Birrell on behalf of the Koongie-Elvire Native Title Claim Group v State of Western Australia

The main proceeding 4 The native title determination application was originally filed in 1998 and converted to an electronic file bearing the number WAD 45 of 2019 in 2019. It is known as the Koongie-Elvire application. The claim area is in the East Kimberley region, in the vicinity of Halls Creek. 5 Although preservation evidence is about to be heard, in the background the applicant and the State of Western Australia are working towards what is hoped to be a consent determination recognising native title interests in the claim area.

The claimant application description of the native title claim group 6 Ms Lawlor attached to her evidence an extract from the National Native Title Tribunal records which indicates that the claim group is described as follows: Those Aboriginal People who hold in common the body of traditional law and custom governing the area the subject of the claim. Those people are - (a) the biological descendants of the following people: Yirin Paddy, Buyurrngali, Louie Brockman (Nangari), Jack Jelyerri, Bible, Ninjanung, Lineman, Garnngarri, Ngiliga, Ngurrarriya, Ngarntingeni, Pompey Dalbuzi, Poly Gunungal, Ngilngayiyirri (Fred), Luluja (Daylight), Topsy (Nanzili), Marleyambi, Walazi (Whiskey), Geiwaljir (Captain), Jabala, Gimanunja; and (b) Alice Lugaji, Freda Carter, Basil Thomas, and their biological descendants. (emphasis added)

The joinder applicants 7 Delphine Lawlor and Larry Smith are brother and sister. Felicity Smith is their cousin-sister. Ms Lawlor filed evidence in support of the application on behalf of all of the joinder applicants. 8 Ms Lawlor deposes that she is a member of the Koongie-Elvire claim group as a descendent of Bible (also known as Piebald) and as a descendent of Ngurrarriya. Larry Smith is included through the same ancestors. Her cousin-sister Felicity Smith is included as a descendent of Ngurrarriya. Felicity Smith is also a descendent of one of the named applicants. 9 However, despite a number of communications, the joinder applicants have not been able to secure comfort from the applicant's legal representatives as to whether they are considered to be included in the claim group. These communications are summarised below. Their concerns are to be viewed against the backdrop of the pending preservation evidence hearing. 10 Ms Lawlor states that she is aware from communications with the Kimberley Land Council (KLC) staff and her lawyers that Dr Tony Redmond has done native title research relevant to the Koongie-Elvire native title claim. In particular, she is aware that there is a report of a conference of experts in which Dr Redmond participated where they agreed that both Madangal (an ancestor for the joinder applicants) and Bible (an ancestor for her and Larry Smith) had native title rights and interests in the claim area. 11 A copy of the report was attached to Ms Lawlor's affidavit. Although there was some inconsistency in the understanding of the respective legal representatives for the KLC and the applicant as to the area being considered for the purpose of the report, it is not necessary to resolve that question for present purposes. I accept that the report refers to at least part of the claim area. One proposition addressed by the report was whether at the time of effective sovereignty named apical ancestors, under their traditional body of laws and customs, held native title rights and interests in the identified area. Dr Redmond agreed that descendants of Madangal held such rights, while acknowledging that some claimants did not agree. Dr Redmond also agreed that descendants of 'unnamed father of Gimanunja and Piebald/Bible' held such rights, while acknowledging that some claimants disagreed. 12 The joinder applicants are represented by Cross Country Native Title Services. On 17 May 2022 Dante Mavec of that firm wrote on their behalf to Roe Legal, the lawyers for the applicant, seeking confirmation that each of the joinder applicants are accepted by the applicant as members of the Koongie-Elvire claim group and as native title holders within the Koongie-Elvire claim area through their ancestors. 13 On the same day Paul Sheiner from Roe Legal wrote to Mr Mavec stating that the anthropologist Dr Brendan Corrigan had been engaged by Roe Legal to review the Koongie-Elvire claim group description, and said that there would be a meeting on 19 May 2022. A notice of the meeting was in evidence. The notice invited descendants of listed ancestors to attend the meeting. The ancestors Ngurrarriya and Madangal were not included in that list. 14 On 19 May 2022 Delphine attended the meeting advertised. No decision was made to amend the Koongie-Elvire claim or to make a new native title claim. Dr Corrigan attended the meeting. 15 On 17 June 2022 Ms Lawlor wrote to Mr Sheiner seeking a response to the matters raised in Mr Mavec's letter of 17 May 2022. Mr Sheiner responded to the effect that 'at this stage' the claim group description remained unchanged; Dr Corrigan had been engaged to provide a report in relation to whether the existing claim group description needs to be changed; and Ms Lawlor and Mr Mavec would be informed if there were proposed changes to the claim group. 16 On 17 June 2022 the joinder applicants requested access to a further conference of experts report dated 16 February 2022 from the Federal Court file, but it was not provided. 17 During May 2022 to August 2022 the joinder applicants all participated in Dr Corrigan's research. On the basis of information given to her by Mr Mavec, Ms Lawlor understands that Dr Corrigan was due to complete his report in September 2022 and that a claim group meeting was to be held shortly afterwards to discuss his research. However, Mr Mavec was informed that as at September 2022 Dr Corrigan had not completed his research. 18 Ms Lawlor understands from Ms Sophie Kilpatrick, also from Cross Country Native Title Services, that Dr Corrigan is currently completing his report in liaison with Roe Legal. 19 On 2 November 2022 Ms Kilpatrick wrote to Roe Legal asking for an update on Dr Corrigan's report and for a copy of the outlines of evidence filed for the purpose of the preservation evidence hearing. Ms Kilpatrick also sought assurances from Roe Legal that the applicant did not intend to lead evidence from their witnesses to the effect that (relevantly) the joinder applicants do not have native title rights and interests within the claim area. Ms Kilpatrick asked for a response and the materials by 7 November 2022, indicating that if necessary an urgent interlocutory application for joinder would be made. Ms Kilpatrick invited conferral. 20 By email on 7 November 2022 Roe Legal replied, informing Ms Kilpatrick that they have instructions not to provide a copy of Dr Corrigan's report to persons who were not parties as it was in draft form; that the report was prepared for the purpose of conferral with the State; that they would not be in a position to discuss any changes in the claim group description until after such conferral, which was likely to be in 2023; that copies of the outlines of evidence would not be provided; and that the assurances sought as to the leading of evidence would not be provided. 21 The joinder applicants then filed their application.

Principles 22 The proper identification of the native title claim group is of central importance in any determination application: Edward Landers v State of South Australia [2003] FCA 264; (2003) 128 FCR 495 at [35]. 23 The applicant referred to the summary of the principles with respect to joinder given by O'Bryan J in Wilson on behalf of the Wirangu People: [19] In assessing where the interests of justice lie, regard should be had, among other things, to the objects and purposes of the Native Title Act and the overarching purpose of civil practice and procedure expressed in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) which includes the just determination of disputes efficiently, in a timely manner, and at a cost that is proportionate to the importance and complexity of the matters in dispute: Kum Sing at [17]. A relevant consideration to the interests of justice is whether those seeking to be joined have provided a satisfactory explanation for any delay connected with their application and the prejudice that may be caused to existing parties to the proceedings if they are joined as a party: Barunga at [163] and [219] per Gilmour J; Jacob v State of Western Australia [2014] FCA 1106 at [4] and [51] per McKerracher J; Allen on behalf of the Nyamal People #1 v State of Western Australia [2018] FCA 320 at [56] and [75] per Barker J; Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369 at [23]-[27] per Rangiah J; Foster on behalf of the Gunggari People #4 v State of Queensland [2019] FCA 1300 at [9]-[12] per Reeves J. 24 Those principles were also summarised by Griffiths J in Harkin on behalf of the Nanatadjarra People v State of Western Australia [2020] FCA 1015, in which additional matters relevant to the exercise of the discretion were listed 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. 25 In Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599, White J referred to the prospect of the Court's discretion being exercised in favour of joinder in the following terms: [109] A prospective or existing respondent party who can point to a clear and legitimate objective which he or she hopes to achieve by joining or remaining as a party to the proceeding will usually obtain a favourable exercise of the Court's discretion with respect to joinder, unless there is some other factor such as delay weighing against that exercise: Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [37]. 26 Care must be taken, however, in deciding to join persons to an application. As Bromberg J said in Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia [2022] FCA 114: [48] … the Act has established a scheme for the representation of claim group members in a native title determination proceeding. The existence of that scheme is generally inconsistent with the separate participation of a group member as an individual party. As Mansfield J recognised in Starkey at [55], s 251B of the Act requires authorisation in accordance with traditional law and custom or according to a decision-making process agreed to by the claim group. Section 251B does not require unanimity among members of the claim as part of that process. To the contrary it contemplates that in many cases there may be dissent among members of the claim group. Those who disagree will nevertheless be bound by the decision of the claim group as a whole in accordance with the Act. If dissatisfied members of the claim were routinely afforded the elevated status of a respondent to a proceeding in order to agitate interests adverse to the will of the claim group as a whole, including by delaying the proceeding or withholding their consent to a negotiated outcome, it would undermine the representative function of authorisation under the Act: see generally Starkey at [55]-[56]. 27 Ultimately the question I must determine in this case, and in the urgent circumstances of the application, is where the interests of justice lie.

The concerns of the joinder applicants 28 In summary, the above communications reveal the concerns of the joinder applicants. They have seen evidence that supports their claims to be members of the claim group, being the report that includes Dr Redmond's opinion in that regard. However, they have not received information that has been requested from the legal representatives for the applicant. As they are not parties, they have not been able to access certain documents on the Court file. They do not know what is included in the witness outlines that have been exchanged between the parties ahead of the preservation evidence hearing. They do not know what is contained in the report from the conference of experts filed on 16 February 2022, or what changes might be made to the Koongie-Elvire claim group description as a result of Dr Corrigan's report. They are worried that at the preservation evidence hearing, evidence may be given to the effect that their ancestors and families do not belong in the Koongie-Elvire claim and they will not have legal representatives present to test or respond to such evidence.

The position of the State and the KLC 29 Both the State and the KLC consent to the joinder. 30 Counsel for the State noted that the State's main interest in the proceeding is to ensure that any person who has an interest is recognised and part of the determination. 31 Counsel for the KLC made two important points. First, it was emphasised that in this proceeding the case management undertaken by Mortimer J, particularly during March 2021, contemplated that different individuals or families with an interest in the area might have the opportunity to be separately represented and separately advised. So much is apparent from the transcript of the case management hearing on 4 March 2021. Second, the KLC referred to a report that it had provided to the Court as to funding arrangements that it had subsequently facilitated to assist individuals to obtain such separate legal representation if requested. The KLC said it supported the joinder application because it was consistent with the case management approach.

The position of the applicant 32 The applicant opposes the joinder, and refers to the principles discussed in Wilson on behalf of the Wirangu People. It submits that it is premature for there to be any joinder in circumstances where there is currently no proposed amendment to the claim group description and the ancestors Ngurrarriya and Bible or Piebald remain named apical ancestors. The applicant submits that any proposed consent determination and amended claim group description would be presented to the native title claimants at a community authorisation meeting in March 2023 or April 2023 at the earliest, referring to evidence to that effect provided by Ms Kelsi Forrest of Roe Legal by way of affidavit. 33 The applicant further submits that the joinder applicants are represented by the applicant in the usual manner in the proceeding; that the State and the KLC will be present at the preservation evidence hearing as contradictors; and that joining respondents should be a matter of last resort at this point in the proceedings.

Consideration 34 In this case, I consider that joinder is appropriate and in the interests of justice for the following reasons. 35 First, and by way of an overarching observation, I acknowledge the recent comments of Jagot J in Widjabul Wia-bal v Attorney General of New South Wales [2022] FCA 1187, a case where joinder was refused, as to the potentially exhausting and splintering effects of dispossession endured by Aboriginal people, followed by the need to '[prove] who you are': at [72]. Her Honour continued: [72] In a case such as this, where the views on all sides are genuinely held, we should recognise and accept that while the interlocutory application for joinder must be determined in accordance with the interests of justice as they appear in all of the circumstances, we need to tread as lightly as we can and to try to do no more harm. 36 In that case, the joinder application was brought late and threatened to delay a consent determination. That is not this case. In this case, the consent determination negotiations, whilst underway, are some months from any fruition and will not be finalised until after the preservation evidence hearing and the finalisation of the report of Dr Corrigan. 37 Second, I am satisfied that the joinder applicants have an interest within the meaning of s 84(5). They would appear to fall within the claim group description at present, and the opinion of Dr Redmond provides support for that view. However, there are concerns raised by the references to potential changes to the claim group description in the equivocal communications from Roe Legal, and by the curious omission of certain ancestors from the list in the notice of meeting. Those concerns suggest that during the preservation evidence hearing, matters might be raised that might undermine or diminish the position of the joinder applicants. Once the hearing is concluded, the opportunity for the joinder applicants to test any such evidence may well be lost. Although it was suggested by Roe Legal that any prejudice might be managed by limiting the weight the Court might ultimately give such evidence, that is in my view an unsatisfactory approach in circumstances where the joinder respondents have legal representation, and are not seeking to delay the preservation evidence hearing to accommodate their participation. Nor at this stage, and on the information before me, would I defer the hearing in any event. I do not consider the involvement of the joinder applicants is likely to increase the anticipated hearing time to any real extent, and not in a manner that involves prejudice to the parties. 38 Further, Ms Kilpatrick informed the Court that it was her intention if the joinder were ordered to, in accordance with her instructions, first access the Court file, peruse the outlines of witness statements that have been filed and to only participate in the hearing if some potential prejudice were identified. Otherwise, in her words, participation would be 'a waste of resources'. This approach cemented my view that in this case, where there is no suggestion that the joinder applicants are seeking to disrupt or delay the proceeding, and where they have identified a genuine basis for their concerns, they should have the benefit of potential participation. I note in this regard that the joinder applicants in their solicitor's letter of 17 May 2022 identified that 'They would like to cooperate with the Applicant for the claim and do not seek to cause any disharmony'. 39 Third, the joinder is consistent with the case management of this particular determination proceeding, and the intent that individuals have legal representation to pursue their claims as appropriate. I accept the submission of the KLC in this regard. 40 Fourth, the joinder is consistent with the State's position (and the position at law) that any person who has native title interests should be recognised and be part of any determination. The preservation evidence hearing is a step towards facilitating the parties in achieving a consent determination, a process at the heart of the NTA, as reflected in the words of the preamble which include reference to the just and proper ascertainment of native title rights and interests by conciliation. 41 In circumstances where Dr Redmond's opinion is to the effect that the joinder applicants are members of the claim group, their interests should be represented in this process. Whether their interests are aligned with those of the applicant is to some extent unclear in light of the concerns referred to above (at [28]). Nor is it the role of the KLC to pursue the interests of the joinder applicants: the KLC's priority and obligation is to act in accordance with its instructions and in the interests of those people it represents. 42 Fifth, the joinder need not be final. If a change in circumstances intervenes, there is provision in the NTA for respondents to be removed: see the discussion in Hoolihan on behalf of the Gugu Badhun People #3 v State of Queensland [2022] FCA 965. If in due course it becomes apparent that the joinder applicants no longer have any interest that may be affected by the determination then the other parties might seek their removal.

Orders 43 For the above reasons, the joinder applicants should be joined as respondents. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.