Chubby on behalf of the Puutu Kunti Kurrama and Pinikura People v State of... [2015] FCA 964 | Case summary

Should the interlocutory applicants be joined as respondents? 10 Section 84(5) of the NTA provides that: (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. 11 On the face of it, persons in the position of the interlocutory applicants may be said to have "interests", because they are likely to be recognised as members of a group that hold native title rights and interests in the claim areas, and again, on the face of it, it may be argued that their interests "may be affected by a determination in the proceedings" in that the interests that they have as members of a claim group will be acknowledged by the making of the proposed consent determination. 12 If, however, one takes the view that the expression "may be affected by a determination in the proceedings" is only intended to refer to the situation where a person holds interests that are likely to be adversely affected by a determination, then it may be considered difficult to see how the interlocutory applicants, who are part of the claim groups to be acknowledged by the consent determinations as holding native title rights and interests, can have standing to be joined in the present proceeding. On the other hand, if they consider a different type of consent determination should be made perhaps they can satisfy the test. As I understand their submissions, that is how they put their case. 13 In Bidjara People #2 v State of Queensland [2003] FCA 324, a Ms Fraser applied to be joined as a party to that proceeding. She adduced evidence from which it appeared that she was a sister of a Mr Fraser, who was one of the applicants named in the proceeding. However, she wished to dispute that Mr Fraser and other applicants had authority to bring and conduct the proceeding on her behalf. 14 Noting, at [6], that in Kulkalgal People (Aureed Island) v State of Queensland [2003] FCA 163 Drummond J had rejected an application for joinder by a member of a claim group who had become dissatisfied with the way in which the named applicants were conducting the proceedings, Ryan J, at [7], said: However, it would also lead to injustice if the dissentient members were thereafter denied a voice in the determination of the claim. They clearly remain persons whose interests may be affected by a determination in the proceedings within the meaning of s 84(3)(ii) or (iii). It would unnecessarily multiply proceedings to require those persons to institute their own claims. Accordingly, I consider, notwithstanding the views expressed by Drummond J in Kulkalgal People that such persons can be made parties pursuant to s 84(5). 15 This approach to the construction of s 84(5) has been adopted in a number of subsequent matters, including Combined Dulabed and Malanbarra/Yidinji Peoples v Queensland (2004) 139 FCR 96 at [44]-[45] (Spender J); [2004] FCA 1097; and Starkey v South Australia (2011) 193 FCR 450 at [61]-[63], [65] (Mansfield J); [2011] FCA 456. 16 In Starkey, Mansfield J said, at [54], that the recognition of the breadth of discretion in s 84(5), as informed by the decision of Bidjara #2 appears to be mirrored by the recognition of the breadth of the converse discretion in s 84(8), as discussed in Butterworth v Queensland (2010) 184 FCR 397; [2010] FCA 325. 17 Mansfield J, at [58], noted that in the Combined Dulabed claim, Spender J, at [45], said he preferred the view in Bidjara #2 to that in Kulkalgal that s 84(5) left a residual discretion to allow the joinder of a dissentient group member as a respondent in certain circumstances, even though his Honour then refused the joinder, in his discretion, in the circumstances of that case. 18 Mansfield J, at [61], expressed the view that those authorities, and others his Honour referred to, on balance indicate that: (1) there is no necessary legal impediment to a member of a native title claim group being joined, or remaining, as a respondent party to the claim, but (2) the circumstances in which a dissentient member of a native title claim group will be permitted to become a respondent party under s 84(5) or, having become a respondent party under s 84(3) will be permitted to remain a respondent party, will be rare. 19 I adopt, with respect, the view expressed by Mansfield J. 20 On this basis, therefore, the Court is satisfied that the interlocutory applicants' interests arguably may be affected by the proposed consent determination. 21 The remaining and important question is whether it is in the interests of justice to join the interlocutory applicants as respondents in the proceedings. 22 In dealing with this question it is relevant to understand why it is that joinder in circumstances such as the present will be rare, as Mansfield J put it. It is because the NTA prescribes how the claimant application process is to work and it is structured in a very particular way, as was initially recognised in Kulkalgal by Drummond J where, at [5]-[7], his Honour explained that: By s 61(1), it is provided that persons who may make a native title application are persons authorised by all the native title claim group to make the application. Section 61(2) provides that in the case of such a native title application, the named applicant or applicants are jointly "the applicant" and that "none of the other members of the native title group … is the applicant". Section 62(1)(a)(iv) requires that before a claim can be accepted for filing it must be accompanied by an affidavit sworn by the applicant deposing to have the authority of all persons in the native title claim group to make the application. Necessarily, therefore, there will be an application before the Court by an applicant who represents all members of the claim group. By s 62A, the representative applicant is given full authority to "deal with all matters arising under the [NTA] in relation to the application". Ordinarily, a member of the claim group who becomes dissatisfied with the way his or her interests are being represented by the named applicant or applicants may apply to the Court under s 66B to replace an applicant or the applicants, but, as may be expected, such a replacement application can only succeed if the person who applies for it has the authority of all the members of the claim group to seek such a replacement. 23 As Drummond J also pointed out, there is no general power in this Court outside the framework of the NTA to entertain an application by a dissentient claim group member for the replacement of a named applicant or applicants under some more general rule. 24 Section 251B makes provision for the authorising of the making of applications. If there is no process of decision-making that must be complied with under the traditional laws and customs of the persons in the claim group, then by (b) the persons in the native title claim group authorise the other person or persons to make the application and to deal with the matters in accordance with the process of decision-making agreed to and adopted by the persons in the claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind. 25 Thus, it appears that a decision in relation to a claimant proceeding made by an authorised applicant should ordinarily be treated with considerable respect and not second-guessed by this Court. 26 In the present case, however, the interlocutory applicants say that when this Court considers the approval of a consent determination of native title it must determine whether it is appropriate to make the orders sought, a requirement which arises under ss 87(1) and 87A(4)(b). 27 They draw attention in this regard to what was said by North J in Hunter v State of Western Australia [2009] FCA 654 at [16]. Having noted the requirement that the orders only be made if the Court considers it appropriate to do so, his Honour stated: Thus, the main concern of the Court when considering an application under s 87 and s 87A is whether there has been a genuine agreement which was made freely and on an informed basis… . A relevant consideration on this aspect will be whether the parties have had independent and competent legal representation and, in the case of State parties, whether they have given appropriate consideration to the claims of the applicants … . 28 In short, the interlocutory applicants contend that when one has regard to the factual background to the circumstances in which the consent determination hearing is about to take place there has been no genuine agreement freely made, at least by the Puutu Kunti Kurrama people, and that the agreement has not been made on an informed basis essentially because, it is said, the applicant has not had independent legal representation. (The question of competence is not raised.) 29 In this regard, the interlocutory applicants contend as follows: There is a majority of Pinikura people within the claim group, along with the Puutu Kunti Kurrama. Each are represented by one legal advisor, being the principal legal officer of YMAC. Throughout the course of the actions there has been conflict between the Kurrama and the Pinikura, and Kurrama and YMAC. One principal source of conflict has been the ability of the Pinikura to control the conduct of the actions by outvoting the Kurrama at meetings. It is contended this fact feeds the other material conflicts the subject of the joinder application. A second source of conflict has been YMAC representing the Kurrama and the Pinikura in the actions. In 2012 on two occasions some Kurrama gave YMAC notice by petition that they did not want YMAC to act for them in and concerning the action; a request was made for independent representation and funding. YMAC's position appears to be that its appointment as Kurrama's legal advisers must continue until there is a vote to the contrary by the claim groups according to the terms of engagement. A third material source of conflict is the location of internal boundaries within the claim area. According to traditional laws and customs, Kurrama speak for (control) Kurrama land, Pinikura for Pinikura land and there is also land that they share. There may be some dispute about the location of boundaries, but there does not appear to be any dispute about the principle of there being three "provinces" within the claim area. In October 2013, the Kurrama and Pinikura "allegedly agreed" on the internal boundaries of the claim area. The terms of the proposed consent determination as seen by the interlocutory applicants provide for the appointment of a single prescribed body corporate (PBC) over the claim area. The interlocutory applicants are individually concerned that the proposed consent determination does not appropriately account for the separate control of the three provinces within the claim area, so that the Pinikura by their representatives on and voting power within the PBC may control Kurrama land, contrary to traditional law and custom. The interlocutory applicants fear the terms of the proposed consent determinations will undermine their native title rights and interests and result in continuing conflict between the Kurrama and the Pinikura. 30 The interlocutory applicants go on to confirm that their primary submission is that the terms of the proposed consent determinations they have seen (which I interpolate to say was as of March 2015) do not appropriately record their traditional laws and customs. 31 They say their secondary concern is that the appointment of one PBC over the claim area is "ripe for abuse" in so far as the Kurrama provinces within the area may be controlled contrary to traditional law and custom. 32 They say any such "abuse" could be avoided by a more prescriptive determination of native title than seems to be proposed. This, it is contended, would be a more desirable course than simply leaving open the opportunity for "future abuse" requiring more litigation, this time between native title holders and the trustee and agent of their native title. 33 The interlocutory applicants each put on affidavits made 18 August 2015. Each: confirmed they were Kurrama people. Ms Hayes also explained that she was of Pinikura and Thalanyji descent but she followed her mother, who, in turn, followed her father, a Puutu Kunti Kurrama person. Similarly, Ms Ashburton said she was a Puutu Kunti Kurrama woman of Kurrama and Pinikura indigenous descent. says that her elders has told them that just because you were born with someone else's country does not give you rights over their country and that Pinikura have to ask Kurrama permission to come onto Kurrama country. refer also to the affidavits of three elders (now deceased) who it is said identify the separate Kurrama native title rights and Pinikura native title rights and that they have two different languages and different country and traditional laws and customs. say that there was a meeting in Onslow on or around 20 November 2012 where a map was generated to reflect the internal boundary between Kurrama country and Pinikura country and a "shared area". 34 Ms Hayes says: she is "authorised by the majority of the Kurrama people to speak on their behalf"; she has also attended native title meetings for many years and has consistently spoken on behalf of Kurrama people; that she sat on the Kurrama and Pinikura Working Group and now sits on the Land Committee, Traditional Owners' Council, Heritage Committee and Decision-Making Committee; that in October 2013 "a majority of the Kurrama people" decided to establish the Puutu Kunti Kurrama Development Aboriginal Corporation and produce the rule book of that Corporation; membership is limited to individuals with Kurrama descent and who identify as Kurrama people; that Kurrama group is about 100 adults and "we have about 65 Kurrama individuals who are now members of the [Corporation]" and are also native title claimants; she has a strong belief that the proposed consent determination does not accord with Puutu Kunti Kurrama people's native title rights and interests; it creates "rights for Pinikura people over Puutu Kunti Kurrama country and that is not right"; YMAC, since about 2014, have held separate community meetings for Kurrama and Pinikura groups, however, they have been in Karratha when most of the Kurrama people live in and around Onslow; that decisions have been made on behalf of Kurrama people which do not protect Kurrama interests; she has advised YMAC staff and claim lawyers on many occasions to make separation between the two groups; that the Kurrama cannot accept a consent determination which does not recognise the separate right to speak for country; that steps have been taken since February 2012 to terminate the retainer with YMAC and to withdraw instructions for them to act; that she produces copies of the petitions by which she and others wanted independent advice and funding from YMAC, in response to which YMAC took no action, she says; and in March 2012 a second petition was sent to YMAC expressing a desire for independent advice but again concerns were not addressed. 35 Ms Ashburton makes the same or similar points in her affidavit. 36 The applicant, in opposing the joinder application, relies on two affidavits filed in the proceeding, being those of Mr Ashburton, dated 21 August 2015, and Mr O'Dell, dated 7 August 2015. Mr Ashburton's affidavit specifically responds to the joinder application. Mr O'Dell's affidavit was filed earlier in support of the minute of proposed consent determination. 37 Mr Ashburton, as noted above, is one of the named applicants comprising the applicant in these proceedings. He makes the following points: There are six named applicants, three are of the Puutu Kunti Kurrama language group and the other three are Pinikura. The six were authorised by the claim group last year to replace the earlier named applicants. He was elected as one of the three named applicants from the Puutu Kunti Kurrama group. He confirms Ms Hayes and Ms Ashburton are members of the claim group and are Kurrama people. As an applicant he agrees with the proposed consent determination. He attended a meeting of the claim group at the Ibis Hotel in Karratha on 11 June 2015. The other Puutu Kunti Kurrama named applicants, Dianne Chubby and Robert McKay, were also there. There was a meeting in the morning of the PKKP Aboriginal Corporation of which he is a director. Both Kurrama and Pinikura group members attended that meeting. In the afternoon there was a meeting organised by YMAC. The Kurrama members and Pinikura members met separately in different rooms but at the same venue. They talked about moving forward with a consent determination and the rule book for the PBC that will hold the native title. YMAC had sent out notices for that meeting a few weeks earlier. They had been having these meetings in Karratha for the past two or three years. All the meetings about the consent determination have been in Karratha. They used to have meetings in Onslow, mainly community meetings, but there were not enough venues there to hold meetings. The old Shire hall had burnt down. From what he remembers other meetings, like with mining companies, have always been in Karratha. There was a normal number of Kurrama language group members at the meeting, including the interlocutory applicants. The agreed and adopted decision-making process of the claim group in native title matters is to attempt to reach consensus and, if this is not possible, the decision is made by a vote of each language group, so that at least half of the Pinikura language group members present need to vote for the motion and at least half of the Kurrama language group members present need to vote for the motion, before it can be passed. That way neither language group can control the decision-making based on a majority of numbers. That was agreed and adopted two years ago as a result of the concerns raised by the interlocutory applicants. On 11 June 2015, the Kurrama language group members passed a motion to support the terms of the consent determination. It was passed by consensus. Mr McKay moved the motion and he (Mr Ashburton) seconded it. Dianne Chubby was there and she supported it. From what he remembers noone spoke against it. He understands the Pinikura language group members passed a similar resolution. He has attended many claim group meetings and has spoken to many members who are Kurrama language group members and on the basis of what he has seen and heard, he believes a majority who are in the claim group do not support the interlocutory applicants and do not accept them as their spokespeople. At meetings in August 2014 and February 2015, the claim group agreed to set up two Land Committees, one for the Kurrama and one for the Pinikura members and agreed to rules for a PBC. There are six members on each Land Committee and four members from each language group are nominated as directors of the PKKP PBC. He is a member of the Puutu Kunti Kurrama Land Committee and has been elected by the Kurrama to be a director of the proposed PBC. The other Kurrama language group Land Committee members are Dianne Chubby, Joan Ashburton, Sandra Hayes, Harold Ashburton (Joan Ashburton's brother) and Burchell Hayes (Sandra Hayes' brother). The Puutu Kunti Kurrama language group members who are directors of the prescribed body corporate are him, Dianne Chubby, Sandra Hayes and Burchell Hayes. The role of the Land Committees and the prescribed body corporate directors are set out in the rule book authorised earlier this year. He is aware of the Puutu Kunti Kurrama Development Aboriginal Corporation but has not signed up and understands that it has members who are not part of the applicant claim group. That corporation has never been appointed by the applicant or claim group, the Kurrama language group members of the claim group, the Puutu Kunti Kurrama Land Committee or the proposed PKKP PBC to be a representative of the claim group or the Kurrama language group members of the claim group. He denies that it represents the claimants. The claim group has a "benefits management (trust) structure", which was set up to manage benefits from an agreement with Rio Tinto. There is a decision-making committee of the claim group that makes decisions about how the trustee company will manage the trust monies. There is also a Council that makes certain decisions. Sandra Hayes, Burchell Hayes and Dianne Chubby are on the decision-making committee, as Kurrama representatives. There are also three Pinikura representatives on the committee. He is on the Council, as one of Kurrama representatives. There are also six Pinikura representatives on the committee. The trust decision-making committee has approved distributions to help people attend the consent determination on 2 September 2015. There will be a meeting of the Council on 31 August 2015 to confirm the decision of the decision-making committee. As one of the named applicants, he confirms that YMAC is authorised to represent the claim group in relation to the making of a consent determination. He asked that the Court not allow the interlocutory applicants to become respondents to the claims and not to delay the making of the consent determination. 38 Mr O'Dell, in his 7 August 2015 affidavit, which was obviously made before the joinder application was lodged and for the purpose of supporting the making of consent determinations, describes, albeit not in every last detail, the claim group meeting held at Karratha on 15 August 2014, which he says had the purpose of discussing and providing instructions to YMAC in relation to the future conduct of the proceedings and related matters. The evidence he there gives, which is not otherwise challenged, is that the meeting was well attended by both language groups and that language groups met separately and elected two Land Committees to jointly progress the claims but separately dealt with matters concerning their respective language group areas and matters associated with the rule book for the proposed PBC. 39 He confirmed that the decision-making process involves first trying to reach consensus and if that is not possible then to take a vote of each language group equally so that at least half of the Pinikura members present would need to vote for a motion and at least half of the Kurrama language group members would need to vote for the motion before it could be passed. 40 He says that from these two meetings YMAC received instructions to convene an initial meeting of the Joint Land Committee that had been elected in order to progress the development of the draft rule book for the proposed PBC. That then occurred on 11 December 2014 where a draft PKKP PBC rule book was discussed. He says the draft rule book was produced by YMAC based on its intimate knowledge of the claim group, the agreed and adopted decision-making process of the two language groups and the laws and customs of both peoples. Amendments were made to the rule book. 41 He says that the Joint Land Committee resolved by consensus to instruct YMAC to convene another Joint Land Committee meeting for the end of January 2015 to further consider the draft and to hold a community meeting as soon as practicable after that to authorise the rule book. 42 He says a second meeting was held on 29 January 2015 at which the rule book was extensively discussed. At the end of the meeting, the Joint Land Committee resolved by consensus to recommend that the claimants authorise and approve the rule book for the proposed PKKP PBC which was recommended as being the PKKP Aboriginal Corporation. 43 Mr O'Dell says that on 13 February 2015, a properly notified and convened meeting of the claimants was held at Karratha and the people who attended the meeting were broadly representative of the language groups and were also representative of the broader language groups within the claimant community in a manner consistent with those who regularly participate in community meetings. All of the persons comprising the applicant were present. Four of the six directors of the PKKP Aboriginal Corporation were also present. No one was prevented from attending. 44 He says that at the request of a number of Kurrama language group members, separate meetings with the Kurrama and Pinikura language groups were convened and he attended the meeting of the Kurrama language group members while his colleague attended that of the Pinikura group. 45 He says identical detailed presentations were made to the two language groups as to the contents of the rule book and what the rules meant. 46 Ultimately, he says the resolutions passed were to accept the rule book which included the structure of separate Land Committees for each language group to be elected by the PBC members from the same language group; the internal boundary authorised by the community on 27 October 2013 was to be Sch 3 to the rule book as the boundary between the Land Committees; and other relevant resolutions. 47 Further the community resolved to request of the PKKP Aboriginal Corporation that it become the PBC for the native title determination and for the native title to be held on trust. It also resolved for the PKKP Aboriginal Corporation to incorporate the rule book authorised that day into its rules for the purposes of being the PBC. 48 Further, the community resolved to authorise YMAC and the Land Committees to negotiate a consent determination with the State on behalf of the claimants and to provide a final draft determination for authorisation by the community. 49 Mr O'Dell gives further evidence about the third meeting of the Joint Land Committee, held on 23 April 2015, and a fourth meeting on 25 May 2015. Finally, the Joint Land Committee resolved by consensus to recommend to the claim group that they authorise and approve the consent determination. 50 Then on 11 June 2015, a properly notified and convened meeting of the claimants was held at Karratha, which was broadly representative of the two groups and the attendees were again representative of the broader groups within the community in a manner consistent with those who regularly participate in community meetings concerning the claims and related matters. 51 Again, at the request of Kurrama language group members, separate meetings of the Kurrama language group members and the Pinikura language group members were convened and he again attended the meeting of the Kurrama language group members. 52 Ultimately, he says, the resolution passed was that members of the community meeting held at Karratha on 11 June 2015 resolved to authorise a native title consent determination as outlined at that meeting by YMAC lawyers and authorised YMAC to negotiate any minor or technical changes that ensure the consent of all parties. 53 In my view, the matters explained in detail by Mr Ashburton and Mr O'Dell, which I accept, lead to the conclusion that it is not appropriate, in the interests of justice, to join the interlocutory applicants as respondents to the proceedings. 54 While plainly there is, as this joinder application demonstrates, some disagreement between some Kurrama members of the claim group and other Kurrama people about the appropriate terms of a native title determination, and particularly the nomination of a single PBC, the material before the Court largely shows that disputation to have an historic element to it and that the basis upon which the proposed PBC will be structured and operate obviates or responds to the particular customary concerns expressed by the interlocutory applicants. 55 While the interlocutory applicants may continue to harbour concerns about the consent determination proceeding as proposed, the background establishes a number of salient facts: As Mr Ashburton says in his affidavit, last year, by an application under s 66B of the NTA, the current named applicants were authorised as the applicant for this claim under the NTA. This occurred following some obvious differences between some Kurrama claim group members, and the petitions to which the interlocutory applicants refer, made to YMAC. Thus, it is clear from the making of the replacement order that the claim group as a whole voted to replace the then named applicants who were of the Kurrama group, with a new group of Kurrama applicants. Some of the former named applicants are said by the interlocutory applicants to be among the Kurrama people for whom they assert they now speak. But the reality is that the claim group then adopted a decision-making process, as Mr Ashburton has emphasised, that involves the Kurrama people voting on matters concerning them together, and the Pinikura people voting on matters concerning them together, separately from each other. This is fully explained in Mr O'Dell's affidavit. The steps taken since the replacement of the applicant last year show that the PBC that is proposed to hold the native title following the making of consent determinations includes Land Committees that represent separately the interests of the Kurrama, on the one hand, and the Pinikura, on the other. The interlocutory applicants are involved on the Puutu Kunti Kurrama Land Committee. It is also evident that the interlocutory applicants attended and participated in relevant meetings of the Land Committee and also in meetings which authorised progress of consent determinations that took place in Karratha on 11 June 2015. 56 When one has regard to the facts set out in the affidavits of Mr Ashburton and Mr O'Dell, it is plain that the named applicants who are Kurrama people, who are authorised to deal with the native title application, support the making of the consent determinations. Further, those Kurrama named applicants were voted into their positions at an authorisation meeting last year leading to the replacement order. The NTA operates on the basis, as explained above, that the authorised named applicants make decisions about native title and the claimant application. Unless there is a very good reason to intervene, that authorisation and decision-making process created by the NTA should be respected by the Court and permitted to operate without Court intervention. For this reason, it will only be in a rare case where Court intervention occurs. 57 There also appears to be, as the applicant and the State in separate submissions submit, some misconception by the interlocutory applicants about the way in which the PBC will operate following the making of any consent determination. The affidavits of the interlocutory applicants include an earlier version of the proposed consent determination and structure of the PKKP PBC. 58 As the State point out, importantly the minute of proposed consent determination filed by the parties on 19 August 2015 contains important changes from the draft dated 19 March 2015, which is annexure SH5 to Ms Hayes' affidavit: (i) The addition of Recital E as follows: The PKKP Applications are made on behalf of two separate but related language groups (Puutu Kunti Kurrama People and Pinikura People) who together claim rights and interests within the claim area. The applications are made on the basis that within the application area, as between the Puutu Kunti Kurrama People and Pinikura People, the Puutu Kunti Kurrama People speak for Puutu Kunti Kurrama country, Pinikura People speak for Pinikura country, and together they both speak for a shared area of country. While this delineation is not apparent in the terms of the determination, it is reflected in the membership and decision making structure of the prescribed body corporate nominated by the Applicants to hold the determined native title on trust for the native title holders (see Recitals I and J below). On that basis, the parties have agreed that a single determination in favour of the Puutu Kunti Kurrama Pinikura People is appropriate in the circumstances. (ii) The inclusion of a rule book (Attachment B to the minute of proposed consent determination) approved by the parties which includes detailed provisions for management of the respective Pinikura and Kurrama country, as well as their shared country, incorporating the 'PKKP Internal Boundary & Shared Area' map (see Applicant's submission in opposition to interlocutory application dated 26 August 2015 at [21]). (iii) Addition to the recitals (I and J) and amendment to the orders (1-4) to provide that the determination will not take effect until a prescribed body corporate having an approved form rule book (being the rule book at Attachment B or as subsequently amended and approved by the First Respondent) is nominated by the native title holders. 59 In this regard it is also appropriate to note the submissions made on behalf of the applicant, which I accept: 20. Secondly, and without conceding that it is necessary or appropriate for the Court to rule upon the matter, the Applicant submits that the interlocutory applicants' concerns are, on proper analysis, unfounded. 21. There is no dispute that Pinikura and Kurrama are separate but related language groups, that they have agreed an internal boundary, and that members of one group cannot speak for the land of the other group (noting they both speak for the shared area). This is acknowledged in the proposed consent determination at recital E. The determination is contingent upon there being a PBC which has a rule book consistent with Attachment B to the determination. That rule book, amongst other things: (a) provides for: (i) separate Puutu Kunti Kurrama Members and Pinikura Members, and separate classes of associate membership (see in particular rules 5.1, 5.3.2(b)); (ii) separate Land Committees for each language group area (see in particular rules 5.2.3(f) and (h), 8, 11.6-11.10, 12.2, 12.3(f)); and (iii) an equal number of directors to be appointed from each language group (see in particular rules 9.2, 9.4.1); and (b) annexes the 2013 'PKKP Internal Boundary & Shared Area' map referred to in the affidavit of Sandra Hayes affirmed 18 August 2015 at [17] and Annexure SH1, and in the affidavit of Joan Maureen Ashburton affirmed 18 August 2015 at [35]. 22. As a matter of law it does not follow from the fact that there is one determination covering two language group areas, that all common law holders have equal rights throughout the whole of the determination area. The proposed determination is consistent with there being an intramural allocation of rights amongst the common law holders. It is not necessary for a determination of native title to set out that intramural allocation of rights. See Northern Territory v Alyawarr (2005) 220 ALR 431 at [79]-[85], [101], [109]; Banjima v Western Australia (No 2) (2013) 305 ALR 1 at [527]-[529]. Cf affidavit of Sandra Hayes affirmed 18 August 2015 e.g. at [33], [43], [49]; and affidavit of Joan Maureen Ashburton affirmed 18 August 2015 at [23]-[28], [60]. 23. As stated above, the intramural allocation of rights is specified in the recital to the determination and the PBC rules annexed to the determination. As to the concern of the interlocutory applicants that the rule book of the PBC can always be changed (affidavit of Sandra Hayes affirmed 18 August 2015 at [46]), the PBC rule book can only be amended by a Special Resolution, which requires at least a 75% majority support amongst all members present at a general meeting and at least 50% majority support amongst each of the Pinikura members present and amongst the Kurrama members present: see rules 7.11.1(d) and 24.1(a). 24. The proposed form of consent determination and rule book is the product of extensive 'without prejudice' negotiations between the Applicant and claim group, and the various respondents, particularly the State. Whether or not the form of the determination is exactly what each member of the claim group would prefer is not the issue. The issue is that, consistently with the objects of the NTA, the parties have negotiated and reached an agreement, acceptable to all parties, as to the terms of a consent determination. Cf affidavit of Sandra Hayes affirmed 18 August 2015 e.g. at [48], [49]. 60 The Court accepts and understands that the question of a native title determination is of fundamental importance to any claim group who make a claimant application under the NTA. A determination made has lasting effect. But that of itself, and the fact that there is some disagreement between some Kurrama people, such as the interlocutory applicants, cannot, in the circumstances of this case, detract from the fact that the applicant is authorised to deal with the application, including the making of the proposed consent determination. The Kurrama named applicants were all authorised last year by a claim group meeting to be Kurrama representatives. The Kurrama named applicants all supported the progress of the consent determination at the recent meeting in Karratha. The terms of the proposed consent determination in fact recognise that there is one Land Committee exercising responsibility in respect of Kurrama country, and another Land Committee exercising responsibility in respect of Pinikura country, and yet another dealing with shared country. 61 The principal objection of the interlocutory applicants, therefore, seems to be to the proposal that there be one PBC. But having regard to the manner in which that PBC is proposed to be established, as explained by the submissions of the applicant and the State above, the submissions made by counsel on behalf of the interlocutory applicants that this will inevitably be productive of future disputation and litigation must be treated as speculation. The rules adopted for the proposed PBC are appropriately designed to effect customary control over different areas within the claim areas through the separately constituted Land Committees. It must also be recalled that the PBC, by virtue of s 56(3) of the NTA, holds the relevant native title "in trust for the common law holders" - which, in this case, are the various PKKP claimants. 62 There is a further aspect to the matter that should also be mentioned, and that is the question of delay in the bringing of the joinder application very late in the proceedings, just before the consent determination hearing. Such an application could have been made last year, before, or soon after the time the replacement applicants were put in place. That did not happen. Nor was there any subsequent legal challenge to the nomination of the replacement applicants. After the replacement applicant order was made by the Court, as set out above, the Kurrama members of the claim group, including the interlocutory applicants, got on with the business of advancing the negotiations with the respondents for a consent determination and the setting up of the relevant PBC. While there plainly were concerns about how the PBC would work, the latest formulation of its rules has, as pointed out above, obviated concerns by appropriately regulating, by Land Committees, how the separate Kurrama and Pinikura interests in the claim areas are to be dealt with. 63 In that light, this joinder application, brought at the last minute before the consent determination hearing, seems designed to upset the completion of a consent determination that has been progressed by the duly authorised applicant. In doing so, as the applicant submits, and as Mr Ashburton says, it can only cause the delay of the long held hopes and ambitions of the indigenous applicants as a whole to achieve recognition of their native title under the NTA. 64 So far as the submission is concerned that YMAC has continued to act for the applicant in the proceedings, I consider this complaint has no substance. The evidence before the Court shows that YMAC is appropriately retained. Mr Ashburton has confirmed that the applicant continues to retain YMAC. 65 To the extent that the interlocutory applicants would like some other lawyers to represent or advise the applicant and have petitioned over time for this to happen, it is, in these circumstances, neither here nor there. The mere assertion by a dissentient claim group member that YMAC should be replaced or that the dissentient claim group members should be separately funded by YMAC to obtain independent legal advice, cannot, of itself, sustain a submission that YMAC has failed to give independent (or competent) legal advice in relation to the proceedings. There is no evidence to support any such claim. The petitions, it will be noted, also pre-date the replacement applicant order made last year, since when the proceedings have been advanced in the manner described above. 66 When one takes into account all of these circumstances, the Court is of the view that it is not in the interests of justice that the interlocutory applicants now be joined as respondents in the proceedings.

Chubby on behalf of the Puutu Kunti Kurrama and Pinikura People v State of Western Australia

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