Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland

REASONS FOR JUDGMENT 1 As long ago as March 2005, the Gudjala People, by their authorised applicant, applied to this Court under s 13 and s 61 of the Native Title Act 1993 (Cth) (the Act) for a determination of native title rights and interests in respect of land in Queensland more particularly identified in their application. The making of the application was notified as required by s 66 of the Act later that year. 2 The land the subject of the claim is in the vicinity of and particularly to the west-north-west of Charters Towers in North Queensland. 3 In recent years, the Court has in this State adopted the practice of intensive case management and prioritisation of native title cases. I give details of the practice adopted later in these reasons for judgment. This practice, in conjunction with careful attention to the responsibilities of a litigant in this Court by applicants, the State and other active party respondents has, in recent years, seen more native title cases than ever proceed to consent determination. This has amply served the aims and aspirations identified by the Parliament in the preamble to the Act. 4 Native title cases involve a considerable investment of public resources. This investment extends beyond the public funding of the judicial branch of government. Public funds are deployed in the provision of legal aid to applicants. They are also deployed because the State or Territory government responsible for the land concerned is always a respondent party to a native title claim. Local governments with responsibility for land the subject of a claim invariably seek to be joined as a respondent party early in the course of a proceeding. So, too, do various public authorities having a particular interest in and use of land within a claim area. Further, until recently when funding for the scheme was terminated by a decision of the Commonwealth Executive Government, expedition in the consensual resolution of native title cases was also assisted by a publicly funded scheme put in place by the then Executive Government after the decision Wik Peoples v Queensland (1996) 187 CLR 1. Under that now former scheme, legal aid was made available to pastoralists in relation to native title claims and in relation to the negotiation of indigenous land use agreements. The funding thus made available was employed by the pastoral representative body known as Agforce to engage competent legal representation. Repeatedly, to my direct observation in court in respect of the regions of the State for which I have had case management responsibility, the collective representation of pastoral respondents enabled by that scheme greatly facilitated the responsible, consensual resolution of native title claims and removed much of the angst such claims might otherwise have occasioned such respondents. More particularly, while available, that scheme much assisted the efficient progression of the present case. Some collective representation of pastoral respondents still occurs. It is competently undertaken but its efficacy is constrained by more limited resources. 5 The Gudjala People have another native title application before the Court (Gudjala People #2, QUD 147 of 2006), which is being case managed in conjunction with the present matter. 6 So far as case management is concerned, this case and Gudjala People #2 were last before the Court at the regional callover held at Cairns on 24 June 2013. At that time, I dismissed as respondent parties' various respondents who were in default of compliance with earlier directions of the Court. I also reviewed and directed compliance with a work plan submitted by the parties which made comprehensive provision for the undertaking by defined dates of steps directed to the making of a determination of native title by consent. At that time, it was envisaged that such a determination would occur in March 2014. Prior to 24 June 2013 and as a result of steps taken in accordance with earlier case management directions, the State had notified the applicant of its position in relation to the native title rights and interests. Subsequent steps in the work plan undertaken and to be undertaken both by the applicant, the State and other respondents have been cast on the basis of the State's notified position and a related view by the parties that native title rights and interests would be able to be consensually determined. 7 Regard to the work plan discloses that the case is at an advanced stage in its progression towards a consensual determination of native title. Some of the steps concerned require formal ratification by a party for which a lead time must be allowed, be that an authorisation meeting for the applicant, passage through State cabinet and executive council or the council of a local government. 8 The identification in advance of March 2014 as a time for a determination hearing was necessary so as to allow for the completion of such steps, for the Court's summer non-sitting period and for the usual priority given to appellate jurisdiction work in particular months of which February is one. Further, even a consent determination hearing requires considerable advance logistic and administrative planning by the parties in consultation with the Court. The principal reason for this is that, again so as best to serve the aims and aspirations identified by the Parliament in the preamble to the Act, the Court endeavours if at all possible to sit either on or as near as possible to the land the subject of a native title claim when making a determination. 9 Taking all such matters into account, though March 2014 lies some eight months away, when one understands the lead times and other factors which intrude, this is a case which is at an advanced stage of progression towards a consensual determination of native title rights and interests at the earliest possible date. Given other demands on the Court's time, any development which raised an interrogative as to whether the parties to the proceeding would consent to the making of a determination might well require the abandonment of planning for a determination hearing that month and the allocation of time provisionally set aside for that purpose to other cases before the Court. Quite when a determination could then be made would depend on how soon any controversy could be resolved and then upon the impact of other cases before the Court on when an alternative date was available for the making of a determination. 10 The point of this lengthy preamble in respect of native title practice and procedure and its application to the present case is that it provides necessary background context under which an interlocutory application filed on 25 July 2013 by Rodney Lawrence Heading, Josephine Marie Heading (collectively, the Headings) and Peter John Pemble to be joined as respondents to the proceeding falls for consideration. 11 The Headings have a pastoral property, "Toomba". They are joint tenants of a term lease (TL 0/236387 over Lot 1 on Crown Plan DP52). Mr Pemble has a pastoral property, "Myrrlumbing Station". He is the sole lessee of a preferential pastoral holding (PPH 11/3639 over Lot 3639 on Crown Plan PH2248). These interests in land lie within the native title claim area. On the evidence, those interests may be affected by a determination of native title in these proceedings. 12 Joinder of the Headings and Mr Pemble as parties requires the exercise of a discretion conferred by s 84(5) of the Act. That sub-section presently provides: (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. 13 In Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1003 at [12] (Ngadju People) Marshall J observed: "and it is in the interest of justice to do so", was added to s 84(5) of the Act by an amendment effected in 2007. The extra words apply to a proceeding commenced after 2007. However, as Gilmour J acknowledged in Barunga v Western Australia (No 2) [2011] FCA 755 at [163], that phrase adds nothing to what was previously required in a consideration of s 84(5). Further, as Mansfield J said in Far West Coast Native Title Claim v South Australia [2012] FCA 733 at [37]: The power to join a respondent is a discretionary power that requires proper consideration of the individual circumstances of each case. I respectfully agree with this observation. 14 That the Headings and Mr Pemble have interests which may be affected by a determination of native title in these proceedings is a necessary but not sufficient requirement for an exercise of the discretion to join either or each of them as parties. It must also be in the interests of justice so to do. As to this, it is relevant to note that the applicant and the State, who were the only parties who sought to be heard on the interlocutory application, each neither consent to nor oppose joinder. 15 Where the interests of justice lie in relation to the joinder application made by the Headings and Mr Pemble must take into account their particular circumstances. It by no means follows that the each must stand or fall together. Their individual circumstances are not the only considerations relevant to a determination as to whether joinder is in the interests of justice. 16 The interests of the existing parties as they stand as a result of the present position of this case as a result of intensive case management are also a relevant consideration. The joinder applicants are not the only persons who have an interest in finally having resolved a question which has existed since 2005, which is whether native title rights and interests exist in respect of the specified land and, if so, their nature and extent. At the moment, the existing parties are entitled to order and plan their personal and business (including business of government) affairs on the footing that, after more than eight years of uncertainty, the nature and extent of the native title rights and interests in respect of the subject land will finally be determined. Included in the personal is the emotive significance for the members of the Gudjala People of such a determination. Related to that significance and expressed in the preamble to the Act is the public interest in ensuring that the Gudjala People "receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire". 17 It is desirable to detail further how in this State the Court has, by experience, adapted its longstanding general case management procedures so as to serve the interests of justice in native title cases. 18 In Queensland, which is a highly decentralised State and where there are many native title applications and other matters relating to native title concerning many areas of land in all parts of the State (and some beyond, for native title is not and never was a creature of colonial or later State or Territory boundaries), the Court has adopted a system of regional case management. This entails the division of the State into regions and the allocation of a particular judicial officer to the management of the native title cases in that identified region. Regional case management conferences are regularly conducted by the judge concerned in that region, rather than from Brisbane, which is the location of the Court's Queensland District Registry and where the Queensland resident judges are located. 19 The judicial management of cases in this way entails some inconvenience to judges and court staff but experience has shown that this is more than compensated for by the benefits it brings to the administration of justice. First and foremost, insofar as reasonably possible, it localises the delivery of justice. This is always an important consideration in the exercise of original jurisdiction but never more so than in relation to native title cases. It facilitates attendance at callovers by aboriginals and Torres Strait islanders, pastoralists, local government officials and others interested in seeing the progress of a native title case touching upon their interests. Such attendances are a regular feature of regional callovers, even where the party concerned is legally represented. With the greatly appreciated co-operation and assistance of State judicial and registry officers, it has proved possible for such regional callovers to be held in State regional courthouses, thereby giving this Court the benefit of a purpose designed facility and the public an expected, locally well-known venue for the administration of justice. 20 Over time, allocation of regional responsibility to both judges and registrars has led to an accumulation of knowledge and experience in relation to the cases in a particular region. A registrar invariably attends a regional callover, thereby assuring continuity of association with the cases concerned. Thus, another benefit of the approach adopted is an efficient use of the Court's judicial and registry resources. 21 Parties are required to prepare work plans detailing steps and related completion timelines directed to the end of a determination, ideally consensually, as to whether native title exists. Parties are encouraged to formulate such plans co-operatively and with the assistance of the Court's specialist native title registrars. These native title registrars also, as required, undertake mediation in a case. 22 The content and adequacy of work plans are regularly reviewed by a judge at a regional callover. Any differences between parties as to the content of a work plan are either resolved at such callovers or, if the difference is more intractable, a date for an interlocutory hearing in respect of it is fixed and related directions given. Such callovers are usually held every six months. In between regional callovers, the Court's native title registrars monitor progress and liaise with the parties to ensure compliance or identify early any emerging difficulties in relation to such compliance and the reasons for that. 23 Provision for the negotiation and conclusion between parties of indigenous land use agreements is often and in this case has been integrated into a work plan. That is not because the conclusion of an indigenous land use agreement is in any way a condition precedent to the making of a determination of native title. It is not. Further, a person need not be a party to a native title application in the Court to conclude and thereby have the benefit of an indigenous land use agreement under the Act. Nonetheless, it is often convenient for discussion directed to the conclusion of such an agreement with an applicant by a particular respondent party to occur in parallel with the progression of a native title case to judicial determination by consent or otherwise. 24 In short, by 25 July 2013, a considerable investment of public resources as well as those of otherwise funded active party respondents had occurred to progress the present case, via the case management scheme detailed, to the end of the proposed making of a consent determination in March 2014. 25 The Headings and Mr Pemble also have an interest in knowing the existence and nature of native title rights in respect of, materially, their land.. A determination in March 2014 will inform them of that, irrespective of whether or not they are parties. They have manifested an intention to become a party and thereby be heard on the subject of what those native title rights and interests may be at what is, when the governing practice and procedure as applicable to this case is understood, at a very late stage of proceedings. They are neighbours of Mr Allingham who is a respondent party (the 8th respondent) to the proceeding. The same solicitors who act for Mr Allingham act for them. 26 The Headings predominantly use their property, "Toomba" for cattle grazing - breeding and fattening. They also conduct a stock horse stud on the property. They breed and sell stock horses. Stock horses have been bred at "Toomba" since 1904 with the result that the stud is well known. Yet further, and in succession to a bow hunting guided tour venture which the previous owners of "Toomba" operated for some 18 years, the Headings are contemplating operating an eco-tourism business on their property. Arising from each of these uses, existing and proposed of the property, they have, undoubtedly, an interest in harmonisation of such uses with whatever rights of access may be determined in relation to the native title rights and interests claimed in this proceeding. It is to just such an end that an indigenous land use agreement may be exercised. 27 The Headings purchased "Toomba" from the previous owners, the Brasingthwaightes in mid-2012. The Brasingthwaightes were once respondent parties to this proceeding. They became respondents in January 2006 following the notification of the making of the application. The Headings discovered the existence of a native title claim affecting the property in 2012 as a result of a due diligence investigation which was conducted on their behalf prior to their purchase of "Toomba". At the time, as Mr Heading frankly deposes in his affidavit, he "did not know much" about the native title claim, except that it had been on foot for a long time. He also opines in his affidavit to a belief at that time that, "not much had happened" and that he would be notified if something did. I do not doubt the honesty of Mr Heading's beliefs. Those beliefs could not have been more mistaken. As it happened, as a result of the application of case management practice and attention to resultant obligations by the parties, the proceeding reached a particularly critical point in 2012 when the State notified its position in relation to connection to the applicant and the other parties. The State's position did not, of course, bind other respondents but it is the experience of this jurisdiction that its position is always highly influential. On and from that time, the case became one which was highly likely to proceed to a consent determination. The case was managed accordingly. Because they were not a party, neither the Court, the applicant nor any other party had any obligation to inform the Headings of this development. 28 Some two months after purchasing "Toomba" and in the course of a conversation with one of its previous owners, Mr Ernest Brasingthwaighte, the latter remarked to Mr Heading of the native title proceeding, "at least we are respondents [to the claim]". Mr Heading took this to mean that, as the new owners of "Toomba", he and his wife had become respondents to the claim. In this, he was mistaken. In order to become respondents, it would then have been, as it is now, necessary for them to apply to the Court under s 84(5) to be joined as respondent parties. In circumstances where the previous owners had long been respondents and had disposed of the property it is difficult to see how a timely joinder application by a successor in ownership could have been refused. That did not happen. In the course of the year or so which has passed since then much work has been done by the existing parties to progress the case towards a determination by consent. 29 For the Headings, there matters rested until May this year when they received a notification from Agforce that they were not respondents to this proceeding. This prompted Mr Heading to make informal inquiries concerning the proceeding with the North Queensland Land Council, which acts for the applicant, with the chair of the native title claim group and with Mr Boge of Thynne and McCartney. As I am well aware as a result of regional native title list management responsibilities, that firm had a long standing retainer from Agforce, funded by the Commonwealth until recently as described, to act for pastoral respondents in native title matters. That firm continues to provide such representation under replacement arrangements put in place by Agforce but its ability so to do is now much curtailed by funding limitations. 30 These discussions led Mr Heading to the view that he and his wife needed to become respondents because their interests could potentially be affected if they were not. He became aware, via discussion with his neighbouring property owner, Mr Allingham, that Hopgood Ganim were acting for him in the proceeding. As a result, he and his wife came to give instructions to that firm to make the joinder application. 31 I accept that, once they became aware that they were not parties, the Headings moved with reasonable diligence to make their application. In so doing, I particularly take into account that they live in a remote part of Queensland. Even in times when access to telephonic and internet communication has become available in much of the Australian outback, the tyranny of distance still introduces lags not encountered by urban dwelling Australians in fully accessing legal professional services and in the turn around of documents and seeking and obtaining of instructions and advice. Mr Heading states in his affidavit that his and his wife's interests will be adversely affected if not made a party "because I will not have any recourse in respect of, for example, access protocols and public liability". These are matters which can be the subject of an indigenous land use agreement. What Mr Heading does not state in his affidavit is whether and to what extent, if any, and on what basis he disputes the existence of the native title rights and interests claimed by the applicant. 32 Mr Pemble's affidavit supplies a reminder both of the availability of communications technology and the tyranny of distance to which I have referred. As at the time the joinder application was heard a copy of that affidavit was available only in facsimile form. The original was still making its way back by mail from outback North Queensland. Mr Pemble operates "Myrrlumbing Station" as a cattle grazing property. In that he is assisted by his wife and son and the latter's fiancée. They are all resident on that property, which is located some 50 km west of Charters Towers. He deposes in respect of that property and the cattle grazing business conducted on it that, "access … by the native title claimants would need to be managed and potentially restricted by agreement to ensure my business is not adversely affected". This concern is readily understandable but it is a concern able to be addressed by the negotiation of an indigenous land use agreement. 33 Mr Pemble came to take up ownership of Myrrlumbing in late 2004 as a sequel to the dissolution of a family partnership. Mr Pemble deposes that the taking over of the property consumed much of his time such that it was not until 2006 that he took over correspondence and other administrative aspects of the running of the property. In the interval those aspects were handled by another person. To his credit, he frankly acknowledges (and exhibits a copy of) a notification letter dated 1 December 2005 addressed to him at Myrrlumbing by the National Native Title Tribunal in respect of the making of the present native title application. The copy concerned was obtained by his solicitors. He states that he cannot recall ever seeing its original. Apart from his reference to another person handling correspondence and administrative matters at the time, Mr Pemble also mentions that, during the wet season (inferentially, a reference to a period including December and January) mail deliveries are often not received at Myrrlumbing because of flooding. Whether or not this seasonal phenomenon impacted upon the delivery of the notification letter of 1 December 2005 is speculative. I am not satisfied that Mr Pemble has proved that the notification letter was not delivered in the ordinary course of the post so as to rebut presumptions as to service found in s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 and s 163 of the Evidence Act 1995 (Cth). 34 Mr Pemble deposes that it was not until May this year when he saw an advertisement in "The Northern Miner" of 24 May 2013 that he became aware of the existence of a native title claim concerning Myrrlumbing. This prompted him to make inquiries with Agforce, Thynne and McCartney, the State Department of Lands and his neighbour, Mr Allingham. As a sequel to his discussions with the latter he came to retain Hopgood Ganim. Like Mr Heading, Mr Pemble does not state in his affidavit whether and to what extent, if any, and on what basis he disputes the existence of the native title rights and interests claimed by the applicant. Neither he nor Mr Heading pointed in their affidavit to the existence of any body of evidence on the strength of which they believed that they may have a basis for contesting the native title rights and interests claimed. 35 It does not follow that because there has been delay by the joinder applicants, in Mr Pemble's case gross delay, in seeking to be joined as parties that delay per se precludes joinder. 36 On the hearing of the joinder application, the Headings and Mr Pemble by their solicitors frankly disclosed that, while each would be prepared to concede claimed native title rights and interests for the purposes of negotiations in relation to an indigenous land use agreement, that concession would be without prejudice to a reservation of an ability to contest the same were they to be made parties to the proceeding. It was submitted on their behalf that it was in the interests of justice for them to be joined because this would enable them to access the applicant's connection material and thereby better understand, for the purposes of indigenous land use agreement negotiations, the nature of the native title rights and interests claimed. Their representative very properly acknowledged that, though such material was available to his firm insofar as it acted for Mr Allingham, it was not possible to disclose the same to the Headings or Mr Pemble because it was attended with restrictions akin to the implied undertaking governing the use of documents obtained in discovery. 37 The practice and procedure which attends native title proceedings is not excluded from the overarching purpose specified in s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act): Velickovic v State of Western Australia [2012] FCA 782 at [23]; Ngadju People at [17]. 38 It is as well to set out that section: 37M The overarching purpose of civil practice and procedure provisions (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. (3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose. (4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings: (a) the Rules of Court made under this Act; (b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court. [emphasis in original] Case management directions and a work plan incorporated by reference in such directions are "civil practice and procedure provisions" in terms of s 37M(4). Were there any doubt about this, and I do see any, that is put to rest by s 37P, which expressly authorises the Court or a judge to give directions about practice and procedure. 39 Neither are parties to such a proceeding immune from an obligation under s 37N to act consistently with that overarching purpose both in the conduct of the litigation or in related settlement negotiations. 40 What is found in s 37M(2) of the Federal Court of Australia Act may well have been, by the time of the enactment of that position in 2009, declaratory of a position reached in any event in relation to the conduct of civil litigation: see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [24] per French CJ (Aon). In any event, a provision such as s 37M and its corollary, s 37N is, as Gummow, Hayne, Crenan, Kiefel and Bell JJ record in their joint judgment in Aon at [97], "likely to have been written with the decision in [Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 - JL Holdings] in mind". These provisions put to rest any suggestion, derived from JL Holdings, that the considerations set out in s 37M(2) are not relevant or at least not capable of being of decisive weight in decisions touching upon practice and procedure in a particular case. 41 On analysis, neither the Headings nor Mr Pemble seek to be joined as a party so as to vindicate any legal right. Neither avows any positive case about the non-existence of native title rights or interests in, materially, their land as claimed in the application and so as to have the use of their respective properties free of the exercise of any such asserted right or interest or at least not subject to the nature and extent of the rights and interests asserted by the applicant in the application. Instead, the possibility that native title as claimed might be contested, or the applicant at least put to proof, if they are joined, is to be left hanging, inferentially as a consideration to be taken into account by the applicant in the context of any negotiations with the applicant in relation to an indigenous land use agreement. 42 In Brown v South Australia (2010) 189 FCR 540 Mansfield J observed at [38] that, "[i]f there is no bona fide dispute about issues concerning a proposed consent determination, it would be a breach of any obligation to negotiate in good faith to use the carrot of consent to the determination as leverage to secure on other matters such as such as a sustainable benefits term." That observation was made in respect of the obligation of an existing party to a native title proceeding. It is but a particular manifestation in the context of a native title proceeding of a principle of wider application, which is that it is not a proper purpose to bring or defend a proceeding to obtain a compromise of a claim: Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 at 150-151. It must necessarily follow that it is not a proper purpose to seek to be joined as a party to a proceeding for such a purpose. 43 For the purposes of negotiating an indigenous land use agreement the joinder applicants do not need to access the connection materials. The nature of the native title rights and interests which the applicants seek to have determined are specified in the application. That is a public document. 44 The joinder applicants pointed to a statement made by Gyles J, (Sundberg J agreeing), in Gamogab v Akiba (2007) 159 FCR 578 at [59] (Gamogab v Akiba): [The] appellant could have been joined as of right if he had applied in time. That would indicate that the principal issue which arises under s 84(5), assuming the threshold as to affectation of interests is reached, is to assess the prejudice occasioned to the other parties and the court by the delay in applying to be joined. It would be odd in this day and age if delay in applying, in itself, were to radically prejudice a potential party. That view is consistent with the "in rem" nature of the proceeding (see s 225) - underlined by the statement which must be included in the notice pursuant to s 66(10)(b) … There are, with respect, a number of things to be said about this statement. First and foremost, it antedates both Aon and the amendments made to the Federal Court of Australia Act in 2009 to which I have referred. Secondly and in any event, as Gyles J noted in Gamogab v Akiba at [61], there was no finding of prejudice made in that case. That is not this case. The application of the joinder applicants is to add to a proceeding at a very advanced stage of progression towards consensual determination parties whose deliberate, reserved, formal stance is that of contradictor, a stance reserved without any hint of material upon which it might be based and solely, it seems, to enjoy leverage in negotiations in respect of an indigenous land use agreement. Everything I now know as a result of experience in the case management of native title cases in the regions for which I have responsibility and this case in particular tells me that joinder of parties so disposed is fraught with the prospect of an unravelling of the existing, programmed progression of the case to consent determination. 45 Whether or not negotiations for the latter could be concluded prior to the authorisation meeting of the applicant programmed in to the work plan is a very moot point indeed. It is at that meeting that all matters touching upon the formal approval by the applicant of the consensual determination of native title are to be considered. The convening of an authorisation meeting is a considerable and costly step. 46 It is obviously desirable that all persons whose interests may be affected by a native title claim be parties to an application. It is the whole point of the notification regime in s 66 to afford such parties an opportunity to seek to be joined. It is not the case that all such persons must avail themselves of that opportunity before a native title application may progress to determination, be it consensually or otherwise. Though there is a time limit for becoming a party after notification under s 66, later applications for joinder may be entertained and parties joined in the exercise, materially, of the discretion conferred under s 84(5). The Court must additionally be satisfied that joinder is in the interests of justice. That there are "in rem" qualities in respect of land to a native title determination is certainly relevant but does not dictate that a person who seeks to be joined at a late stage in a proceeding must be joined. 47 All of what the joinder applicants seek to achieve can be achieved an indigenous land use agreement. For the reasons given, I am not satisfied that the discretion conferred by s 84(5) of the Act should be exercised so as to permit them to be joined as parties. Their application for joinder is dismissed. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.