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[2002] FCA 1209
procedural. The Court ordered that (1) New South Wales Native Title Services Limited be joined as a party pursuant to s 84(5) of the Native Title Act, (2) the New South Wales Aboriginal Land Council be given...
Emmett J ordered that New South Wales Native Title Services Limited be joined as the registered native title representative body in two native title proceedings and that the New South Wales Aboriginal Land Council be allowed to withdraw. The Court acknowledged some statutory ambiguity about joinder but concluded it had power to join the new body, following recent authorities. An objector complained about inadequate consultation and equitable funding; the Court noted such complaints require evidence and can be the subject of a later application for removal. The Court directed a mediation progress report and listed the matter for directions.
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1,627 words · generated 20/08/2026
This judgment records interlocutory reasons and orders made by Emmett J on 13 September 2002 in two related Federal Court native title proceedings, NG6046/1998 (the Walbunja claim) and NG6080/1998 (the Djiringanj claim). The practical dispute was procedural: the New South Wales Aboriginal Land Council (NSW ALC), which had formerly been the registered native title representative body, sought leave to withdraw as a party, and New South Wales Native Title Services Limited (NSW NTS), the body enabled to perform representative functions under the Native Title Act, sought to be joined as a party. One individual, Mr Broomhead, opposed the joinder, alleging inadequate consultation and inequitable use of available funds by NSW NTS.
1 cited instrument linked from this judgment.
Emmett J considered whether the Court had power to join a new representative body given the structure of the Native Title Act and recent authority. The Court observed some statutory ambiguity but concluded it had the power and, in the exercise of its discretion, ordered NSW NTS be joined and NSW ALC be allowed to withdraw. The Court also directed procedural management steps: the National Native Title Tribunal was to report on mediation progress by 31 January 2003 and the matter was listed for directions on 7 February 2003 (see Reasons [1]–[9]; Orders).
The reasoning rests on three connected strands.
Statutory context and parliamentary intent. Emmett J noted it is "tolerably clear" Parliament intended that a registered native title body would be a party to proceedings. He relied on ss 84(3)(a)(i) and 66(3)(a)(ii) of the Native Title Act which provide that a registered native title body is deemed to be a party when an application is made (Reasons [3]). That statutory baseline supports treating representative bodies as parties.
Legislative ambiguity on joinder. Despite that baseline, Emmett J accepted a "hiatus" or ambiguity exists because the Act does not expressly deal with joinder of a new representative body once proceedings are underway. This raises the question whether the Court's joinder power under the Act and general procedural jurisdictions suffices (Reasons [3]).
Factual and discretionary considerations. The Court questioned whether the statutory duties of NSW NTS (under ss 203BJ(b), (d) and (e)), to identify, inform and consult potentially interested indigenous persons, necessarily constitute an 'interest' in the proceedings within s 84(5A). Emmett J said he was "not entirely convinced" but not satisfied a contrary conclusion would be clearly erroneous, and therefore was prepared to follow earlier decisions which had permitted joinder (Reasons [4]). He also addressed the objector's concerns: noting those concerns about consultation and fund allocation are important but require evidence, and until the body is a party the Court cannot regulate it in relation to the proceeding (Reasons [5]–[7]). The prospect of removal remains open on later evidence (Reasons [7], [9]).
The judge therefore joined NSW NTS and allowed NSW ALC to withdraw, while directing steps to monitor mediation and preserving avenues for later judicial intervention if evidence established inadequate consultation or non‑performance.
Before this decision, Emmett J had flagged reservations in an earlier decision (Munn v The State of Queensland [2002] FCA 78) about the Court's power to join representative bodies in similar circumstances (Reasons [2]). The judgment also places Emmett J in the company of other Federal Court judges who had recently grappled with the issue: French J in Walker (Ngalia Kutjungkatja) [2002] FCA 869, Hill J in Jack Woodridge (Gomilaroi) [2002] FCA 1109, Lindgren J in Simms [2002] FCA 15, and Madgwick J in Gale [2002] FCA 972. Emmett J expressly considered these authorities and concluded he would "be disposed to follow the decisions to which I have referred" and accept the Court has power to join the representative body (Reasons [2], [4]).
After the decision, within the immediate judicial context of these contemporaneous authorities, the position that a registered native title representative body may be joined as a party (despite statutory ambiguity) was reinforced. The decision highlights that while statutory duties of representative bodies strongly point to party status, the Act's drafting leaves room for judicial interpretation and discretionary management.
"It is tolerably clear that the Parliament intended that a representative body would be a party to proceedings..." (Reasons [3]).
"...there may be a hiatus in the legislative scheme insofar as the Act does not expressly provide for joinder of a new representative party." (Reasons [3]).
"I am not entirely convinced that the interests of New South Wales Native Services Limited... constitute an interest in the proceeding within the meaning of s 84(5A). However, I am not satisfied that a conclusion to that effect is clearly erroneous." (Reasons [4]).
"If it be the fact that New South Wales Native Services Limited is not properly discharging its responsibilities, that is a matter that should be addressed. However, until such time as that body becomes a party to the proceeding, it would not be subject to regulation by the Court in relation to this proceeding." (Reasons [6]).
"If there is evidence before me on the next occasion that there has not been appropriate consultation... that is a matter that will be taken into consideration in any application for removal..." (Reasons [9]).
This decision speaks to situations where:
In those fact patterns, the judgment suggests courts will be inclined to join the representative body where the statutory picture and prior authority support that conclusion, while preserving the court's ability to address claims of poor conduct through evidence-based removal applications.
Within the judgment Emmett J expressly considered and followed a cluster of contemporaneous Federal Court decisions dealing with joinder and representative bodies (Reasons [2], citing Walker [2002] FCA 869, Jack Woodridge [2002] FCA 1109, Simms [2002] FCA 15, and Gale [2002] FCA 972). Emmett J does not report later appellate treatment of this precise question in these Reasons. The judgment therefore forms part of a body of first-instance Federal Court authorities that, read together, supported an approach permitting joinder of registered representative bodies despite drafting gaps in the Native Title Act. Emmett J's reasons both align with and rely on those same decisions, reinforcing the practice in the period immediately following the Act's operation.
Because this judgment is interlocutory and procedural, its lasting precedential effect is limited to the narrow questions of joinder and case management: it confirms a pragmatic willingness to join representative bodies so they are subject to the Court's regulation and can properly discharge duties within proceedings, while leaving substantive complaints to be litigated on evidence.
The judgment identifies and preserves several unresolved issues:
Practitioners facing similar disputes should note Emmett J’s approach: joinder is a viable tool to make a representative body subject to Court regulation; objections about consultation or funding are taken seriously but must be pursued through evidence and may be the basis for removal once the body is a party.
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REASONS FOR JUDGMENT 1 In effect I have before me an application by two parties: first, by New South Wales Aboriginal Land Council that it be given leave to withdraw as a party and secondly, by New South Wales Native Title Services Limited that it be joined as a party to each of the two proceedings NG6046 of 1998 and NG6080 of 1998. I directed some months ago that written submissions be made concerning the Court's power to make the order joining New South Wales Native Services Limited. None of the parties opposes the proposed orders except for Mr Broomhead. 2 In Munn v The State of Queensland [2002] FCA 78, I expressed some reservations concerning the Court's power to join a body in circumstances similar to those presently under consideration. I have considered the decisions of French J in Walker on behalf of the Ngalia Kutjungkatja People v State of Western Australia [2002] FCA 869, of Hill J in Jack Woodridge on behalf of the Gomilaroi People v Minister for Land and Water Conservation for the State of New South Wales and Ors [2002] FCA 1109, of Lindgren J in Simms v Minister for Land and Water Conservation [2002] FCA 15 and of Madgwick J in Gale v NSW Minister for Land and Water Conservation [2002] FCA 972 concerning joinder. The Court in each of those cases expressed some concern as to the ambiguity of the legislation. 3 It is tolerably clear that the Parliament intended that a representative body would be a party to proceedings. That is clear from ss 84(3)(a)(i) and 66(3)(a)(ii), which provide that a registered native title body is deemed to be a party when an application is made. However, there may be a hiatus in the legislative scheme insofar as the Act does not expressly provide for joinder of a new representative party. 4 I am not entirely convinced that the interests of New South Wales Native Services Limited, in discharging its responsibilities under ss 203BJ(b), (d) and (e) to identify persons who may hold native title in the area of an application and to inform them and consult with indigenous communities that might be affected by the matters with which the body is dealing, constitute an interest in the proceeding within the meaning of s 84(5A). However, I am not satisfied that a conclusion to that effect is clearly erroneous. Accordingly, I would be disposed to follow the decisions to which I have referred and conclude that the Court does have power to join that body as a party. 5 Mr Broomhead does not challenge the Court's power, but says that as a matter of discretion, the Court should not join the body at this stage. He accepts that it is the function and responsibility of the body in question to look after the interests of all indigenous peoples who claim an interest in the land that is the subject of the application. Mr Broomhead asserts that to date, however, New South Wales Native Services Limited has not consulted adequately with him and those with the same interest as his. 6 He is concerned that such funds as are available are not being employed equitably in the interests of all possible claimants in relation to the land in question. If it be the fact that New South Wales Native Services Limited is not properly discharging its responsibilities, that is a matter that should be addressed. However, until such time as that body becomes a party to the proceeding, it would not be subject to regulation by the Court in relation to this proceeding. 7 It is open to the Court to remove a respondent. If it became apparent that New South Wales Native Services Limited is not discharging its responsibilities in an adequate fashion, that may be a ground for concluding that it no longer had an interest in the proceeding. However, if it is justiciable, that is a matter that should be considered only after proper evidence has been adduced concerning the activities of the body. 8 In the circumstances I propose to make the orders sought. The matter will be listed for directions on 7 February 2003 and, in the intervening period, as I understand it, mediation will proceed. I can do no more than express the earnest hope that the interests of Mr Broomhead will be consulted in an appropriate fashion by New South Wales Native Services Limited in connection with continuing mediation. 9 If there is evidence before me on the next occasion that there has not been appropriate consultation, that is a matter that will be taken into consideration in any application for removal, if such an application happened to be made. I will however order that the National Native Title Tribunal report no later than 31 January 2003 as to the progress of the mediations presently before it in relation to these two claims. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.
Associate: Dated: 27 September 2002 Counsel for the New South Wales Aboriginal Land Council and New South Wales Native Title Services Limited: Ms S. Phillips
Counsel for Mr Broomhead: Mr J. Broomhead appeared by telephone.
Date of Hearing: 13 September 2002
Date of Judgment: 13 September 2002
Brierley on behalf of the Walbunja People
Minister for Land & Water Conservation
The Court ordered that (1) New South Wales Native Title Services Limited be joined as a party pursuant to s 84(5) of the Native Title Act, (2) the New South Wales Aboriginal Land Council be given leave to withdraw pursuant to s 84(7), (3) the National Native Title Tribunal report by 31 January 2003 on mediation progress, and (4) the notice of motion of Mr John Broomhead be stood over until 7 February 2003 for hearing and argument (Orders; Reasons [8], [9]).