affect whether persons asserting descent-based connection, including my family line, are included in or excluded from the claim group.

19    Again, with respect, that is not correct. In truth, the description of the native title holders in the Nangaanya-ku application, which is reflected in the Part A determination, is broad. Subject to the question of prior extinguishment, paragraph 1 of Schedule A to the Nangaanya-ku determination application provides that the persons who will be recognised as holding native title rights and interests in relation to Part B will be those:

who hold native title rights and interests … according to their traditional laws and customs through one or more of:

(a)     their own birth on the application area;

(b)     the birth of an ancestor on the application area;

(c)     having religious, sacred or ritual authority for the application area; and/or

(d)     long traditional association with the application area through occupation, custodianship or use by one’s self and/or relevant kin.

20    Paragraph 2 of Schedule A provides that, at the date of the application, those persons include but are not limited to the descendants of a list of named ancestors. While Minina is not on that list, it does not purport to be exhaustive. In the Part A determination, the list includes additional named ancestors to the original application. As noted in Nangaanya-ku Part B (No 1) at [47], paragraph 1 does not require a person to identify as a member of any particular named group in order to be among the native title holders under the determination application.

21    At paragraph 32 of her 8 May 2026 affidavit, Ms Bennell says that her descent line is connected to areas within Part B. However, any recognition of that asserted connection is not necessarily inconsistent with the existing terms of the Nangaanya-ku determination application.

22    The affidavit also purports to identify an issue about whether adoptive descent can qualify a person for inclusion in the claim group; Ms Bennell says that certain genealogical material relied upon in the proceeding is not consistent with her family’s oral history and descent knowledge. But there is no issue currently in the proceeding about that. If attribution by adoption does become an issue, that is likely to occur if particular individuals make claim to be among the native title holders for the determination and if those claims are disputed. That is likely to occur when the time comes for the prescribed body corporate (PBC) for the determination to identify who are the native title holders on whose behalf it holds native title. This proceeding is not a suitable vehicle to decide any such disputes, if they arise.

23    Near the end of her 8 May 2026 affidavit, Ms Bennell says under the heading ‘Relevance to joinder’:

39.     My interest arises from my asserted descent from Minina in circumstances where determinations concerning descent attribution, apical ancestry, and claim group composition may affect whether my family line is recognised within the claim group.

40.     Those determinations will affect whether my asserted descent line is recognised for the purposes of participation in this proceeding and any consequential steps arising from it.

41.     My ability to participate in this proceeding may be affected by findings on those issues, which are central to the matters in dispute before the Court.

24    On the basis of the body of the affidavit, then, it would appear that Ms Bennell wishes to claim native title rights and interests through the Nangaanya-ku claim – as she says at paragraph 17 of her affidavit, ‘within the Nangaanya-ku Part B claim group’ – so that the issues she wishes to raise concern the composition of that claim group.

25    Those concerns – claim group composition, apical ancestry and descent attribution – are also identified repeatedly in Ms Bennell’s written submissions in support of her interlocutory application. Those submissions say (para 11) that she ‘does not seek to establish native title rights or interests and does not seek any determination of native title’. See also paragraph 30, which says that Ms Bennell ‘does not invite the Court to resolve competing genealogical accounts’.

26    Ms Bennell’s written submissions repeat the incorrect assertion that issues concerning claim group composition, descent attribution and the identification of apical ancestors are live issues in this proceeding. They also say (para 20) that Ms Bennell’s interlocutory application ‘does not seek to re-litigate or revive the dismissed Yilkari Mungar proceeding’, in which native title rights and interests were claimed pursuant to an allegedly distinct body of laws and customs. Thus (para 22, see also at para 30): ‘The proposed respondent does not seek determination of substantive native title rights, but only procedural participation in respect of issues that may affect her interests.’ At paragraph 32, the submissions go on to say:

Joinder is therefore sought to ensure that evidence relevant to descent attribution and claim group composition is capable of being properly adduced and tested in the ordinary course of the proceeding, consistent with procedural fairness requirements in native title proceedings.

27    I take all this to mean that Ms Bennell now asserts no native title rights or interests pursuant to a body of laws and customs distinct from the Western Desert system that forms the basis of the Part A determination and the Part B claim.

28    Annexed to the 8 May 2026 affidavit are previous affidavits of Ms Bennell and others dating from 2025. Those affidavits appear to have been prepared to support the Yilkari Mungar claim that was summarily dismissed in Nangaanya-ku Part B (No 3). Except for an affidavit of Ms Bennell’s affirmed on 30 April 2025 (which annexed two further affidavits from other people), those affidavits were not filed in the Yilkari Mungar Proceeding, and have not been filed in this proceeding other than as annexures to the 8 May 2026 affidavit.

29    Some of those affidavits contain evidence that Minina or his son, Oongar, while members of a Pindiini/Wongai society, observed and maintained Western Desert kinship and ceremonial practices. This tends to confirm that any claim to native title rights and interests is made within the Western Desert system that forms the basis of the Part A determination and Part B claim.

30    Ms Bennell’s 8 May 2026 affidavit and written submissions do hint at a broader claim, however. At paragraph 11 of the affidavit, Ms Bennell says that she is ‘a member of the Pindiini/Wongai People and belong to the Baadu clan within that society.’ At paragraph 15 and paragraph 42 she refers to ‘Pindiini/Wongai law and custom’. The submissions similarly say that the ‘present proceeding concerns a native title determination application over an area of land and waters that overlaps with areas to which the proposed respondent asserts descent-based connection under traditional law and custom’: at para 15. And at paragraph 27 they say that Ms Bennell ‘asserts distinct and independent rights and interests arising from separate descent lines.’

31    Ms Bennell’s affidavit affirmed on 30 April 2025 (annexed to her 8 May 2026 affidavit) also makes broader claims about native title rights and interests distinct from those recognised in Nangaanya-ku Part A. For example, that affidavit contains assertions that there is a distinct Pindiini/Wongai system of traditional laws and customs under which the Yilkari Mungar People claim exclusive native title rights and interests to land and waters within the Nangaanya-ku application area.

32    Despite these contrary indications, in my view, on a proper understanding of Ms Bennell’s interlocutory application and the materials filed in support of it as a whole, Ms Bennell is now not claiming native title rights and interests in relation to Part B (or Part A) pursuant to an allegedly distinct system of laws and customs. She expressly eschews seeking ‘any determination of native title’ and expresses a wish for recognition ‘within the Nangaanya-ku Part B claim group’. The issues she wishes to raise concern how her entitlement to native title rights and interests pursuant to the proposed Nangaanya-ku Part B determination will be established by way of descent from Minina and Oongar. None of that is displaced by the broader claims that appear ambiguously at isolated points in her submissions and the body of the 8 May 2026 affidavit, or less ambiguously in older materials apparently prepared for a different purpose, which have been annexed to that affidavit for reasons that are unclear.

33    But in case I am wrong about that, I will also consider the joinder application on the contrary assumption that Ms Bennell does still assert native title rights and interests pursuant to a body of laws and customs distinct from those that are the basis of the Nangaanya-ku application.

34    In any event, the Nangaanya-ku applicant and the first respondent, the State of Western Australia, oppose the application for joinder. Neither have filed responsive evidence. The Nangaanya-ku applicant filed written submissions in opposition to those filed by Ms Bennell, and the State agrees with and adopts the Nangaanya-ku applicant’s submissions. With the consent of the parties, Ms Bennell’s application has been determined on the papers.

Principles

35    In Forrest on behalf of the Nangaanya-ku Native Title Claim Group v State of Western Australia [2021] FCA 467 Griffiths J set out the principles governing joinder applications of this kind as follows:

[47]    Section 84(5) of the NT Act provides as follows:

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.

[48]    Rule 34.105(1) and (2) of the Federal Court Rules 2011 (Cth) provide:

34.105 Joinder of parties to main application after relevant period

(1)    If a person wants to be a party to a main application and the relevant period (within the meaning of rule 34.104) has ended, the person must apply by filing an interlocutory application, in accordance with Form 105.

(2)    The application must be accompanied by an affidavit stating:

(a)    how the person’s interests may be affected by a determination in the proceeding; and

(b)    why it is in the interests of justice for the Court to grant the application.

[49]    It is common ground that the following three elements must be addressed under s 84(5):

(a)    whether the person seeking to be joined has an interest;

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

(c)    whether it is in the interests of justice to join the person as a party, which involves a discretion, which must be exercised judicially.

[50]    Some of the relevant legal principles were recently summarised in [Harkin on behalf of the Nanatadjarra People v State of Western Australia [2020] FCA 1015 (Harkin (No 1)] at [10]:

(a)    There must be at least a prima facie interest on the part of a joinder applicant which warrants a favourable exercise of the discretion under s 84(5).

(b)    The notion of ‘interests’ for the purposes of s 84(5) is a broad concept, not confined to the statutory understanding of the term ‘interest’ in s 253 of the NT Act. The interests need not be proprietary, legal or equitable in nature; they must arise above an interest that an ordinary member of the public might hold; they must be genuine; they must reflect an effect upon the joinder applicant’s interests beyond a mere emotional, conscientious or intellectual interest and they must not lack substance.

(c)    When viewed in its statutory context, the expression prima facie is taken to mean ‘at first sight without further investigation’.

(d)    The interest relied upon by a person seeking to be joined as a respondent must be capable of clear definition, be genuine and affected in a ‘demonstrable way’. An interest in a much wider area than the area of the relevant claim may be insufficient to establish a relevant interest in the claim area itself.

(e)    A person claiming to hold native title rights and interest over an area of land and waters affected by a native title determination application would ordinarily have sufficient an interest to justify being joined as a respondent under s 84(5) of the NT Act.

(f)    Significantly, in determining whether or not to grant an application for joinder, the Court does not embark on resolving contested questions of fact or seek to determine where the merits lie. Instead, the question is whether having regard to the assertions of fact contained in the application for joinder, the Court can be satisfied that the applicant’s interests may be affected in a demonstrable way by a determination of native title. In other words, there must be a factual foundation which demonstrates that a relevant interest is affected.

(g)    The discretion under s 84(5) is broad and the question whether it should be exercised in favour of a person seeking joinder depends upon the circumstances of each case, including the history of the matter.

(h)    The discretion to join a party must properly be exercised on a case-by-case basis. Having regard to the terms of s 251B of the NT Act, generally speaking the Court will rarely permit joinder of dissentient members of a native title claim group or permit joinder where, following relevant procedures, the claim group has determined that there is not a sufficient basis for including the joinder applicant in the claim group. Merely because a joinder applicant asserts that he or she has been recognised as a member of a People is a different thing from being a member of the native title claim group, the composition of which must be persons who, according to their traditional laws and customs, hold the communal group rights and interests comprises in a claim.

(i)    The following particular factors are relevant to the exercise of the Court's discretion under s 84(5):

(i)    it must be recognised that proceedings under s 61 of the NT Act for a determination of native title are proceeding in rem and bind non-parties. It is fundamental that an order which directly affects a third person’s rights or liabilities should not be made unless the person is joined as a party;

(ii)    consideration of the rights and interests of the party joined would lead to a more accurate definition of the native title rights and interests claims, including by limiting the scope of the rights and interests of an applicant;

(iii)    the party joined would also be able to protect the native title rights and interests they claim to hold from erosion, dilution or discount by the Court’s determination of a s 61 application;

(iv)    whether the interest asserted can be protected by some other mechanism, such as where the interests could be protected by some other adequate instrument;

(v)    where the applicant for a determination would be prejudiced if the party applicant is joined; and

(vi)    the history of the proceedings, including whether there has been unexplained delay by the party seeking to be joined and whether there are well-advanced Court programming orders which would need to be amended to accommodate the proposed joined party, including whether such joinder would jeopardise an imminent trial.

36    Griffiths J went on to say (at [52]) that this summary is not exhaustive and that it reflected the particular circumstances of Harkin (No 1). Nonetheless I consider that it is useful here, particularly given the closeness of those circumstances to the current proceeding, and I respectfully adopt his Honour’s summary of the principles as given above.

Consideration

37    I will consider Ms Bennell’s joinder application under headings that reflect the structure and requirements of s 84(5) of the Native Title Act: whether Ms Bennell has established that she has interests that may be affected by the proposed Part B determination; whether it is in the interests of justice to join her as a respondent; and whether any discretion to join her should be exercised.

Person whose interests may be affected by the proposed Part B determination

38    The Nangaanya-ku applicant accepts that Ms Bennell’s claim to hold native title in relation to Part B is capable of constituting a prima facie ‘interest’ for the purposes of s 84(5) of the Native Title Act. But it submits that if any of the descendants of Minina hold native title rights and interests under the Western Desert system of traditional laws and customs, those rights and interests will be capable of recognition pursuant to the terms of the Part A determination and proposed Part B determination, as described above at [19]-[20].

39    I accept that submission. The description in paragraph 2 of Schedule A to the Nangaanya-ku application of the apical ancestors whose descendants will hold native title rights and interests is inclusive, not exhaustive. The broader description of the native title holders in paragraph 1 is capable of encompassing persons whose ancestors are not listed in paragraph 2.

40    Ms Bennell has not explained how her interests may be affected by a determination of native title in these terms. On the principles summarised above, a broad expression of interest in the subject matter of a determination is not enough; to satisfy the first criterion in s 84(5) the proposed respondent’s interests must be affected in a demonstrable way.

41    In that context, Ms Bennell has not demonstrated how, if her claims are sound, she will not succeed in establishing that she is one of the persons who hold native title rights under the Part B determination that is sought. She has not established that the issues she seems to wish to agitate, about claim group composition, apical ancestry and descent attribution, are suitable for resolution in this proceeding. As I have already said, it appears to me that they are, rather, issues that may arise at the time when it is necessary to determine membership of the group of native title holders for whom the relevant PBC holds native title rights and interests.

42    I am therefore not persuaded that those matters qualify Ms Bennell as a person whose interests may be affected by the proposed determination in respect of Part B.

43    If my understanding of Ms Bennell’s position is incorrect, and she does now wish to establish distinct native title rights and interests, then I accept that this first requirement in s 84(5) would be satisfied, as the proposed Part B determination would be inconsistent with that kind of claim.

Interests of justice

44    For the following reasons, I am not satisfied that it is in the interests of justice to join Ms Bennell as a respondent to the proceeding.

45    As has been said, Ms Bennell’s assertion that claim group composition, descent attribution and the identification of apical ancestors are ‘live issues in the proceeding’ is incorrect. On the assumption that Ms Bennell wishes to agitate a claim to native title rights and interests within the framework of the existing Nangaanya-ku determination, permitting her to do so in this proceeding would involve adding new issues, causing further delay to the resolution of the claim, which has already been bedevilled by numerous procedural issues and purported competing claims. It would not be in the interests of justice to do that.

46    Also, the ambiguities and inconsistencies in Ms Bennell’s position that have been canvassed above will, in themselves, risk prejudicing a fair and efficient trial of the issues that remain. That, too, would be against the interests of justice.

47    Further, as was explained in the previous section of these reasons, it is not necessary to join Ms Bennell to this proceeding in order for her to vindicate the interests she now seems to claim. To the extent that she asserts that Minina or some other ancestor should be recognised in the Part A determination or Part B claim, that is a dispute about the composition of the claim group.

48    The Nangaanya-ku applicant submits, and I accept, that a dispute about whether Minina’s descendants hold native title rights and interests in the Part B claim under Western Desert traditional law and custom is properly characterised as an intramural one. The Court has expressed a preference for disputes as to the composition of a claim group, as distinct from the appropriate membership criteria, to be dealt with post-determination and intramurally, reflecting a policy preference inferred from the Native Title Act: see e.g., Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia [2022] FCA 114 at [49]-[58] and the cases discussed there. To adapt Bromberg J’s observations in that case at [66]-[73], if the descendants of Minina are encompassed by the terms of the Nangaanya-ku application and are later improperly denied membership of the PBC, they are not without a remedy. The existence of other avenues to pursue Ms Bennell’s interests is another reason why it would not be in the interests of justice to join her as a respondent.

49    That Ms Bennell’s joinder is not in the interests of justice would be even clearer if, contrary to my principal findings, she wishes to claim native title pursuant to laws and customs distinct from those of the Western Desert. To join her as a respondent and permit her to ventilate such claims in relation to Part B would be inconsistent with the Part A determination and the conclusions reached in Nangaanya-ku Part A. Subject to questions of prior extinguishment, the Court has accepted that the Nangaanya-ku claim group hold native title rights and interests in respect of the entire claim area, through Western Desert traditional laws and customs. For reasons canvassed most recently in Nangaanya-ku Part B (No 3) at [40]-[58], it would be an abuse of process to permit those matters to be advanced at this late stage in the proceeding.

50    As the Nangaanya-ku applicant submits, that conclusion is not affected by the provision in the 8 May 2026 affidavit (including its annexures) of some additional details about persons said to be descendants of Minina and about Pindiini/Wongai law and custom. The fundamental inconsistency with the Part A determination, and the lateness in this proceeding of any attempt to agitate these matters, would remain. It would therefore not be in the interests of justice to allow them to be agitated now.

Discretion

51    I am not satisfied that Ms Bennell’s application satisfies either of the preconditions in s 84(5) of the Native Title Act, so the discretion to join her as a respondent does not arise. But if it does somehow arise, for the same reasons that I do not consider it in the interests of justice to join her as a respondent, I would not exercise the discretion in favour of joinder.

Conclusion

52    For those reasons, Ms Bennell’s application for joinder as a respondent to the proceeding will be dismissed.

53    Having regard to s 85A(1) of the Native Title Act, and in the absence of any indication by the Nangaanya-ku applicant that it seeks costs, there will be no order on that subject.

Associate:

Dated:    6 July 2026

SCHEDULE OF PARTIES