REASONS FOR JUDGMENT
1 The Court has before it two applications for determination of native title, made pursuant to s 61 of the Native Title Act 1993 (Cth) ("the Act"). The first of the two applications to be filed is number WAG 6007 of 1998. There are five named applicants: Jack Britten, Shirley Drill, Phyllis Gallagher, Bernard Stretch and Hector Chunda, who claim to be authorised by a group described in the amended application to make the application. The land the subject of this application is located in the north of Western Australia, to the west of the Ord River. The application has been designated by the applicants as the Purnululu native title application. The description of the group of people who claim native title with respect to the subject land contains an express exclusion of a woman named Tanba Banks.
2 The second of the two applications is number WAG 6199 of 1998. The sole applicant named in that application is Tanba Banks. The subject land overlaps to a significant degree the land the subject of the Purnululu application but is not wholly coincident with it. It is convenient to call this application the Jiddngarri native title application. The Jiddngarri application is said to be made on behalf of the "Banks and related families". The application suggests that the native title claimed has been inherited from the father, grandfather and grandmother of Tanba Banks. These descriptions make it difficult, if not impossible, to identify the persons who are claimed to be the native title holders of the land the subject of the Jiddngarri application.
3 In these reasons for judgment, I refer to the area of land in respect of which the two applications overlap as "the overlapping area".
4 Section 67 of the Act requires that, if two or more proceedings before the Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make orders to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding. The order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings. Section 68 of the Act provides that, if a determination of native title is made in relation to a particular area, the Court must not conduct any proceeding relating to an application for another determination of native title or make any other determination of native title in relation to that area or to an area wholly within that area, except for an application to revoke or vary the first determination or a review or appeal of the first determination. These provisions make it necessary that the Court deal with the overlapping area in a single proceeding.
5 Because the areas of land the subject of the two applications do not coincide entirely, and because the area of land the subject of the Jiddngarri application overlaps with the area claimed in yet another application for determination of native title, it is not possible simply to consolidate the two proceedings. The appropriate course then appears to be to deal with one of the applications. In this respect, it is preferable to deal with the Purnululu application, because it came to the Court before the Jiddngarri application and because it involves an area of land that does not appear to overlap with the area the subject of any application for determination other than the Jiddngarri application. It would be appropriate, therefore, to join as parties to the Purnululu application all persons who are parties to the Jiddngarri application but are not yet parties to the Purnululu application. This would accord with O 6 r 8(1) of the Federal Court Rules, which provides:
"Where a person who is not a party:
(a) ought to have been joined as a party; or
(b) is a person whose joinder as a party is necessary to ensure that all
matters in dispute in the proceeding may be effectually and completely
determined and adjudicated upon,
the Court, on application by him or by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceeding."
6 It would be possible to join Tanba Banks as a party to the Purnululu application and to proceed with that. The possibility exists, however, that there are persons whom Tanba Banks alleges to be native title holders in respect of the overlapping area, whose identity is not presently known, and who are not already parties to the Purnululu application. If the identity of any such person can be ascertained, that person could also be joined as a party to the Purnululu application.
7 It appears to be undesirable simply to order that Tanba Banks provide a list of the names of the persons whom she claims hold native title to the overlapping area. The Jiddngarri application appears to have been drawn without the assistance of a lawyer. Tanba Banks has signed it by means of a cross, which suggests that she does not read or write. She is presently not represented by a lawyer, so far as the Court record shows.
8 Order 34 r 2 of the Federal Court Rules provides:
"(1) Where a question for an expert witness arises in any proceedings the
Court may, at any stage of the proceedings, on its own motion or on
application by a party or the Registrar:
(a) appoint an expert as court expert to inquire into and report
upon the question;
…
(2) In sub-rule (1), expert, in relation to any question, means a person
who has such knowledge or experience of, or in connection with, that
question, or questions of the character of that question, that his
opinion on that question would be admissible in evidence."
9 From an examination of the Court files in the two applications, I formed the view that the ascertainment of the identity of the persons claimed by Tanba Banks to be the native title holders of the overlapping area might be a question for an expert witness. A suitably qualified anthropologist, with experience of field work and research among Aboriginal people in the North of Australia, could interview Tanba Banks, using methods of inquiry appropriate to the circumstances, in an endeavour to ascertain the identity of the native title holders put forward by her. If necessary, the anthropologist might interview other persons, following such leads as may arise from the initial inquiries, with a view to ascertaining the identity of the persons who are, or might be, said to be the native title holders referred to in the Jiddngarri application.
10 Having formed this view, I requested a deputy district registrar in the Western Australia District Registry of the Court to advise the parties in both the Purnululu application and the Jiddngarri application of orders that I thought might be appropriate. As a result, a letter was sent to those parties on 2 April 2001 in the following terms:
"These two matters have now been allocated to Justice Gray's docket.
On 2 February 2001 the applicants in matter WG 6007 of 1998 ("Purnululu") filed with the Court a notice of motion, seeking to strike out the application in matter WG 6199 of 1998 ("Jiddngarri"). His Honour has now reviewed the material in relation to these two claims and has requested I write to you in relation to the future conduct of these matters.
The two applications relate to overlapping areas of land, raising issues as to the application of sections 67 and 68 of the Native Title Act 1993. For this reason, it might have been considered convenient to consolidate the two proceedings. It appears, however, that the area covered by Jiddngarri also overlaps to some extent with the area covered by another application for determination under the Act. Consolidation of the two proceedings in Justice Gray's docket would therefore raise similar problems with respect to the third proceeding.
His Honour notes that on 19 July 2000 the applicants in Purnululu forwarded to the Court proposed consent orders. These included an order that, pursuant to section 67 of the Act,the claimant group in Jiddngarri be joined as second applicants to the Purnululu application. The difficulty about making such an order is that the identity of the persons said to be the native title holders in Jiddngarri is not presently known. The application is made by Tanba Banks. It is said to be made on behalf of the "Banks and related families". The application also suggests that the native title has been inherited from the father, grandfather and grandmother of Tanba Banks. An order joining people as parties without naming, or at least describing, them might give rise to the possibility that there will be people who claim to hold native title rights and interests in an area with which the Court is to deal in Purnululu, who are not before the Court. At the very least, that would be an undesirable way to proceed.
Whilst it is clear that Tanba Banks has had some assistance in the preparation of her application, she is apparently not represented by any legal adviser or other person in relation to the Jiddngarri application. She has signed documents by affixing her mark. There is obvious difficulty in ordering her to name, or otherwise describe, all of the native title holders on whose behalf she has instituted the proceeding. Justice Gray is therefore of the view that a question for an expert witness has arisen in Jiddngarri as to the name or description of the persons claimed to be native title holders of the land to which the application relates.
His Honour proposes, of the Court's own motion, in the Jiddngarri matter to make the following order:
Dr Deborah Bird Rose, an expert anthropologist, be appointed as court expert to inquire into and report upon the question of the identification, name or description, of the persons claimed by Tanba Banks to be the holders of native title with respect to the land to which the application relates.
Dr Rose make such inquiry by seeking to interview Tanba Banks and such other persons as Dr Rose may see fit to interview.
Dr Rose report to the Court on or before Friday 15 June 2001.
The report be distributed to the parties in matter WG 6199 or their representatives, and to the parties in matter WG 6007 or their representatives, on or before Friday 22 June 2001.
Without further order of the Court, the report not be used for any
purpose other than to consider the joinder of the persons named or described in it as applicants in matter WG 6007.
If any party in either proceeding wishes to make submissions about this proposed order, Justice Gray has directed that they be made in writing to Deputy District Registrar Scotty Hammond on or before Friday 20 April 2001. After that date, his Honour will consider whether to proceed to make the proposed order, or some other similar order, or to make no order at all.
If such an order is made, and the expert is successful in ascertaining the identity of the native title holders in respect of whom the application in Jiddngarri has been made, consideration can then be given to the question of joining those persons as parties to the application in Purnululu."