Graham on behalf of the Ngadju People v State of Western Australia

REASONS FOR JUDGMENT 1 There are three interlocutory applications before the Court. Each of them seek to join a particular person as a respondent to this proceeding, pursuant to s 84(5) of the Native Title Act 1993 (Cth) ("the Act"). Section 84(5) of the Act provides: The Federal Court may at any time join any person as a party to the proceedings, if …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. 2 The substantive proceeding in this matter is at a very advanced stage. The parties have filed their final written submissions and are due to address the Court on those submissions on 24 September 2012. The Court heard two tranches of preservation evidence in December 2004 and June 2009. It heard the remaining evidence in May 2012 on the separate question of native title connection in the claim area as defined in the proceeding. 3 At its eastern border, the Ngadju claim area abuts the Mirning claim area. On 16 June 1995, the Mirning people lodged an application for the determination of native title. That application overlapped the Ngadju claim. On 5 October 2000, the Mirning application was amended to remove that part of the application relating to the area within the State of Western Australia. The original applicant was Mr Bunna Lawrie. On 22 November 2001, the Court ordered that the Mirning application be amended to remove Mr Bunna Lawrie as applicant and replace him with Mr Clem Lawrie and Ms Rose Miller. This application was known as the old Mirning claim. 4 In January 2006, Mansfield J ordered that the old Mirning claim and an application known as the Far West claim be conducted as a single application and be known as the Far West claim. The relevant claim area is in the Western and South Australian coastal area. Previously in 1999, the Western Australian and South Australian Mirning groups had decided to authorise two separate Mirning claims, one in each of the two States. 5 The current Western Australian Mirning application was filed in 2001. Many of the claimants in the Ngadju application, such as Mr John Graham, are also claimants on the Western Australian Mirning claim due to intermarriage. 6 The Ngadju and Mirning peoples held a meeting at Ceduna in April 1996 to resolve overlap issues between the original claims. As a result of the meeting, the groups signed an agreement on 12 April 1996. Mr Bunna Lawrie signed on behalf of the Mirning people as the then sole applicant. The agreed demarcation reflects the eastern border of the current Ngadju claim and the western border of the current Mirning claim. At present, there is no overlap between the two claim areas. 7 In April 2012, the descendants of Gordon Charles Naley filed a new application under the Act known as the Naley application. The Naley applicants claim to be Mirning people who are not part of the Western Australian Mirning claim group. The Naley application overlaps the Ngadju, Western Australian Mirning and Far West Coast applications. Justice Mansfield is due to hear an application to strike it out next Monday, 3 September 2012. 8 The first applicant for joinder in this proceeding is Mr Laing. He is the grandson of Gordon Charles Naley. He claims that Mr Naley and his descendants have maintained a physical and spiritual connection to Mirning lands according to traditional laws and customs. Mr Laing claims to have been entrusted with cultural information relating to the land which he claims to be Mirning sites within the Ngadju claim area. He asserts that he has been told by now deceased elders that his country extends into the Ngadju claim area. He also asserts an ability to give evidence, on a male-restricted basis, about cultural activities on Mirning land within the Ngadju claim area. He is not a party to the Western Australian Mirning claim. 9 The second applicant is Mr Bunna Lawrie. He acknowledges the 12 April 1996 agreement with the Ngadju claimants. Nevertheless, he wishes to become a party to the Ngadju native title claim to protect what he alleges is Mirning land and interests claimed by the Ngadju. Mr Lawrie asserts that the agreement acknowledges that land from Point Dover to Point Culver and around Cocklebiddy Cave is Mirning land. That assertion appears to be inconsistent with the terms of the agreement. However, for reasons which will become apparent, it is not necessary to make a conclusive finding about that point. 10 The third applicant is Ms Rose Miller. Like Mr Lawrie, she is a claimant in the Western Australian Mirning claim. She alleges that the Ngadju claim extends to some Mirning land, including from Point Dover to Point Culver and around Cocklebiddy Cave. 11 I have grave doubts, given the history of the demarcation of the border between the Mirning and Ngadju claimants, and a lack of dispute between the Western Australian Mirning people and the Ngadju about whether the interests of any of the interlocutory applicants will be affected by a determination of the Ngadju claim. However, a concluded view on that matter is not necessary. In the exercise of the Court's discretion, the interlocutory applications should not be granted due to the excessive delay in their making. 12 The Court observes that the phrase, "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. 13 The current interlocutory applications have been made far too late. But for brief oral addresses highlighting the more significant aspects of written submissions already filed, I am effectively reserved on the separate question of the issue of connection. Ms Miller has afforded no explanation for her tardiness in making her application. Mr Bunna Lawrie has also offered no explanation for his tardiness. Mr Laing's explanation is that he only became aware of the Ngadju application late last year when the Naley application was being prepared. Even when one errs on the side of generosity and accepts that reason as an explanation for delay, there is no explanation for the delay from late 2011 until this month for the making of the current interlocutory application for joinder. 14 A similar situation confronted Reeves J in Isaacs v Queensland (No 2) [2011] FCA 942. His Honour there considered applications for joinder under s 84(5) of the Act. In that case, the applications were lodged some five months before a tentative trial date was set. Here, the trial has been conducted. But for brief oral addresses highlighting the more significant aspects of filed written submissions, it is effectively complete. 15 In Isaacs, at [34], Reeves J said: …even if I had concluded that the applicants wished to pursue valid personal claims as respondents in these proceedings, I would not have exercised my discretion to join them as respondents given their late application, the absence of any explanation for the delay and the likelihood that their presence as respondents would jeopardise the imminent trial of these proceedings. 16 The presence of the proposed respondents in the current proceeding would have the capacity to severely jeopardise the efficient conduct of the trial. It would require the calling of further evidence in a proceeding where evidence is closed. There is currently a far stronger case for refusal of an application to allow a person to be made a respondent than the one which confronted Reeves J in Isaacs. 17 In addition, the Court must consider the interlocutory applications in the context of s 37M of the Federal Court of Australia Act 1976 (Cth) and the overarching purpose of facilitating the just determination of the proceeding before the Court in the most inexpensive and efficient way possible. Allowing for joinder of the proposed respondents at such a late stage in the proceeding would be inconsistent with that objective. The relevance of s 37M of the Federal Court of Australia Act (Cth) as well as s 37N of that Act to native title proceedings such as this was highlighted by McKerracher J in Velickovic v Western Australia [2012] FCA 782 at [23]. 18 The Court wishes to emphasise that even where there has been a substantial delay in making an application, it may nonetheless be satisfied that a person should be joined as a party to a native title proceeding. This occurred in Chippendale v Queensland [2012] FCA 310. The circumstances of that case demonstrated that, despite substantial delay, it was appropriate for joinder to occur because the applicants for joinder had filed affidavit evidence from proposed claimants and obtained an extensive report from a senior anthropologist. By contrast, in the current case, the applicants for joinder merely rely on skeletal affidavits demonstrating their purported interest in the proceeding. In accordance with the above reasons, each interlocutory application before the Court is dismissed and the Court so orders. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.