Colbung on behalf of the Karratjibbin People v State of Western Australia

1. Sharmain Connie Nelson, Reginald Danny Hayden and Michael Edward Hayden cease to be parties to the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'BRYAN J: 1 The applicant to this proceeding claims native title rights and interests on behalf of the Karratjibbin people in respect of an area located in the Western Goldfields region of Western Australia (Karratjibbin claim). In its amended form, the Karratjibbin claim concerns the land and waters within an area of more than 49,600 square kilometres. The claim area takes in Southern Cross to the south, Mukinbudin and Kalannie to the west and Mt Jackson to the north. 2 The Karratjibbin claim area is wholly within the area of a second native title claim made (in proceeding WAD 647 of 2017) on behalf the Karlamaya (Kalamaia) Kapurn (Gubrun, Kaparn) people (Karlamaya Kapurn people) (the Marlinyu Ghoorlie claim). 3 The Karratjibbin claim and the Marlinyu Ghoorlie claim are set down for trial commencing on 2 October 2023 in respect of separate questions which can be stated as follows: (a) But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, land and waters of the claim areas? (b) In relation to that part of the claim areas where the answer to (a) above is in the affirmative: (i) Who are the persons, or each group of persons, holding the common or group rights comprising the native title? (ii) What is the nature and extent of the native title rights and interests? 4 The Karratjibbin native title claim was filed on 18 February 2022, and was subsequently amended on 2 September 2022. On 11 November 2022, a delegate of the Native Title Registrar declined to register the amended application on the Register of Native Title Claims on the basis that it did not satisfy certain conditions for registration set out in ss 190B and 190C of the Native Title Act 1993 (Cth) (NTA). The claim was notified by the Native Title Registrar on 22 March 2023. The notification period ended on 21 June 2023. 5 On 13 June 2023, Ms Sharmain Nelson, Mr Reginald Hayden and Mr Michael Hayden filed a notice of intention to become a party to the Karratjibbin proceeding pursuant to s 84(3) of the NTA, and thereby became parties to the Karratjibbin proceeding by operation of that section. The notices were filed on their behalf by their solicitors, Roe Legal Services. The notices were in the same form and stated that the basis on which Ms Nelson and the Haydens wished to become parties is: Asserted native title rights and interests in the claim area but not currently included in the claim group description. 6 On 21 June 2023, Ms Nelson and the Haydens filed an application seeking to be joined as respondents to the Marlinyu Ghoorlie proceeding pursuant to s 84(5) of the NTA. In support of the application for joinder, Ms Nelson and the Haydens relied on affidavits affirmed by each of them as well as two affidavits sworn by their solicitor, Kelsi Morgan Joan Forrest, dated 7 July 2023 and 24 July 2023. The second affidavit of Ms Forrest annexed a communication from her to the Court stating that Ms Nelson and the Haydens relied on their affidavits filed in the Marlinyu Ghoorlie proceeding to support their claimed native title rights and interests for the purposes of the Karratjibbin proceeding. 7 The basis for the application to be joined as parties to the Marlinyu Ghoorlie proceeding was a claim that Ms Nelson and the Haydens each hold native title rights and interests in relation to the land or waters in the west of the Marlinyu Ghoorlie claim area (which is also within the Karratjibbin claim area), and sought to protect their interests in the Marlinyu Ghoorlie proceedings from erosion, dilution or discount. Ms Nelson and the Haydens asserted rights and interests as members of the Njaki Njaki people, who they claim are a distinct society or group of people who possess native title rights and interests in that part of the Marlinyu Ghoorlie claim area (and the Karratjibbin claim area). 8 On 9 August 2023, I dismissed the application by Ms Nelson and the Haydens to be joined as respondents to the Marlinyu Ghoorlie proceeding for the reasons given in Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia [2023] FCA 930 (Dimer). I did so because I was not satisfied, on a prima facie basis, that they have interests that may be affected by a determination of native title in the Marlinyu Ghoorlie proceeding, or that their joinder was in the interests of justice having regard to the limitations in the evidence they adduced, the delay in making the application, and the prejudice that would be occasioned to the Marlinyu Ghoorlie applicant if joinder were permitted (at [85]). 9 In Dimer, I also observed that a question arose whether the Court ought to make an order under s 84(8) that Ms Nelson and the Haydens cease to be a party to the Karratjibbin proceeding (at [86]). Before determining that question, I considered that the parties to the Karratjibbin proceeding (including Ms Nelson and the Haydens) and the parties to the Marlinyu Ghoorlie proceeding ought to be afforded an opportunity to make further submissions to the Court on that question. I made the following orders: (a) that if a party wished to make a submission that Ms Nelson and the Haydens should cease to be respondents to the Karratjibbin proceeding, the submission was to be filed and served by 18 August 2023; (b) that Ms Nelson and the Haydens may file any submission in reply by 1 September 2023; and (c) the Court would determine whether Ms Nelson and the Haydens should cease to be respondents to the Karratjibbin proceeding on the papers unless any party stated in their submissions that they sought an opportunity to make oral submissions. 10 On 18 August 2023, each of the Karratjibbin applicant, the Marlinyu Ghoorlie applicant and the State filed a written submission contending that Ms Nelson and the Haydens should cease to be respondents to the Karratjibbin proceeding. None of those parties sought an oral hearing on the question. 11 No submissions in reply were filed by Ms Nelson and the Haydens. 12 The principles concerning the removal of a party to a native title proceeding pursuant to s 84(8) of the NTA were discussed in Dimer at [42]-[45], which I adopt in these reasons. 13 It is clear that Ms Nelson and the Haydens became parties to the Karratjibbbin proceeding because they claim to possess native title rights and interests in part of the land and waters covered by the overlapping Karratjibbin and Marlinyu Ghoorlie applications. However, the form filed by them in this proceeding pursuant to s 84(3) of the NTA does not articulate those rights and interests. As I found in Dimer, the evidence adduced by them on their application to be joined as respondents in the Marlinyu Ghoorlie proceeding with respect to their claimed native title rights and interests was deficient in many respects (see at [80]). As noted above, that evidence was also relied on by Ms Nelson and the Haydens in the Karratjibbin proceeding. Ms Nelson and the Haydens did not subsequently file any submissions seeking to improve on the state of the evidence. The evidence does not persuade me that they have interests that may be affected by a determination of native title in the overlap area of the Karratjibbin and Marlinyu Ghoorlie proceedings. 14 It is also relevant to take into account the delay in Ms Nelson and the Haydens seeking to assert their claimed rights and interests in the Marlinyu Ghoorlie proceeding and the Karratjibbin proceeding. That delay was the subject of consideration in Dimer at [82]-[83]. It can be accepted that Ms Nelson and the Haydens became parties to the Karratjibbin proceeding under s 84(3) within the time allowed by that section. However, that is not an answer to the delay. The Marlinyu Ghoorlie proceeding was commenced in 2017. The rights and interests in land and waters asserted by Ms Nelson and the Haydens are within the Marlinyu Ghoorlie claim area. The Karratjibbin proceeding was filed on 18 February 2022, and the Court made orders for the hearing of the separate questions in both proceedings on October 2022. If Ms Nelson and the Haydens had not delayed in asserting their claimed rights and interests in the Marlinyu Ghoorlie proceeding, they could have applied to become active participants in the hearing of the separate questions in both proceedings. Instead, their joinder to the Karratjibbin proceeding under s 84(3) on 13 June 2023 will cause significant prejudice to the applicants and the other parties to the proceedings who are taking an active role in the hearing of the separate questions. As explained in Dimer at [83], the trial of the separate question is scheduled to commence on 2 October 2023. The deadline for the filing of lay evidence by the Karratjibbin and the Marlinyu Ghoorlie applicants has now passed. The applicants have filed expert anthropological evidence. Preservation evidence has been taken. The work undertaken to date by the current parties has been conducted without reference to the claims now asserted by Ms Nelson and the Haydens. To allow Ms Nelson and the Haydens to remain as parties would require the other parties to consider several new and significant issues within a compressed timeframe. 15 Having regard to the above matters, and particularly the findings I made in Dimer, I am satisfied that it is in the interests of justice that Ms Nelson and the Haydens cease to be parties to the Karratjibbin proceeding. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan.