Forrest on behalf of the Nangaanya-ku Native Title Claim Group v State of Western Australia

Joinder applications 6 It is convenient to address the joinder applications by Ms Harkin and Mr Wells together first, given their previous involvement as in the Nanatadjarra Proceedings, before turning to the joinder application by Mr Fraser.

(a) Background matters 7 On 7 July 2017, Ms Harkin and others on behalf Nanatadjarra People filed a s 61 native title application (the Nanatadjarra Proceedings), in which Mr Wells was a member of the native title claim group. 8 The s 61 native title application in the current proceeding (WAD460/2018) was filed on 9 October 2018. The Nangaanya-ku Claim area was totally overlapped by the claim area in the Nanatadjarra Proceedings. 9 On 9 December 2019, the Nangaanya-ku Applicant filed an interlocutory application seeking to be joined as a respondent to the Nanatadjarra Proceedings under s 84(5) of the NT Act. On 17 July 2020, I upheld that application in order "to protect against the potential erosion of the native title rights which are asserted by the Nangaanya-ku People in their own s 61 application, where there is an overlap in the relevant area with the rival application": Harkin on behalf of the Nanatadjarra People v State of Western Australia [2020] FCA 1015 at [21] (Harkin (No 1)). 10 On 20 October 2020, the Nangaanya-ku Applicant filed an interlocutory application seeking summary dismissal of the Nanatadjarra Proceedings under s 31A(2) of the FCA Act or alternatively that the native title determination application be struck out under s 84C(1) of the NT Act (Dismissal Application), on the basis that the Nanatadjarra Applicant had no reasonable prospects of establishing that the native title claim was properly authorised within the meaning of ss 61(1) and 251B of the NT Act. On 18 January 2021, the application for summary dismissal was upheld for reasons which are set out in Harkin (No 2) at [25]: … (a) the Nanatadjarra applicant has not discharged its evidentiary onus in this summary dismissal proceeding of proving, on the balance of probabilities, that its decision-making process is traditional or that the claim has been authorised by the whole "native title claim group", being all the persons who hold native title rights in the application area; and/or (b) on the basis of the available evidence, the Nangaanya-ku applicant has established that there are no reasonable prospects of the Nanatadjarra applicant establishing that there are no persons who hold native title rights and interests in the application area beyond those who are included in the current claim group as described in the Nanatadjarra claim. 11 The reasoning at [25(b)] is relevant to the present joinder applications, as it refers to what may be described as the "subgroup problem". This refers to the fact that evidence in the Nanatadjarra Proceedings revealed that there were persons who hold native title rights and interests in the Nanatadjarra claim area who had not been included in the Nanatadjarra claim group description (at [38]). 12 As will be discussed below, this has some ramifications for the orders now sought by Ms Harkin and Mr Wells' to be joined as respondents to this proceeding.

(b) The evidence of Ms Harkin and Mr Wells summarised 13 In support of their respective applications for joinder, Ms Harkin and Mr Wells filed affidavits affirmed on 25 February 2021 and 25 March 2021 respectively. An affidavit of Ms Abigail Braid affirmed on 19 April 2021, the Joinder Applicants' solicitor, was also filed in support of the joinder applications. It annexed two reports of Dr Joseph Rickson, an anthropologist engaged by ESJ Law in the Nanatadjarra Proceedings to provide independent anthropological evidence dealing with connection in the claim area.

Ms Harkin's affidavit 14 Ms Harkin set out some of the history and background of the Nanatadjarra and Nangaanya-ku claims and the dispute that arose over the claim area. Ms Harkin said that, on or about 11 May 2018, she attended an information session at the Railway Hotel, Kalgoorlie hosted by Central Desert Native Title Services (CDNTS). At that meeting, a dispute arose concerning apical ancestors, the details of which are contained in another affidavit by Ms Harkin affirmed on 24 October 2018. The dispute related to "a number of issues with respect to the failure of the Applicants in the Nangaanya-ku Claim to obtain consent from, and involvement of, the descendants of the Apical Ancestors who are relied upon in the Nangaanya-ku Claim". It is notable that Ms Harkin did not identify the other apicals (apart from her own) whom she said should not have been used for the purposes of the Nangaanya-ku Claim. Nor did she provide any evidentiary basis for her allegations relating to the inclusion of those other apicals and their descendants. 15 With respect to her interests in the Nangaanya-ku Claim, Ms Harkin said that: (a) she is a well-recognised and respected elder of the Nanatadjarra People; (b) she was a member of the Nanatadjarra native title claim group; (c) the Nangaanya-ku claim area overlapped the Nanatadjarra claim area; (d) she was the senior women of her Country and therefore had the authority to speak about women's business under traditional laws and customs for the Nangaanya-ku claim area; (e) she is the oldest descendant of Kulputjanu/Alec Bilson, who is a named apical in the Nangaanya-ku Claim. Ms Harkin said that she asked that Kulputjanu/Alec Bilson be removed from the list of apicals prior to the authorisation process on 21 September 2018 at the Railway Motel, which she attended. Ms Harkin claims that "no authorisation from the descendants of Kulputjanu/Alec Bilson" was given for their inclusion in the Nangaanya-ku Claim; (f) she has rights and interests in the Nangaanya-ku Claim as a descendant of the apical Kulputjanu/Alec Bilson; and (g) notwithstanding the Nanatadjarra Proceedings was recently dismissed in this Court, she is still an elder who has the authority to speak for her Country, her Country being the Country that is contained with the Nangaanya-ku claim area. 16 With respect to the interests of justice, Ms Harkin drew attention to the following matters: (a) she was self-represented until 12 June 2020, when she formally engaged ESJ Law; (b) she previously believed that she was ineligible to join the Nangaanya-ku Claim and instead attempted to assert her rights and interests by way of case management hearings; (c) she believed that her native title rights and interests were previously protected by the Nanatadjarra Proceedings (up until that claim was dismissed on 18 January 2021); and (d) she believes that it is crucial that she joins the Nangaanya-ku Claim as a respondent to ensure the correct evidence with respect to her Country and apical is before the Court. 17 It is notable that Ms Harkin's affidavit did not provide any particulars relating to her concerns about the composition of the Nangaanya-ku native title claim group. 18 Ms Harkin was not required for cross-examination. I do not doubt the sincerity of her claims and concerns but that does not mean that she ought to be joined as a respondent.

Mr Wells' affidavit 19 Mr Wells said that he resigned as a member of the Nangaanya-ku native title claim group on or about 6 November 2020 because of "the processes, practice, and lack of due diligence" by CDNTS. Mr Wells claimed that CDNTS: (a) "allowed multiple individuals and families claim Country they do not come from" (emphasis in original), and that the process of registration for the Nangaanya-ku Claim "were completely wrong and did not follow our traditional laws and customers in any way"; and (b) did not make him aware of the Dismissal Application and listed his name and purportedly signed that application on his behalf without instructions. 20 With respect to his interests in the Nangaanya-ku Claim, Mr Wells made the following claims: (a) he was previously listed as an applicant in the Nangaanya-ku Claim through his apical ancestors Kitty Wells and Raymond Devil Wells, and claims he is the only member of the Nangaanya-ku native title claim group who had a right to claim descendancy from Kitty Wells. Mr Wells states that he is "very angry and upset" that these two apicals are listed in the Nangaanya-ku Claim; (b) he was a member of the Nanatadjarra native title claim group through his ancestor Kitty Wells; (c) he believed that that his native title rights and interests were previously protected when he became a part of the Nanatadjarra Proceedings; (d) he is seeking to join the Nangaanya-ku Claim as a respondent to ensure that his rights and interests with respect to his apicals are protected; and (e) because no-one else in the Nangaanya-ku native title claim group is a descendant of Kitty Wells, he claims that he must be joined as a respondent to the Nangaanya-ku Claim to assert his rights with respect to his apical (given that his rights with respect to Kitty Wells are no longer protected by the Nanatadjarra Proceedings). 21 With respect to the interests of justice, Mr Wells raised the following matters: (a) until the recent dismissal of the Nanatadjarra Proceedings, he was asserting his native title rights and interests through that claim; (b) despite the dismissal of the Nanatadjarra Proceedings, he has not forgone his rights as a traditional owner to assert his native title rights and interests before the Court; (c) it would be in the interests of justice for him to be joined as a respondent to the Nangaanya-ku Claim so that he can assert his rights and interests with respect to his apical ancestors, Kitty Wells and Raymond Devil Wells; and (d) it is in the interests of justice for him, as an ancestor of two of the apicals listed on the Nangaanya-ku Claim, to have the opportunity to put his evidence before the Court. 22 As was the case with Ms Harkin's affidavit, it is notable that Mr Wells did not provide any particulars relating to his concerns about the composition of the claim group. 23 Mr Wells was not required for cross-examination. I do not doubt the sincerity of his claims but that does not mean that he would be joined as a respondent.

(c) Ms Harkin's and Mr Wells' submissions summarised 24 The submissions in support of Ms Harkin's and Mr Wells' joinder applications largely repeated the matters raised in their respective affidavits. However, particular emphasis was placed on the following matters. 25 First, Ms Harkin and Mr Wells contend that as descendants of apicals listed in the Nangaanya-ku native title claim group, this alone establishes a "strong prima facie interest" in the Nangaanya-ku Claim, relying upon Reeves J's decision in Malone v State of Queensland [2019] FCA 2115. In Malone, Reeves J allowed three applications for joinder as respondent parties to a s 61 native title application. At [23], Reeves J stated that the fact the joinder applicants in those proceedings had apical ancestors who until three months prior had been within the claim group description provided them with a "a strong prima facie case that they may have native title rights and interests in the claim area". 26 Secondly, Ms Harkin and Mr Wells each submit that their respective apicals should not be used in the Nangaanya-ku Claim without their consent. Ms Harkin and Ms Wells referred to Mansfield J's decision in Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [17] in support of their submission that, just because they cannot obtain a determination of native title in their favour, it does not mean they cannot become respondents "for the quite separate and different purposes of seeking to protect the native title rights and interests they claim to hold from erosion, dilution or discount by the process of the Court". In essence, Ms Harkin and Mr Wells seek "to defensively assert" their claimed native title rights and interests (at [18]). 27 Thirdly, Ms Harkin submits that she wishes to ensure "that the correct evidence is before the Court as to Country, her apical and the traditional laws and customs of the people in the claim area". Similarly, Mr Wells submits that he wishes to assert "that there is a lack of connection for other apicals in the Nangaanya-ku claim area, and that there are people in the Nangaanya-ku application who do not belong to the claim area" (footnotes omitted), and to "ensure [his] Apicals are removed from this Claim". The assertion that such matters give rise to an interest under s 84(5) of the NT Act appear to rely upon Mansfield J's decision in Kokatha Native Title Claim v South Australia [2005] FCA 836; 143 FCR 544 and Merkel J's decision in Rubibi v The State of Western Australia [2002] FCA 876; 120 FCR 512. 28 In Kokatha, Mansfield J considered three interlocutory applications for joinder of respondents who each asserted native title rights and interests over the claim area as individual members of a "competing native title group", but that group had not filed a competing application over the claim area. While noting that joinder of respondents "cannot lead … to a determination of native title rights and interests" in their favour, Mansfield J stated at [24] that it "may however lead to a more informed decision … as to whether the native title rights and interests should be granted as expressed in that application", which might lead to a claim "being less successful than it may otherwise be". In those circumstances, Mansfield J stated that individuals "should not be precluded from putting forward their claim in a defensive attempt to avoid the dilution of those interests". 29 In Rubibi, Merkel J permitted the joinder of three individuals of a native title group claiming to have competing and conflicting rights and interests in part of the area claimed by two applicant groups in separate proceedings, despite those individuals being members of the claimant communities in both proceedings. The following observations were made at [22]-[23]: If a member of the claimant community seeks to be joined for the purpose of merely disputing the manner in which a claim is being contested or some incidental aspect of it, rather than to oppose the claim on substantive grounds or to assert a competing communal native title right and interest which is inconsistent with the substantive native title rights and interests being claimed, then the discretionary issues raised by the Rubibi claimants, including that the proper course is to apply for replacement of the applicants under s 66B, may have some force. However, the Walman Yawuru claimants, as members of the Walman Yawuru clan or family group, are claiming a competing communal native title claim in respect of part of the claim area. Thus, this is not a case where one or more individuals are merely seeking to dispute the manner in which an applicant group is contesting his or her claim or some incidental aspect of it. 30 As to the interests of justice more broadly, the Joinder Applicants submitted that there was no material delay in bringing the applications for joinder, and that the only document filed in the proceeding since the dismissal of the Nanatadjarra Proceedings was the Joint Progress Report filed on 26 March 2021. The Joinder Applicants also note that the proceeding had not been set down for trial, and contend that it is at a "relatively early stage" and that joinder would be unlikely to materially delay the progress of the proceeding or materially prejudice any of the existing parties. 31 Mr Sheahan, who appeared for the Joinder Applicants, said in oral address that the concerns of Ms Harkin and Mr Wells related to the composition of the claim group. They are concerned to avoid any risk of diluting their own native title rights and interests because the claim group was incorrectly composed. Mr Sheahan emphasised the significance of s 225 of the NT Act and the fact that a native title determination would require identification of the persons who hold the relevant native title rights and interests. He referred to Rangiah J's decision in Bell on behalf of the Wakka Wakka People #4 v State of Queensland [2020] FCA 695 as providing authority for joining persons who had concerns regarding the composition of a claim group.

(d) Mr Fraser's evidence and submissions summarised 32 Mr Fraser's two affidavits, sworn on 19 April and 29 April 2021 respectively may be summarised as follows. 33 With respect to his interests in the Nangaanya-ku Claim, Mr Fraser said that: (a) he is a Senior Wati of the Central and Western Desert areas of Western Australia; (b) the Wati are the senior ritual authority holders in the Nangaanya-ku claim area; (c) as a Wati, he has special authority and responsibility in the Nangaanya-ku claim area that is distinct from that of ordinary native title holders; (d) he has rights and interests in the claim area through his status as a Senior Wati; (e) the Wati are the ultimate final decision-makers and they have a special overriding responsibility on all cultural decisions; (f) he had a particular connection with a part of the Nangaanya-ku claim area because of his connection to the big Marlu Dreaming; (g) he claims that he has an interest in the proceedings as a Senior Wati, because the Wati must be involved in native title decisions to ensure those decisions are made in accordance with traditional laws and customs; and (h) in his reply affidavit, Mr Fraser questioned whether Ian Baird was in fact a Wati. With apparent reference to various people identified by Mr Baird as being Spinifex Senior Wati with responsibility for Tjukurpa in the Nangaanya-ku claim area (Fred Grant, Ned Grant, Simon Hogan, Lawrence Pennington, Lennard Walker and Byron Brooks), Mr Fraser said that he knew some of those people but that they are from the Eastern side of Warburton Ranges, which is the Country they are responsible for. He added that "We all share the one Tjukurpa, it is a big story that goes across Country", which connects them all, but that "we each have a different part of the story". 34 With respect to the interests of justice, Mr Fraser raised the following matters: (a) he claims that any determination of native title without Wati being a party to the proceedings would be disrespectful to the traditional laws and customs of Aboriginal People, particular those of the Central and Western Desert areas; (b) he claims that without joinder as a respondent, he will not be able to ensure the Wati's responsibilities and authority is protected; and (c) he claims that any determination without Wati would be incorrect as it would exclude a significant aspect of traditional laws and customs. 35 Mr Fraser was not required for cross-examination. I do not doubt the sincerity of his claims but that does not mean that he would be joined as a respondent. 36 Based on this evidence, Mr Fraser's primary submission is that he holds native title rights and interests in the claim area as a Senior Wati. He contends that it is necessary to join him as a respondent because, with the resignation of Bruce Smith as part of the Nangaanya-ku Applicant, there is no Senior Wati with requisite authority and responsibility to speak for Country from a cultural perspective. Mr Fraser also cited the following decisions which describe the role of the Wati in the Central and Western Desert areas: Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (Port Augusta Proceeding) [2020] FCA 888; Starkey v State of South Australia [2014] FCA 924 and De Rose v State of South Australia [2002] FCA 1342. 37 In oral address, Mr Sheahan acknowledged that Mr Fraser's interest is different from those of either Ms Harkin or Mr Wells. He emphasised that Mr Fraser's interest was that of a Senior Wati who wanted to ensure that he could give evidence on the particular part of the claim area with which he was closely connected. Mr Sheahan also contended that it was significant that Mr Baird did not recognise Mr Fraser as a Senior Wati. He relied upon what Charlesworth J said in Croft at [65], [77] and [86]-[89].

(e) The Nangaanya-ku Applicant's evidence summarised 38 The Nangaanya-ku Applicant relied on an affidavit by Mr Giacomo Kevin Boranga, a solicitor employed by CDNTS, affirmed on 27 April 2021, and an affidavit affirmed on 27 April 2021 by Mr Ian Baird. 39 Mr Boranga said that Ms Harkin attended the authorisation meeting for the Nangaanya-ku Claim on 21 September 2018. Mr Boragana states that at that meeting each of the members of the Nangaanya-ku Applicant swore or affirmed affidavits for the purposes of s 62 of the NT Act deposing that the process of decision-making required under traditional laws and customs had been complied with, and that process involved members of the native title claim group meeting to discuss who should be the applicant and to agree by consensus to appoint such an applicant. Mr Boragana said that he had personally observed the persons present at that meeting, which included Ms Harkin, deciding by consensus that the Nangaanya-ku Applicant was authorised to make the Nangaanya-ku Claim. 40 With respect to Ms Harkin, Mr Boranga deposed that there are other descendants of the apical Kulputjanu/Alec Bilson, including "Gareth Bilson, Alethea Bilson, Josephine Bilson/Brooks, and three children of Daphne Bilson (deceased), named Amanda, Robert and Kassel", which knowledge was based on viewing a genealogy of Kulputjanu/Alec Bilson prepared for the Nangaanya-ku Claim by anthropologists working for CDNTS. 41 With respect to Mr Wells, Mr Boranga deposed that there are other descendants of the apicals Kitty Wells and Raymond Devil Wells, including "Robyn Wells, Fiona Wells, Audrey Wells, Brenda Wells and Charmaine Wells", which knowledge was based on viewing a genealogy of Kitty Wells prepared for the Nangaanya-ku Claim by anthropologists working for CDNTS. Mr Boranga also stated that he was aware that Robyn Wells attended the Nangaanya-ku native title claim group meetings on 16 December 2020 and 18 March 2021, but he was not aware that any other descendants had attended such meetings. 42 Mr Boranga said that Mr Wells was present at a meeting on 24 July 2020, where authorisation was given, by a way of a consensus decision of the claim group, for CDNTS to bring the Dismissal Application in the Nanatadjarra Proceedings. 43 In his affidavit, Mr Baird described his long association with the Spinifex People, which dates back to 1983. Although he is not of Aboriginal descent, he says that he has been initiated under Western Desert laws and customs. As noted above, he described Spinifex Senior Wati as including Fred Grant, Ned Grant, Simon Hogan, Lawrence Pennington, Lennard Walker and Byron Brooks. He said that he had observed Spinifex Wati participate in Nangaanya-ku claim group meetings. He described Mr Fraser as "a middle-aged Ngaanyatjarra wati from the Warburton region". 44 Neither Mr Boranga nor Mr Baird was required for cross-examination. I accept their evidence. It may be noted that although there are some issues of difference between their evidence and that of the Joinder Applicants, it is unnecessary for me to resolve those differences at this stage of the proceeding.

(f) The opposing parties' submissions summarised 45 To avoid unduly adding to the length of these reasons, I will not summarise the submissions of the opposing parties as they are substantially reflected in my reasons below.

Consideration and determination 46 It is convenient first to summarise the relevant statutory provisions and some of the caselaw, before applying the legal principles to the facts and circumstances here.

(a) Relevant legislative provisions and legal principles summarised 47 Section 84(5) of the NT Act provides as follows: Joining parties (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. 48 Rule 34.105(1) and (2) of the Federal Court Rules 2011 (Cth) provide: 34.105 Joinder of parties to main application after relevant period (1) If a person wants to be a party to a main application and the relevant period (within the meaning of rule 34.104) has ended, the person must apply by filing an interlocutory application, in accordance with Form 105. (2) The application must be accompanied by an affidavit stating: (a) how the person's interests may be affected by a determination in the proceeding; and (b) why it is in the interests of justice for the Court to grant the application. 49 It is common ground that the following three elements must be addressed under s 84(5): (a) whether the person seeking to be joined has an interest; (b) whether the interest may be affected by a determination in the proceedings; and (c) whether it is in the interests of justice to join the person as a party, which involves a discretion, which must be exercised judicially. 50 Some of the relevant legal principles were recently summarised in Harkin (No 1) at [10]: (a) There must be at least a prima facie interest on the part of a joinder applicant which warrants a favourable exercise of the discretion under s 84(5). (b) The notion of "interests" for the purposes of s 84(5) is a broad concept, not confined to the statutory understanding of the term "interest" in s 253 of the NT Act. The interests need not be proprietary, legal or equitable in nature; they must arise above an interest that an ordinary member of the public might hold; they must be genuine; they must reflect an effect upon the joinder applicant's interests beyond a mere emotional, conscientious or intellectual interest and they must not lack substance. (c) When viewed in its statutory context, the expression prima facie is taken to mean "at first sight without further investigation". (d) The interest relied upon by a person seeking to be joined as a respondent must be capable of clear definition, be genuine and affected in a "demonstrable way". An interest in a much wider area than the area of the relevant claim may be insufficient to establish a relevant interest in the claim area itself. (e) A person claiming to hold native title rights and interest over an area of land and waters affected by a native title determination application would ordinarily have sufficient an interest to justify being joined as a respondent under s 84(5) of the NT Act. (f) Significantly, in determining whether or not to grant an application for joinder, the Court does not embark on resolving contested questions of fact or seek to determine where the merits lie. Instead, the question is whether having regard to the assertions of fact contained in the application for joinder, the Court can be satisfied that the applicant's interests may be affected in a demonstrable way by a determination of native title. In other words, there must be a factual foundation which demonstrates that a relevant interest is affected. (g) The discretion under s 84(5) is broad and the question whether it should be exercised in favour of a person seeking joinder depends upon the circumstances of each case, including the history of the matter. (h) The discretion to join a party must properly be exercised on a case-by-case basis. Having regard to the terms of s 251B of the NT Act, generally speaking the Court will rarely permit joinder of dissentient members of a native title claim group or permit joinder where, following relevant procedures, the claim group has determined that there is not a sufficient basis for including the joinder applicant in the claim group. Merely because a joinder applicant asserts that he or she has been recognised as a member of a People is a different thing from being a member of the native title claim group, the composition of which must be persons who, according to their traditional laws and customs, hold the communal group rights and interests comprises in a claim. (i) The following particular factors are relevant to the exercise of the Court's discretion under s 84(5): (i) it must be recognised that proceedings under s 61 of the NT Act for a determination of native title are proceeding in rem and bind non-parties. It is fundamental that an order which directly affects a third person's rights or liabilities should not be made unless the person is joined as a party; (ii) consideration of the rights and interests of the party joined would lead to a more accurate definition of the native title rights and interests claims, including by limiting the scope of the rights and interests of an applicant; (iii) the party joined would also be able to protect the native title rights and interests they claim to hold from erosion, dilution or discount by the Court's determination of a s 61 application; (iv) whether the interest asserted can be protected by some other mechanism, such as where the interests could be protected by some other adequate instrument; (v) where the applicant for a determination would be prejudiced if the party applicant is joined; and (vi) the history of the proceedings, including whether there has been unexplained delay by the party seeking to be joined and whether there are well-advanced Court programming orders which would need to be amended to accommodate the proposed joined party, including whether such joinder would jeopardise an imminent trial. 51 I did not understand anyone in the present proceeding to challenge the correctness of this summary even though, somewhat curiously, no one referred to Harkin (No 1) notwithstanding that Ms Harkin was a party to those proceedings and it involved an application for joinder. 52 I do not mean to suggest that Harkin (No 1) provides an exhaustive summary of all relevant legal principles. The principles stated there reflected the particular circumstances of that litigation. 53 As noted above, the Joinder Applicants cited other additional cases in support of their respective positions. In my view there is a danger in approaching the application of s 84(5) in any particular case by reference to whether or not it has some features in common with other cases. It is important to focus upon central principles and their application to individual facts and circumstances, rather than risk becoming lost in a wilderness of single instances.

(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.

Conclusion 74 For these reasons, all three interlocutory applicants will be dismissed. There will be no order as to costs having regard to s 85A(1) of the NT Act and the absence of any application for costs. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Griffiths.

SCHEDULE OF PARTIES WAD 460 of 2018 Respondent MURRIN MURRIN HOLDINGS PTY LTD Respondent SHIRE OF LAVERTON Respondent PIPER PRESTON PTY LTD Respondent GOLD ROAD (NORTH YAMARNA) PTY LTD Respondent GOLD ROAD (GRUYERE) PTY LTD Respondent GLENMURRIN PTY LTD Respondent GOLD ROAD (SOUTH YAMARNA) PTY LTD Respondent INDEPENDENCE GROUP NL