Eagles on behalf of the combined Thiin-Mah Warriyangka, Tharrkari and Jiwarli People v State of Western Australia

1. The joinder application of Kulyamba Aboriginal Corporation RNTBC be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BARKER J: 1 Kulyamba Aboriginal Corporation RNTBC applies to be joined as a respondent party in this native title claimant application proceeding. 2 Kulyamba is the registered native title body corporate (RNTBC) for the Thudgari People and the area as determined in Thudgari People v State of Western Australia [2009] FCA 1334. 3 The present claimant application, over an adjacent but different area, was lodged on 7 October 2016 and subsequently registered on 21 October 2016. The notification period under the Native Title Act 1993 (Cth) (NTA) ended on 13 March 2017. 4 Kulyamba says that the claim group description differs from the description of the native title holders in the Thudgari determination only in the following respects: The Thudgari determination has a chapeau which refers to the Thudgari people. References to "Thudgari" in the Thudgari determination have been replaced throughout with the phrase "the TMWTJ groups" (a reference to Thiin-Mah Warriyangka, Tharrkari and Jiwarli (TMWTJ)). Whilst in the Thudgari determination the reference to the TMWTJ language groups is in the past tense, "belonged", those language groups are referenced in the present tense, "belong", in the current application. 5 Kulyamba says that the reasons for the differences are not immediately apparent from the registration test decision and no explanation is provided by the applicant, save for an oblique reference in the affidavit of Mr Marcus Benjamin Fort made 22 March 2018 and filed by the applicant in opposition to the joinder application, to a principle of "right people speaking for right country". 6 Kulyamba now seeks to be joined under s 84(5) of the NTA to be heard in relation to: the appropriate description of the persons who are determined to hold native title in the claim area for the purposes of s 225(a) of the NTA; and the appointment of a prescribed body corporate (PBC) under s 56 of the NTA. 7 The applicant opposes the joinder application. 8 Section 84(5) of the NTA provides that: 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. 9 Kulyamba and the applicant have each, in their written submissions, made reference to established authorities that address what interests and other factors need to be satisfied for the Court to make a joinder order. 10 Kulyamba, relying on the affidavit of Mr Wayne Lapthorne made 5 February 2018, says that the factors relevant to its interests which may be affected in this proceeding include the following: (1) The objects of Kulyamba directly relate to the claim area, being an area in which the Wyamba members assert native title rights and interests. (2) The objects directly contemplate Kulyamba being engaged in native title proceedings. (3) The objects directly contemplate Kulyamba acting as the RNTBC in respect of any native title determined to exist in the proceedings. (4) These objects are central to the operations of Kulyamba; acting as the PBC for the Thudgari native title holders is the reason for its existence. Similarly, the nature of the decision to be made in these proceedings is at the centre of its objects. (5) Kulyamba has been recognised by the Federal Court in the Thudgari determination as the entity to hold native title for the Thudgari people and assume certain statutory obligations under the NTA and Native Title (Prescribed Body Corporate) Regulations 1999 (Cth) (PBC Regulations) and has been actively performing those functions since 2009. (6) The objects and activities of Kulyamba would be curtailed by a determination that native title in respect of the native title claim area was to be held by another body corporate thereby preventing it from managing native title rights and interest in respect of the determination area as its objects direct. (7) A determination in terms of the current claim group description is likely to have a similar curtailing effect as, by reason of the differences between the form of the two determinations, Kulyamba may be precluded from acting as the PBC. (8) The operations and activities of Kulyamba in performing its statutory functions in respect of the Thudgari determination may be affected by a determination in terms of the current claim group description and abandons the Thudgari identifier which provides its members with a collective identity (see for example: reg 8(5) of the PBC Regulations). (9) The interests of Kulyamba under its rules and as trustee of native title determined by the Thudgari determination are distinct from and not limited to or solely derivative of its members. (10) By reason of its rules, its fiduciary obligations as trustee of the determined native title in the Thudgari determination and statutory obligations under reg 8(5) of the PBC Regulations, Kulyamba's interests are analogous to those of a native title representative body. (11) To the extent that Kulyamba has interests analogous to its members, such interests are capable of being affected by the determination and have been considered a sufficient interest for the purpose of the rule. (12) If Kulyamba was not joined it is not clear that any other current party to the proceeding has an interest in addressing the issue raised by the claim group description, including whether an estoppel arises by reason of the Thudgari determination. (13) Similarly, Kulyamba would appear to be an appropriate contradictor in circumstances in which a body other than the applicants, known as the TMWTJ working group, is seeking to nominate an alternative PBC at least in part by reason of alleged governance concerns regarding Kulyamba. 11 Kulyamba cites authorities in aid of its reliance on these various factors to the exercise of the joinder power. 12 Kulyamba also says that, importantly, in assessing those factors it is not for the Court to determine whether Kulyamba's assertion of an interest is correct but that it has a prima facie case in relation to the interests asserted - referring to authority including Wakka Wakka People #2 v State of Queensland [2005] FCA 1578 at [6]. 13 Kulyamba submits that where a prospective respondent can point to a clear and legitimate objective that he/she or it hopes to achieve by being joined then it will generally be appropriate for the Court to exercise its discretion in favour of joinder - unless there are some other factors such as delay weighing against such an exercise. It repeats that it seeks to be heard in relation to the appropriate description of the persons who are determined to hold any native title and the appointment of a PBC. 14 It says that the issue of concern raised by the claim group description presently goes to the nature of the society that holds native title and to membership. It says it is a statutory requirement for the Court to appropriately describe the native title holding group which, in the ordinary course, would be supported by a finding as to the society that holds in common the traditional laws and customs under which the native title rights are recognised. 15 Finally, Kulyamba says that, allied with the description of the native title holders is the question of the PBC. It submits that in circumstances in which Yamatji Marlpa Aboriginal Corporation appears to be instructed by a body known as the TMWTJ working group, it may well be desirable for Kulyamba to be heard in relation to the nomination process if and when that occurs. 16 In oral submissions, counsel for Kulyamba suggests issues of estoppel and abuse of process may be raised in relation to the proper identification of the holders of native title. 17 Counsel also submitted that while it did not assert a specific interest in the current claim area, it is possessed of a sufficient interest, by reference to its objects, to be joined. 18 Having regard to the affidavits read by each of the parties I do not consider that Kulyamba should be joined as a respondent. While it might be accepted, as initially stated in Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1; (1997) 148 ALR 46 that while a sufficient interest for the purposes of joinder need not be proprietary or even legal or equitable in nature, it must be genuine, not indirect, remote or lacking in substance and should be affected in a demonstrable way by the determination in the proceedings, I am not satisfied that the interest that Kulyamba claims meets this test. 19 Kulyamba asserts an interest in the terms of a future determination of native title on the basis that it is the PBC managing native title held under the Thudgari determination. 20 It is not claimed that it has any proprietary or other direct interests, native title interests or otherwise, in the claim area the subject of the applicant's claimant application. 21 Rather, Kulyamba is interested to be heard on the terms of any future determination, particularly in relation to how the common law holders might be identified and who should be the PBC under a new determination. On the face of it, as noted above, the claimants in this proceeding are the same as, or at least very similar to, the group in whose favour the Thudgari determination was made. But I do not see how that factor results in any relevant interest being held, for the purposes of joinder under s 84(5), by Kulyamba. 22 While Kulyamba may have a general, specific or strategic interest in who, in due course, will or should be appointed as a PBC in relation to a determination of native title in the current claim area, it has no statutory or other legal powers or responsibilities in relation to the making of that determination. It will be for the determined common law holders, in due course, to make that nomination under s 56(2) of the NTA. While Kulyamba might have the capacity to exercise some influence, or may desire to exercise some influence, over that nomination, in my view that is not a sufficient interest for present purposes. 23 Another basis for assertion of an interest, is that a determination of native title in the current proceeding in favour of the current claim group will have implications for the governance of Kulyamba. 24 In my view, whatever implications may arise, are all in the future and do not identify any relevant interest to support joinder in the claimant proceeding under the NTA. 25 As the applicant says in its submissions, the indications currently are that Kulyamba will not be the PBC for this claim. The TMWTJ working group has resolved that it does not and will not consent to Kulyamba being the PBC for this combined claim. Mr Fort's affidavit states that. 26 This potential conflict as to the responsibilities of Kulyamba as the PBC under the Thudgari determination and those of a future PBC for the purposes of a determination on this claim, does not produce the outcome that Kulyamba thereby has an interest in relation to the current proceeding. Indeed, it is a good reason not to join Kulyamba. The simple fact of the matter is that it is the determined common law holders who will be required to make the nomination of the PBC - not Kulyamba. An existing PBC in relation to another native title determination area does not control that process. A desire to contribute to the decision-making on that issue does not equate to a recognisable interest for joinder purposes. 27 To the extent Kulyamba sees itself as a form of native title representative body (as under the NTA), this function is misconceived. It is the PBC for the Thudgari determination area and nothing more. 28 I note that in a not dissimilar situation, Gilmour J came to a similar conclusion: see Cheinmora v State of Western Australia [2013] FCA 727 at [21]-[22]. 29 In short, I am unable to conclude that the interest that Kulyamba asserts would be affected in a "demonstrable way" by a determination in the form the applicant seeks. 30 Even if I were to be considered wrong in saying there is no relevant interest sufficient to support the joinder of Kulyamba, for the range of reasons I have just canvassed, I do not consider it is in the interests of justice that Kulyamba should be joined where it is the statutory responsibility of the common law holders, when declared - and not that of Kulyamba - to nominate the relevant PBC to hold and manage their native title. To add Kulyamba as a party in effect to contest the exercise of the common law holders' statutory responsibility cannot be considered to be in the public interest in administering the NTA. 31 For those reasons I dismiss the joinder application. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.