Landers v State of South Australia

REASONS FOR DECISION 1 This application is under the Native Title Act 1993 (Cth) (the NT Act) for the determination of native title rights and interests over an area of land in the north-east of South Australia and to the east of Marree. It is now called the Dieri No 2 Native Title Claim. 2 The land is abutting in part and to the south of an area of land over which the native title rights and interests of the Dieri People have recently been recognised on 1 May 2012: see Lander v State of South Australia [2012] FCA 427, and is abutting in part and to the north of an area of land over which the native title rights and interests of the Adnyamathanha People were recognised on 30 March 2009: see Adnyamathanha No 1 Native Title Claim Group v State of South Australia (No 2) [2009] FCA 359. 3 There is a further claim for the determination of native title rights and interests over land to the north-east of the land the subject of this claim: the Yandruwandha/Yawarrawarrka Peoples Claim (SAD 6024/98) which is yet to be resolved. 4 On 7 June 2012, an application was made by Leslie J Harris Jnr, Leslie J Harris Snr and Wayne Harris on behalf of the Thayipithirringuda Yandruwandha, Pilatapa Yandruwandha People (joinder applicants) to be joined as parties to the application. 5 Although the joinder applicants are so described, their interlocutory application is not clearly expressed. It appears to seek orders that the application be brought to an end, or alternatively that the applicant on the application negotiate with them regarding the claim boundaries, because the joinder applicants represent another native title claim group or subgroup who have native title rights and interests in the claim area. The joinder applicants also seek a determination of native title rights over the claim area in favour of the Indigenous people they claim to represent. 6 After hearing submissions from the joinder applicants, on 13 August 2012, I dismissed their interlocutory application. These are my reasons for that decision. 7 Firstly, it is not clear that such interests as the joinder application appear to assert relate to the claim area the subject of this application. 8 On the material currently before the Court, it is difficult to ascertain the area in which an interest is being asserted, the exact nature of the joinder applicants' interests and any legal basis for the orders sought. 9 By letter dated 12 June 2012, the Court wrote to the joinder applicants indicating that the documents filed lack precision. It was suggested that they might consider filing an amended application. It indicated in particular that their material did not clearly identify the particular country in which the joinder applicants claimed an interest, or that it overlapped with the present claim area. 10 At the directions hearing held on 17 July 2012 in this Honourable Court, the applicants indicated to the Court that they did not wish to file any further material in support of their interlocutory application. 11 The materials relied upon by the joinder applicants primarily consist of maps which appear to identify the lands in respect of which the joinder applicants claim rights and interests as traditional owners. The three affidavits filed by the joinder applicants state: 1. I am a Thayipilthirringuda, Nirripi, Palpamudramudra Yandruwandha Man I'm proud of my Ancestry and identity. I have connections to the Pilatapa Yandruwandha, Ngurawola Yandruwandha, Ngananhina Yandruwandha, Yarrawarrka Yandruwandha & Wongkumara Peoples. 12 Annexures A, C and D to the affidavit of Leslie J Harris Jnr appear to be intended to define the area in which the joinder applicants claim an interest. 13 With respect to the map marked as Annexure A, it identifies the area of the Dieri No 2 claim around Murnpeowie as being "Pilatapa Yandruwandha", a group to whom the three deponents assert a "connection". The map marked Annexure C appears to be a copy of the map marked Annexure A and on this occasion identifies the Dieri No 2 Claim area as Pilatapa. The map marked Annexure D appears to identify at least part of the Dieri No 2 Claim as being "Pilardapa", and appears to indicate that the Joinder Applicants' interest is marked to the area to the north of the Dieri No 2 Claim. 14 However, I do not consider that the material is sufficiently clear to be satisfied that the rights and interests which the joinder applicants assert relate to the claim area. They may relate to the Dieri No 1 claim, or to Yandruwandha/Yawarrawarrka claim area, or to parts of those areas. 15 Simply on that ground, I would have refused the interlocutory application. 16 Secondly, even if there is overlap between the claim area of this application and the area over which the joinder applicants assert an interest, I do not think it is shown that they have the status to do so. 17 As noted above, any possible overlap of the claim area and the area in which the joinder applicants assert an interest is over an area which they describe as Pilatapa Yandruwandha land. The joinder applicants acknowledged in the course of their submissions that they are not Pilatapa People. 18 Thirdly, in my view, the material relied on by the joinder indicates in essence that, whatever the area of country over which they assert native title rights and interests (either on their own behalf or on behalf of others), their real purpose by the interlocutory application is to obtain a determination of native title in their favour. Where a person establishes that he or she has an interest which may be affected by a determination of native title in a proceeding, the Court may nevertheless refuse to join that party to the proceedings under s 84(5): Kokatha Native Title Claim v South Australia (2005) 143 FCR 544; Far West Coast Native Title Claim v State of South Australia (2011) 191 FCR 381, Akiba on behalf of the Torres Strait Regional Seas Claim Group v State of Queensland (No 2) (2006) 154 FCR 513. The proper and only means by which a person can seek a determination of native title is by making an application in accordance with s 13(1) and s 61 of the NT Act: The Commonwealth of Australia v Clifton (2007) 164 FCR 355. 19 That the joinder applicants are seeking a determination of native title in their favour is clearly evident from the orders sought, briefly summarised above, and the contents of the affidavits relied upon in support of the application - in particular, that is apparent from each of the joinder applicants. That is confirmed by the fact that the joinder applicants seek to be joined as representatives of the Thayipithirringuda Yandruwandha, Pilatapa Yandruwandha People. In Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 Reeves J at [23] indicated that the Court would ordinarily dismiss an application for joinder made by a person in a representative capacity if it evidences that "their sole purpose in seeking to be joined [was] to obtain a determination of native title in their favour". In the event of an application being made under s 61 of the NT Act, of course there are the authorisation requirements imposed by s 251B of the NT Act. That procedure has not been shown to have been adopted by any native title claim group in relation to the joinder applicants to date. 20 For these reasons, the interlocutory application was dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.