Federal Court Rejects Native Title Group's Joinder Application

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[NAME_1] v [NAME_2] [2017] FCA 552 File number: SAD 359 of 2015

Judge: WHITE J

Date of judgment: 22 May 2017

Catchwords: NATIVE TITLE – application to join group as respondent party – whether the group has the requisite interest to be joined – whether the group can be joined without identifying individuals of that group – whether an individual who identifies as a member of that group can be joined.

Legislation: Native Title Act 1993 (Cth) ss 84, 87A(5) Mining Act 1971 (SA) Pt 9B Pastoral Land Management and Conservation Act 1989 (SA) s 47

Cases cited: Butterworth on behalf of the [NAME_3] v State of Queensland [2010] FCA 325 [NAME_4] v [NAME_5] (1997) 78 FCR 1 [NAME_6] v State of Western Australia [2013] FCA 727 [NAME_7]/Yidinji Peoples v Queensland [2004] FCA 1632; (2004) 214 ALR 306 Commonwealth of Australia v Clifton [2007] FCAFC 190 [NAME_8] v [NAME_2] [2015] FCA 1379 [NAME_9] on behalf of the Traditional Owners of [NAME_9] v [NAME_10] Minister for Land and Water Conservation [2003] FCA 541; (2003) 198 ALR 315 Far West [NAME_3] v [NAME_2] (No 5) [2013] FCA 717 Gamogab v Akiba [2007] FCAFC 74; (2007) 159 FCR 578 [NAME_11] v The [NAME_2] [2016] FCA 307 [NAME_12] v [NAME_2] [2014] FCA 534

Date of hearing: 12 May 2017

Registry: South Australia

Division: General Division

National Practice Area: Native Title

Category: Catchwords

Number of paragraphs: 30

Counsel for the Applicant: [redacted]

Solicitor for the Applicant: [redacted]

Counsel for the [NAME_2]: [NAME_15]

Solicitor for the [NAME_2]: Crown Solicitor's Office

Counsel for the remaining Respondents: [redacted]

Counsel for the [NAME_16]: Mr G [NAME_18] with Mr R [NAME_19]

Solicitor for the [NAME_16]: [NAME_20] 359 of 2015

BETWEEN: [NAME_1], [NAME_21], [NAME_22]‑[NAME_23]

([NAME_25]) Applicant

AND: [NAME_2] (and others named in the Schedule) Respondent

IN THE INTERLOCUTORY APPLICATION:

[NAME_16] Applicant

JUDGE: WHITE J DATE OF ORDER: 22 MAY 2017

THE COURT ORDERS THAT:

1. The application filed by the [NAME_16] on 5 April 2017 to be joined as a respondent to the proceedings is dismissed. 2. [NAME_8] be added as a Respondent to the proceedings. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J: 1 This judgment concerns an interlocutory application by the [NAME_16] to be joined as a respondent to the native title [NAME_3] brought on behalf of [NAME_25]. That [NAME_3] was filed on 30 September 2015 and seeks a determination that [NAME_25] have native title rights and interests over an area in the northeast of South Australia (the [NAME_26] [NAME_3]). 2 Section 84(5) of the Native Title Act 1993 (Cth) (the NT Act) permits the Court to 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". 3 The elements to which the Court must have regard on applications under s 84(5) are well established: see [NAME_12] v [NAME_2] [2014] FCA 534 at [12]. An applicant for joinder must establish: (a) that the person has an interest; (b) that the interest may be affected by a determination in the proceedings; and (c) that, in the exercise of its discretion, the Court should join the person as a party. 4 It is convenient to consider first whether these elements are established by the [NAME_16] before considering whether they have the requisite legal personality to be joined as a party.

The interest 5 The interests which may satisfy the first of the elements identified above have been variously described in the authorities. They need not be proprietary, legal or equitable in nature: [NAME_4] v [NAME_5] (1997) 78 FCR 1 at 7-8. The authorities indicate that the interests affected must be greater than those of a member of the general public, genuine, not indirect, remote, lacking substance, capable of clear definition, and of such a character that they may be affected in a demonstrable way by a determination in the proceedings: Byron Environment Centre at 7; [NAME_12] at [13]; Far West [NAME_3] v [NAME_2] (No 5) [2013] FCA 717 at [28]. It has been recognised that traditional [COMPANY_27] rights not necessarily amounting to native title rights and interests may be able to satisfy the requirements of s 84(5): Far West Coast at [32]. See also, Byron Environment Centre at 8, in which Black CJ said that "a person who has a special, well-established non-proprietary connection with land or waters which is of significance to that person" may have the requisite interest. 6 The [NAME_16] pointed to two authorities which it said recognised that a traditional interest (which was less than a native title interest) asserted by an [COMPANY_27] had been recognised as sufficient for joinder. These were [NAME_9] on behalf of the Traditional Owners of [NAME_9] v [NAME_10] Minister for Land and Water Conservation [2003] FCA 541, (2003) 198 ALR 315 and Gamogab v Akiba [2007] FCAFC 74, (2007) 159 FCR 578. It is not clear that [NAME_9] is an authority of this kind, but I accept that [NAME_28] is. 7 In the present case, the [NAME_16] assert that they have traditional rights and interests (including heritage interests) in the [NAME_26] [NAME_3] which are not native title rights and interests, but which nevertheless co-exist with the native title rights and interests claimed by the [NAME_26]. Those rights and interests are said to include: (a) the right to access and move about the area; (b) the right to hunt; (c) the right to gather and use the natural resources of the area such as food, plants and timber; (d) the right to visit, maintain and preserve sites and places of cultural or spiritual significance to the [NAME_16]. 8 The [NAME_16] say that their rights and interests are not just a matter of assertion: they have already been recognised by [NAME_25]. They rely in this respect on the determination of native title which they have obtained on land immediately to the west of, and contiguous with, the [NAME_26] [NAME_3]: [NAME_8] v [NAME_2] [2015] FCA 1379. The land which was the subject of the determination in [NAME_8] is referred to, colloquially, as the [NAME_17] No. 3 area. Part of the [NAME_17] No. 3 area had been the subject of an overlapping [NAME_3] by [NAME_25]. However, [NAME_25] withdrew their [NAME_3] over the overlapping area in accordance with a Memorandum of Understanding which they agreed with the [NAME_16] on 23 April 2015 (the MOU). 9 By cl 19 of the determination in [NAME_8], the Court noted, pursuant to s 87A(5) of the NT Act, that the [NAME_16] and [NAME_25] had entered into the MOU, and that the MOU provided that [NAME_25] held traditional rights and interests in the [NAME_17] No. 3 area which were not native title rights and interests but which co-existed with the [NAME_16]'s native title rights and interests. Clause 19 also recorded that the [NAME_2] and the other respondent parties were not bound by the terms of the MOU. 10 In addition to providing for the recognition by the [NAME_16] of the traditional rights and interests of [NAME_25] in the [NAME_17] No. 3 area, the MOU contained, by a process of cross referencing and incorporation, a statement of reciprocal recognition by [NAME_25] that the [NAME_16] had "traditional rights and interests (including heritage interests)" in the [NAME_26] [NAME_3] which were not native title rights but which nevertheless co-existed with the native title rights and interests they claimed, (cl 2). 11 It is not necessary to recite the full terms of the MOU in these reasons – they are contained in Annexure B to the determination in [NAME_8]. In summary, however, in addition to the recognition of the rights and interests of the [NAME_16], the MOU contained the following: (a) provision for participation by the [NAME_16] in heritage clearance surveys within the [NAME_26] [NAME_3] for the purpose of protecting the traditional cultural interests of the [NAME_16], cll (3) and (4); (b) provision for the [NAME_16] to attend and observe (but not participate in) negotiations for any agreement under Pt 9B of the Mining Act 1971 (SA) and for the [NAME_16] to have the opportunity to make representations which [NAME_25] would be bound to take into account in the course of such negotiations, cl (6); (c) provision for the [NAME_16] to share in the economic, commercial and other benefits which may result from negotiations concerning an agreement under Pt 9B of the Mining Act, cll (7) to (9); (d) a requirement that [NAME_25] not take any action to prevent the [NAME_16] from exercising rights under s 47 of the Pastoral Land Management and Conservation Act 1989 (SA), cl 10; (e) a requirement that [NAME_25] take all practical steps to ensure that the State and other respondent parties agree to a determination by this Court in favour of [NAME_25] in relation to the [NAME_26] [NAME_3] which includes an ancillary order referring to the terms of the MOU, and attaching a copy of the MOU as a schedule, cl (11). 12 In these circumstances, the [NAME_16] contend that the MOU contains an express recognition by [NAME_25] that they have an interest of the requisite kind for the purposes of s 84(5) of the NT Act and that the first of the s 84(5) elements is established. [NAME_25] nor the State, who were the only parties to appear before the Court on the joinder hearing, made any submission to the contrary. 13 I accept that the [NAME_16] do have a requisite interest. Given that it was not a matter in dispute, it is not necessary in these reasons to identify all the matters giving rise to that interest, but they include the interest of the [NAME_16] in assisting [NAME_25] to obtain a determination of native title in terms in which their non-native title rights and interests are recognised; their interest in having the Court make an order under s 87A(5) of the NT Act concerning the MOU; and their more general interest in account being taken of their non-native title rights and interests in any determination made on [NAME_25]'s application.

The affectation of the interest of the [NAME_16] 14 Despite their acceptance that the [NAME_16] have an interest of the requisite kind, [NAME_25] contended that the evidence did not indicate that the interests claimed by the [NAME_16] would be affected in the relevant sense by the determination of native title, and that it was not in the interests of justice for the [NAME_16] to be joined as a respondent. More particularly, counsel for [NAME_25] submitted that the interests of the [NAME_16] were not affected in the requisite sense because they ([NAME_25]) had to date complied with the terms of the MOU and there was no suggestion that they would not continue to do so in the future. 15 Earlier in these reasons I recorded some of the interests claimed by the [NAME_16] in the [NAME_26] [NAME_3]. [NAME_25] are claiming native title rights and interests which may affect the exercise by the [NAME_16] of the interests claimed by them. These include the right to access and move about the [NAME_3] area, the right to regulate access to and use of the [NAME_3] area by other [COMPANY_27] people in accordance with traditional laws and customs, the right to hunt on the [NAME_3] area, and the right to speak about the [NAME_3] area among other [COMPANY_27] people who seek access to, or use of, the lands and waters in accordance with traditional laws and customs (Sch E). 16 In my opinion, the question of whether these interests of the [NAME_16] may be affected is not to be determined by an evaluation of the prospect, or lack of prospect, of [NAME_25] complying with the terms of the MOU. Two considerations at least indicate that that must be so. First, it is possible that, even though [NAME_25] may comply fully with the MOU, a determination may be made on the [NAME_26] application which would not take account of the traditional rights claimed by the [NAME_16]. Secondly, the MOU does not bind the State or the other respondent parties. That being so, the [NAME_16] have an interest in the MOU being recognised and being made part of a separate order on the [NAME_26] [NAME_3] pursuant to s 87A(5) of the NT Act. 17 These matters are sufficient to indicate that the second element under s 84(5) is made out.

The interests of justice 18 A number of matters bear upon the exercise of discretion involved. These include the evident statutory intention that all parties whose interests may be affected will be before the Court at the one time, whether the interests of the applicant for joinder can be adequately represented by an existing party, the effect of the joinder on the efficient case management of the underlying application, and any prejudice or detriment which the joinder may cause. 19 [NAME_25] submitted that it was not necessary for the [NAME_17] to be joined given that they had, by the MOU, accepted the responsibility of protecting the interests of the [NAME_17] and there was no reason to suppose that they would not honour that commitment. They likened this situation to the circumstances considered by Logan J in Butterworth on behalf of the [NAME_3] v State of Queensland [2010] FCA 325 and by Kiefel J in [NAME_7]/Yidinji Peoples v Queensland [2004] FCA 1632; (2004) 214 ALR 306. In particular, the [NAME_26] emphasised the statement of Kiefel J at [12] that, on an application for joinder, the Court should be satisfied that, without joinder, there would be a real difficulty in the interests of the applicant for joinder being recognised. 20 Butterworth was concerned with the dis-joinder from a native title proceeding of a respondent who was a member of the native title group. [NAME_7] concerned a [NAME_3] for joinder by dissident members of a [NAME_3] group. Circumstances of these kinds involve their own distinct considerations, as persons in these categories may have no entitlement to be joined at all: see [NAME_11] v The [NAME_2] [2016] FCA 307 at [13]-[20]. In particular, the interest of a dissident member usually corresponds with that of the claimants, even if there is disagreement about the way in which the [NAME_3] should be managed or progressed. In contrast to that situation, in the present case, the [NAME_16] and [NAME_25] have claims which will correspond in some respects but which may conflict in other respects. This counts against a conclusion that the interests of the [NAME_16] will be adequately represented by [NAME_25]. 21 Next, [NAME_25] submitted that the joinder of the [NAME_16] would undermine their "authority as the protector of native title in the [NAME_3] area" and would cast doubt on the efficiency of the MOU. These submissions were not elaborated and did not rise above the level of assertion. They overlook that the [NAME_16] do not make a [NAME_3] of native title over the [NAME_26] [NAME_3], and could not, as a respondent, do so: Commonwealth of Australia v Clifton [2007] FCAFC 190 at [57]-[58]. [ADDRESS] should be concerned that the joinder of the [NAME_17] will not affect adversely the efficient prosecution of the [NAME_3] of [NAME_25]. However, there is no present indication that there will be such an effect. If that expectation is not realised, there is the scope for a subsequent order of dis-joinder under s 84(8) of the NT Act. 23 In my opinion, the interests of justice favour the grant of the application for joinder.

The identity of the party to be joined 24 The interlocutory application seeking the joinder identified the "[NAME_16]" as the party to be joined. This was inappropriate. The "[NAME_16]" is not a legal entity and does not have legal personality. It is, as counsel for the [NAME_16] acknowledged, the name of a collective of people. Subject to some qualifications which are not presently material, it is only persons or entities with legal personality who can become parties to proceedings in this Court. 25 Counsel for the [NAME_16] resisted that conclusion. He contended that the [NAME_16], like other [COMPANY_27] groups and societies, are commonly recognised in native title litigation and pointed to some instances in which the "[NAME_16]" have been named as respondents in other native title claims. In answer to questions by the Court as to how any order made against the [NAME_16] would be able to be enforced given that the [NAME_16] do not have legal personality, counsel answered variously, suggesting, first, that an order could be enforced against the [COMPANY_29]) RNTBC (ATLA) which is the prescribed body corporate for, amongst other things, the [NAME_17] No. 3 area; secondly, that the [NAME_16] could call a meeting to address compliance with the Court's order; and, thirdly, that an approach could be made to the firm of solicitors presently acting for the [NAME_16]. 26 These submissions illustrate the inappropriateness of the "[NAME_16]" being joined as a respondent. An order could not be enforced against ATLA as it is not a party to the proceedings (and could not be a party – see [NAME_6] v State of Western Australia [2013] FCA 727; [NAME_12] at [14]). Counsel's alternative suggestions amounted to a tacit acknowledgement that any order of the Court against the [NAME_16] would be incapable of direct enforcement. 27 It is the case that there are instances of [COMPANY_27] groups having been named as a respondent in native title proceedings, but it seems that that has occurred without their lack of legal personality being noted. Counsel acknowledged that, subject to one qualification, he could not point to any authority in which the Court had ruled in favour of an [COMPANY_27] being named as a party to native title proceedings using the collective name of the persons comprising the group. The qualification is the statement of Mansfield J in [NAME_12] at [14]: [NAME_4] and unincorporated entities may have interests that permit their joinder to an application, entities put forward as representing members with relevant interests do not, by that reason alone, have interests of the sort contemplated by s 84(5) as expounded in Byron at 9-10 (Black CJ) and 43 (Merkel J). (Emphasis added) 28 I do not regard this passage as providing support for the position claimed by the [NAME_16]. In the first place, it seems that the focus of Mansfield J's statement was directed to a different matter, namely, that entities representing members with relevant interests do not, by that reason alone, themselves have interests of the requisite kind. It does not seem that Mansfield J was making an observation about the nature of the entity which may [NAME_3] such an interest. That is to say, Mansfield J was distinguishing between the interests of the entity itself, on the one hand, and the interests of the members represented by the entity, on the other. Secondly, and in any event, it is not apparent that the "[NAME_16]" is an unincorporated association in the sense that that expression is ordinarily understood. 29 For these reasons, joinder of the "[NAME_16]" as a respondent to the proceedings would be inappropriate. Ultimately, counsel applied to amend the interlocutory application so as to apply, in the alternative, for [NAME_8] to be joined as a respondent party. As neither [NAME_25] nor the State opposed that amendment, it was allowed. The parties before the Court agreed that Ms [NAME_8] is an [NAME_17] person. I am satisfied for the reasons given above, that she is one of the [NAME_16] whose interests may be affected by the [NAME_26] application and, accordingly, that it is appropriate to accede to her application that she be joined as a respondent party. 30 The order of the Court is that the application of the [NAME_16] to be joined as a respondent to the [NAME_26] application is refused but that [NAME_8] be joined as a respondent. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

Associate: Dated: 22 May 2017

SCHEDULE OF PARTIES SAD 359 of 2015 Respondents Respondent: [redacted] Respondent: [redacted] Respondent: [redacted] Respondent: [redacted] Respondent: [redacted] Respondent: [redacted] Respondent: [redacted] Respondent: [redacted]