(b) Resolution
54 For the following reasons, while I find that it is arguable that Ms Harkin and Mr Wells have a prima facie "interest" that may be affected by the determination of native title in the Nangaanya-ku Claim, it is not in the interests of justice for them to be joined as respondents to the Nangaanya-ku Claim.
55 Ms Harkin's and Mr Wells' primary objective in becoming a party to the proceeding is to contest the membership of the Nangaanya-ku native title claim group and prevent the making of a determination in favour of some people whom they contend are not entitled under traditional laws and customs to hold native title rights and interests in the claim area. Furthermore, Ms Harkin and Mr Wells seek to prevent their respective apical ancestors being used in support of the Nangaanya-ku Claim. It is well accepted, based on authorities such as Kokatha and Bonner, that seeking defensively to assert claimed native title rights and interests, and protecting them from erosion, dilution or discount, is an "interest" which may be affected by a determination of native title for the purposes of s 84(5) of the NT Act.
56 However, given the general nature of the concerns expressed by Ms Harkin and Mr Wells and the procedural history of the Nanatadjarra Proceedings, as well as the current status of the Nangaanya-ku Claim, it would not be in the interests of justice to join Ms Harkin and Mr Wells as respondents. It is unnecessary, and I do not seek to determine, contested questions of fact between the parties as to Ms Harkin's and Mr Wells' contentions concerning their opposition to the authorisation of the Nangaanya-ku Applicant and Mr Wells' consent to the bringing of the Dismissal Application.
57 My reasons for finding that it is not in the interests of justice to join either Ms Harkin or Mr Wills as respondents are as follows.
58 First (and foremost), with specific reference to the stated concerns held by both Ms Harkin and Mr Wells regarding the composition of the Nangaanya-ku native title claim group, while I acknowledge that there are some authorities which have viewed such a concern or interest as sufficient to warrant joinder, I do not view those authorities as saying that such a concern must result in joinder. The interests of justice remain relevant. In weighing the interests of justice in the particular circumstances of this matter I consider that heavy weight must be given to the sweeping generality and lack of particularisation in the evidence of both Ms Harkin and Mr Wells regarding their concerns as to the composition of the claim group. I accept the Nangaanya-ku Applicant's submission that it is notable that neither Ms Harkin nor Mr Wells identify the other apicals who are the subject of their stated concerns, nor has either provided any evidence to establish even a prima facie case for challenging the legitimacy of the use of those other apicals. These stark deficiencies in their evidence is to be contrasted with the State's apparent acceptance of all elements of the Nangaanya-ku Claim, such that a timetable has now been agreed which contemplates the provision of a draft consent determination in the very near future, namely 24 May 2021.
59 Secondly, as found in Harkin (No 2), the Nanatadjarra Proceedings suffered from the fatal difficulty that the claim was a "subgroup" of the persons who hold native title rights and interests in the claim area. Indeed, some of the persons identified in Harkin (No 2) as claiming to hold native title rights and interests in the claim area who were not included in Nanatadjarra Proceedings are now applicants of the Nangaanya-ku Claim (eg. Ms Marilyn Burton and Mr Elvis Stokes). As submitted by the State, in those circumstances it is not in the interests of justice to join Ms Harkin and Mr Wells as respondents for the sole purpose of agitating issues concerning claim group membership and use of apicals, which is their asserted interest in the Nangaanya-ku Claim. This is particularly so in circumstances where Mr Wells was named as an applicant in the Nangaanya-ku Claim (before his decision to voluntarily resign) and Ms Harkin remains a member of the Nangaanya-ku native title claim group.
60 Thirdly, the concerns expressed by Ms Harkin and Mr Wells as to how the Nangaanya-ku Claim is being conducted, including their desire to give evidence in relation to that claim and their disaffection with aspects of it can appropriately be described as involving intra-mural matters and is not a proper basis for joining them as respondents to this proceeding: Alvoen on behalf of the Wakaman People #3 v State of Queensland [2019] FCA 1469 at [28(g)] and Bell at [45] per Rangiah J. I do not accept that this is one of the "rare" circumstances in which "dissentient members" of a native title claim group should be joined as a respondent (Starkey at [61] per Mansfield J).
61 Finally, I accept the opposing parties' submissions that there is a real possibility that joining Ms Harkin and Mr Wells will cause delay and further expense in the progress of the claim, and could frustrate ongoing and advanced negotiations which may see the claim finalised by a consent determination. The Joint Progress Report filed on 26 March 2021 includes an agreed timetable between the Nangaanya-ku Applicant and the State which contemplates the circulation of a draft minute of Proposed Consent Determination in the week beginning 24 May 2021. As Mr Wright SC, who appeared for the Nangaanya-ku Applicant pointed out, it is not possible to quantify with any precision the delay which might result if Ms Harkin and Mr Wells were joined as respondents. This is because neither of them has sufficiently identified what it is they propose to do regarding their stated concerns if either were made a respondent. It is reasonable, however, to infer that there would be some delay and further resources expended by both the Nangaanya-ku Applicant and the State in responding to whatever steps were taken by Ms Harkin and Mr Wells.
62 For these reasons, I find that even though Ms Harkin and Mr Wells arguably have an interest which may be affected by a determination of native title with respect to the Nangaanya-ku Claim, it is not in the interests of justice to join either of them as a respondent under s 84(5) of the NT Act. Therefore their respective interlocutory applications will be dismissed.
63 As to Mr Fraser, his interest is different from those of Ms Harkin or Mr Wells. Contrary to Mr Fraser's submission, however, I do not find that there is any dispute with his claim that he is a Senior Wati. Mr Baird's affidavit appears to acknowledge Mr Fraser's status as a Senior Wati at [24] and this fact was accepted by the Nangaanya-ku Applicant in its written submissions.
64 Mr Fraser's joinder application is substantially based upon his desire to give evidence concerning a particular area of the Nangaanya-ku claim area with which he has a special responsibility as a Senior Wati. So much may be accepted. As matters stand at present, however, with matters moving towards an imminent consent determination, it is unlikely that there is any need for Mr Fraser to give evidence on that subject. As noted above, the present evidence indicates that the State accepts that the Nangaanya-ku Applicant holds native title rights and interests in the claim area, including the particular part for which Mr Fraser has responsibility. If matters should subsequently change and the occasion arises where evidence needs to be given in respect of that particular area, assuming that no other person is qualified to give that evidence, it would be open to Mr Fraser to make a fresh application to be joined as a respondent, assuming that the Nangaanya-ku Applicant was not itself willing to call Mr Fraser as a witness in those circumstances.
65 For these reasons, I consider that Mr Fraser's application for joinder should also be dismissed.
66 As I have emphasised, as a general proposition I do not see much utility in approaching the application of s 84(5) in any particular case by reference to similarities with other cases. Each case necessarily turns on its own particular facts and circumstances. As Mansfield J said in Starkey at [25], no "hard and fast rules can be laid down" in this area. For completeness, however, I shall briefly explain why the cases relied upon by the Joinder Applicants are distinguishable.
67 Malone: The persons in this case sought joinder on the basis that their apicals were originally part of the claim group, but were subsequently excluded by an amendment to the claim group description. That differs from the circumstances here, in which both Ms Harkin and Mr Wells remain claim group members in the Nangaanya-ku Claim through their respective apicals.
68 Bonner: What Mansfield J said at [17], as relied upon by the Joinder Applicants, is not controversial, but the distinguishing feature here is that Ms Harkin and Mr Wells are both claim group members.
69 Kokatha: The discussion of joinder in this case was premised on the fact that the individuals in question had competing claims to native title. None of the Joinder Applicants here has, or asserts, a competing native title claim. Indeed, both Ms Harkin and Mr Wells are claim group members. As noted above, the competing Nanatadjarra Proceedings were summarily dismissed.
70 Rubibi: As Merkel J made clear at [23], joinder was seen to be appropriate in that case because the Walman Yawuru claimants brought a competing communal native title claim in respect of part of the area the subject of competing s 61 applications by the Rubibi and Leregon claimants. It was unnecessary for the Court to determine there whether joinder was also appropriate on the basis that the Walman Yawuru claimants also disputed the genealogy prepared by the Rubibi claimants (see at [5]).
71 Bell: Justice Rangiah said at [45] that joinder is "more readily permitted where a claim group disputes the composition of the claim group". That is not to say, however, that joinder will always be granted in such a case. Mr Stewart's joinder occurred where there was ambiguity in the claim group description and real doubt as to whether Mr Stewart was included in the claim group (see at [39]). That is far removed from the circumstances here.
72 Croft: Mr Fraser relied upon this decision of Charlesworth J who joined Mr Starkey (a Senior lawman or Wati) on the basis that he wanted to discharge his custodial responsibilities as a Kokatha Wati in relation to significant sites within the claim area the subject of a s 61 application by the Barngarla and Nakunu Peoples. The distinguishing feature, as Charlesworth J made clear at [121], was that Mr Stewart's joinder was seen to be necessary to protect his interest in accessing sites within the claim area in circumstances where a determination of native title in exclusive terms would have jeopardised that access. That is far removed from the circumstances here.
73 TR: The summary dismissal of the Nanatadjarra Proceedings distinguishes the present proceeding from TR (deceased) on behalf of the Kariyarra-Pipingarra People v State of Western Australia [2016] FCA 1158. In TR, North ACJ refused to remove Indigenous respondents, who were members of the native title claim group, on the basis that they had an interest in challenging "group membership" and had "asserted their claimed rights and interests from the inception of the proceedings and [had] maintained the position in opposing" the native title determination application (at [50]). However, in that case, the Indigenous respondents had "not made their own competing application and [had] mounted an exclusively negative case" (at [49]). Here, Ms Harkin and Mr Wells were both part of a competing native title claim in the Nanatadjarra Proceedings, and that claim was summarily dismissed. As Ms Harkin and Mr Wells both accept, the "negative case" they now seek to run as would-be respondents only arose after their "interests" were no longer being protected by the Nanatadjarra Proceedings.