Consideration
77 For the reasons that follow, I am not satisfied, on a prima facie basis, that the joinder applicants have interests that may be affected by a determination of native title in this proceeding. I am also not satisfied that their joinder is in the interests of justice having regard to the limitations in the evidence that has been adduced, the delay in making the application and the prejudice that would be caused to the Marlinyu Ghoorlie applicant by virtue of the late application.
78 The evidence establishes that each of the joinder applicants were actively involved in the pursuit, and eventual resolution, of the Ballardong claim over a number of years. Mr Reginald Hayden was a signatory to the Ballardong People ILUA in his capacity as a representative party. Mr Michael Hayden was involved in a number of different capacities, including as a member of the Ballardong working group, a deputy chair of SWALSC, a member of the Ballardong negotiating party in relation to the South West Native Title Settlement, and a director of the Ballardong Charitable Trust. Ms Nelson was also a member of the Ballardong working party and a director of SWALSC.
79 The evidence also shows that the Njaki Njaki people were recognised as a separate and distinct group, which formed one of the constituent groups of the Noongar nation. That is made clear by the note to sch 1 of the Recognition Act. The claims of the Njaki Njaki people with respect to their native title rights and interests in the land and waters which formed part of the single Noongar claim area were settled as part of the Ballardong People ILUA and the South West Native Title Settlement more generally.
80 However, the evidence before me does not establish that the joinder applicants have an interest of a kind that may be affected by a native title determination in this proceeding. The evidence falls far short of establishing a prima facie case that the joinder applicants have an interest of a kind required by s 84(5): Wakka Wakka People #2 at [6]. Indeed, it rises to little more than a generalised assertion that there is an area, which is not clearly or uniformly defined by the joinder applicants, within the trial area that is Njaki Njaki country. The principal defects of the joinder applicants' evidence are as follows:
(a) There is no clear identification of Njaki Njaki people. Only Ms Nelson states expressly in evidence that she has Njaki Njaki identity. Only Mr Michael Hayden expressly identifies claimed Njaki Njaki ancestors. He deposes that his paternal grandmother, Phoebe Hayden (who was born outside of the trial area and within the area subject to the Ballardong People ILUA) was Njaki Njaki, that she in turn derived her Njaki Njaki identity from her father, William Nelson, who was Njaki Njaki through his mother, Ada Foss. Both Ms Nelson and Mr Reginald Hayden identify Ada Foss as their ancestor, but they do not state in their evidence that Ada Foss was Njaki Njaki. Each of the joinder applicants deposes that Ada Foss was born in about 1860 in Kellerberrin, which is outside of the trial area and within the Ballardong People ILUA area. There is no evidence as to any connection of, or rights and interests held by, Ada Foss within the trial area. Nor is there any evidence of her presence or activities in that area from which such connection or rights and interests may be inferred. Similarly, Mr Michael Hayden does not give such evidence in relation to Phoebe Hayden or William Nelson.
(b) There is no evidence regarding the law and customs of the Njaki Njaki that are acknowledged and observed by a community of Njaki Njaki people (including the joinder applicants) today, and from which native title rights and interests in Njaki Njaki country, and their connection to the land and waters that are said to constitute that country, derive. Ms Nelson deposes generally to activities on country undertaken by her father and her family, including hunting and gathering bush medicine, but does not identify where those activities took place. Similarly, although Ms Nelson gives evidence about her father attending a ceremony at Southern Cross as a child, she does not explain what the ceremony was about or how it is connected to Njaki Njaki law and custom.
(c) The evidence adduced as to the extent and boundaries of Njaki Njaki country within the trial area lacks detail and coherence. Many of the places identified by the joinder applicants in their evidence are located outside of the trial area and within the Ballardong People ILUA area. Of those places identified within the trial area, there was little commonality between the joinder applicants.
(d) The evidence of the joinder applicants is unsupported by any historical or ethnographical material with respect to the Njaki Njaki, their traditional country and their traditional laws and customs.
81 The deficiencies in the joinder applicants' evidence are such that I cannot be satisfied to the standard required by s 84(5) that they have an interest sufficient to found their joinder. I have no reason to doubt that the joinder applicants' views as to their rights and interests are genuinely and honestly held. I also accept that this evidence has been prepared on a preliminary basis for the purpose of joinder, and that efforts may be made, if joinder is allowed, to improve the body of evidence available for the purpose of trial. Nonetheless, the evidence in its current form must form a cogent and probative basis from which the facts capable of establishing an interest for the purpose of s 84(5) can be drawn. The evidence does not do so.
82 I am also not satisfied that joinder would be in the interests of justice. The joinder applicants' delay in asserting their rights and interests, whether as respondents to this proceeding or by way of a separate native title claim, is significant. In my view, the explanation provided for that delay is inadequate. Whilst I acknowledge the difficulties posed by an absence of funding and a lack of support from relevant native title services, there were steps that could have been taken by the joinder applicants quickly and with minimal expense to preserve their position. For example, the joinder applicants could have sought to be joined as respondents during the notification period, using the administrative process contemplated in s 84(3) of the Act. Two of the joinder applicants gave evidence in relation to certain representations made to them, or expectations held by them, in relation to their inclusion in the Marlinyu Ghoorlie claim, apparently by way of explanation for the delay in taking steps in relation to this proceeding. However, I am unable to place weight on this evidence in circumstances where neither Mr Reginald Hayden nor Mr Michael Hayden expressly stated in their affidavits that they relied on these representations or expectations in refraining from taking other steps, and where the joinder applicants did not make a submission inviting the Court to draw that inference. To the contrary, the joinder applicants appeared to disavow any such submission at the hearing of the application.
83 In my view, it would cause significant prejudice to the Marlinyu Ghoorlie applicant and the other parties to the proceeding if the joinder were allowed at this late stage of the proceeding. The trial of the separate question is scheduled to commence in approximately two months' time. The deadline for the filing of lay evidence by the Marlinyu Ghoorlie applicant has now passed. The Marlinyu Ghoorlie applicant has filed expert anthropological evidence. Preservation evidence has been taken, and preparation for trial is well underway. The work undertaken to date by the current parties has been conducted without reference to the joinder applicants' claim. To allow joinder now would require the parties to consider several new and significant issues within a compressed timeframe. Although the joinder applicants submit that their claim could be accommodated within the existing timetable if joinder were allowed, I consider there to be a strong likelihood of disruption to that timetable and, ultimately, to the timely conduct of the hearing of the separate questions. That outcome would be unfair to the existing parties and contrary to the overarching purpose stated in s 37M of the FCA Act.
84 To be clear, I do not accept the submission advanced by the State that joinder would be impermissible or contrary to the interests of justice in circumstances where the joinder applicants seek, in substance, to defensively assert their native title rights and interests to protect them from erosion, dilution, or discount. As stated above, I do not accept that the principles articulated in Clifton and Blackburn preclude a respondent to a native title determination application from adducing positive evidence of their asserted native title rights and interests in order to negative the applicant's case. As to the State's expressed concerns regarding the lack of finality and the potential for re-litigation that may arise if joinder were allowed, while the concerns are justified it must be recognised that such eventualities inhere in the scheme of the Act, which permits the joinder of respondents who assert competing native title rights and interests. In that regard, I do not accept the State's submission that the prospect of future litigation in respect of the claim area is in any sense in conflict with s 22 of the FCA Act. Section 22 confers power on the Court to grant all remedies to which any party is entitled so that, as far as possible, all matters in controversy between the parties may be completely and finally determined. The section does not confer power on the Court to grant remedies to which a party is not entitled. Further, the section does not require a party to commence a proceeding, or otherwise to agitate claims or seek remedies, that the party chooses not to pursue. A party who chooses not to agitate a claim or seek relief of a particular kind in a proceeding may be prevented by the Court from doing so in subsequent proceedings, but that will occur under general law principles of res judicata, estoppel and abuse of process, not by virtue of s 22 of the FCA Act.
85 For the reasons given above, and for the purposes of s 84(5), I am not satisfied that the joinder applicants have interests in the claim area that may be affected by a determination of native title in this proceeding, or that their joinder is in the interests of justice having regard to the limitations in the evidence adduced, the delay in making the application and the prejudice that would be occasioned to the Marlinyu Ghoorlie applicant if joinder were permitted. Accordingly, the application for joinder will be dismissed.
86 As noted earlier, the joinder applicants have recently become respondents to the Karratjibbin proceeding. Given that I have refused joinder in this proceeding on the basis that I am not satisfied to the requisite standard that the joinder applicants have interests in the claim area that may be affected by a determination of native title in this proceeding, a question arises whether the Court ought to make an order under s 84(8) that the joinder applicants cease to be a party to the Karratjibbin proceeding. In my view, the parties to the Karratjibbin proceeding (including Ms Sharmain Nelson, Mr Reginald Hayden and Mr Michael Hayden) and the parties to this proceeding ought to be afforded an opportunity to make further submissions to the Court on that question, in light of these reasons. I will therefore make directions, in both proceedings, for the filing of further submissions on that question.