Lewis on behalf of the Warrabinga-Wiradjuri #6 v Attorney-General of New South Wales

Federal Court of Australia|2018-04-12|Before: Griffiths J

The applicant's submissions summarised 30 In brief, the applicant opposed the joinder on the basis that: (a) although Mr Kemp had elected not to claim a native title interest in the application area, his interest could not be defined with reasonable certainty and is not readily ascertainable as a matter of fact; (b) although Mr Kemp claims to have knowledge of familiarity with what he describes as "Group K", which is a reference to a language group more commonly known as the Gundungurra, he has not sought to rely on any independent material which suggests that the boundaries of traditional Gundungurra country is proximate to the application area and the available material suggests to the contrary; (c) although Mr Kemp does not claim membership of the Gundungurra in his evidence, he appears to suggest in his 2 March 2018 submission that he is seeking to establish his authority to act as a representative of that group. Applying Reeves J's decision in Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [19], a person cannot be joined as a respondent party in a proceeding if his or her purpose is to act as a representative to assert native title rights on behalf of other people; (d) on the issue of the interests of justice, the applicant submitted that if the Court considered that Mr Kemp had a sufficient interest for the purposes of s 84(5), his joinder was not in the interests of justice because: (i) the application is inconsistent with the overarching purpose of civil practice as defined in ss 37M(1) and (2) of the Federal Court of Australia Act 1976 (Cth) and, in particular, the just resolution of disputes as quickly, inexpensively and efficiently as possible; and (ii) the other orders sought in Mr Kemp's interlocutory application relate to proceedings in which Mr Kemp currently is not a party and the terms of order 4 of his interlocutory application suggest that Mr Kemp may have a personal interest in being made a consultant in the proceedings pursuant to s 131A of the NT Act.

Consideration 31 As noted above, the Court has a broad discretion whether or not to join a person as a party to proceedings under s 84(5), guided of course by the particular terms of that provision as well as the case law which has been outlined above. 32 The first issue for determination is whether Mr Kemp has demonstrated, at least on a prima facie basis, that he has relevant interests which may be affected by a determination of native title in respect of the current proceeding. That interest needs to be clearly defined and be genuine and not indirect, remote or lacking substance. Mr Kemp claims to have a native title interest in the area of the claims. He says that he has personal knowledge of the history of the main claim, as well as the related applications. He also claims to have knowledge of the K Group's interest in the Dreaming Track, which appears to provide the central plank for his interest. A major difficulty, however, is that, as mentioned above, the evidence provided by Mr Kemp in support of his claims falls short of demonstrating, even on a prima facie basis, that the Dreaming Track includes the areas the subject of the application for determination in NSD1786/2016. Mr Kemp has not adduced any evidence which shows the external boundaries of the K Group's country. Given its nature, it is probable that the precise boundaries of the Dreaming Track are somewhat nebulous but even after appropriate allowance is made for that matter it remains the case that the areas in NSD1786/2016 are well outside the Dreaming Track. 33 As noted above, it is possible that the Dreaming Track is within the external boundaries of Warrabinga-Wiradjuri #7 (NSD857/2017), being a whole of country claim, but Mr Kemp has not applied to be joined as a party in that proceeding. Instead, he has confined his application to becoming a party to the current proceeding, with a view to then having that proceeding consolidated with the other Warrabinga-Wiradjuri matters, and then dismissed. I accept that Mr Kemp need only show a prima facie case in relation to his interest, in the sense referred to in Arakwal, but I am not satisfied that he has met even this relatively low hurdle. Insofar as it relates to the claimed area in the current proceeding, I consider that Mr Kemp's interest in the Dreaming Track is only indirect and remote. 34 The inadequacy of Mr Kemp's evidence in establishing, even on a prima facie basis, that there is a sufficient connection between the Dreaming Track (and related matters of place names) and the three areas the subject of the claim in the current proceedings, is highlighted even further when reference is made to the annexures to Mr Blackshield's affidavit. One of these annexures reproduces Norman B Tindale's 1974 map of Indigenous group boundaries at the time of first European settlement in Australia. The claimed areas in NSD1786/2016 all fall well within the boundary shown on that map of the Wiradjuri People and are far removed from the area of the Gandangara People. 35 Another annexure comprises an extract from David Horton's 1996 AIATSIS Indigenous Language Map from the website of Culture Victoria. The same observations apply to that map as have been made immediately above in respect of Mr Tindale's map. 36 A third map annexed to Mr Blackshield's affidavit is a map showing Aboriginal languages of New South Wales which Mr Blackshield downloaded from the website of the NSW Department of Aboriginal Affairs. The same observations are equally applicable. These three maps are all inconsistent with Mr Kemp's claimed interest as a Gundugurra man in the claimed areas. 37 Given Mr Kemp's failure to demonstrate even on a prima facie basis that the Dreaming Track affects the areas the subject of the claim in the current proceeding, it necessarily follows that his interests will not be affected "in a demonstrable way" by a determination of the current proceeding. I appreciate that different considerations may arise in respect of other undetermined claims by the Warrabinga-Wiradjuri People, but Mr Kemp has not sought to be joined as a party in those proceedings. 38 It is unclear whether Mr Kemp is acting in a personal or a representative capacity. I am not prepared, however, to accept the applicant's invitation to make a firm finding that Mr Kemp is acting in a representative capacity and that his application should be characterised as a representative claim on behalf of the K Group. Although some ambiguity has been created by Mr Kemp's use of expressions such as "my people", I accept his statements that he is not authorised to act on behalf of the Gundugurra People (however spelt) and that, for the reasons he gave, it would be difficult for him to obtain such authorisation. I also note that in his reply submissions, Mr Kemp stated that he was "authorised to make any submissions on behalf of myself and the kanytjaangkara Peoples". On the basis of the evidence before me at this stage, this alleged "authorisation" seems to involve a case of self-appointment by Mr Kemp rather than reflect some formal or traditional process of authorisation. I do not doubt the sincerity of Mr Kemp's subjective beliefs. 39 For completeness, I should also state that I do not accept the applicant's submission that Mr Kemp has a personal interest in being appointed a consultant under s 131A of the NT Act, and that this is what has motivated his interlocutory application. I have noted Mr Kemp's reply submission in which he acknowledges that he may have a conflict of interest in consulting on a professional basis in the proceeding. 40 Given my conclusion that Mr Kemp's interests are insufficient to qualify as "interests" for the purposes of s 84(5), it is unnecessary to address and determine the second limb of s 84(5), namely whether or not it is in the interests of justice to join him as a party in the proceedings. The two limbs are plainly conjunctive (see Wakka Wakka People #2 at [5]-[6] per Kiefel J). The second limb only arises if the first limb has been established, which is not the case here. 41 Finally, as mentioned, there are currently on foot in the Court several Warrabinga-Wiradjuri matters. As has been emphasised, the current joinder application is confined to NSD1786/2016 and in circumstances where Mr Kemp's application was made after the expiration of the notification period for that claim. Accordingly, it was not open to Mr Kemp to become a party to the proceeding by the route set out in s 84(3) (see [15] above). The main country claim in NSD857/2017 covers a much broader area than the claim in this proceeding. Although that larger area covers but expressly excludes inter alia the area covered by NSD1786/2016, the applicant's stated intention is to have the various claims consolidated with the main country claim after future act negotiations have been completed. The claim in NSD857/2017 was registered on 1 September 2017. Notification of that application was apparently delayed and notification will not expire until 7 May 2018. It appears, therefore, that it may be open to Mr Kemp to become a party to that proceeding if he is able to satisfy the requirements of s 84(3) of the NT Act, which requirements are notably different from those under s 84(5) concerning joinder.

Conclusion 42 For these reasons, the interlocutory application should be dismissed. There will be no order as to costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Summary of relevant statutory provisions and case law 15 The parties were agreed that the relevant provision in the NT Act concerning Mr Kemp's application to be joined as a party in the circumstances here is s 84(5), but for reasons which will shortly emerge s 84(3) should also be noted: 84 Parties … Affected persons (3) Another person is a party to the proceedings if: (a) any of the following applies: (i) the person is covered by any of subparagraphs 66(3)(a)(i) to (vi); (ii) the person claims to hold native title in relation to land or waters in the area covered by the application; (iii) the person's interest, in relation to land or waters, may be affected by a determination in the proceedings; and (b) the person notifies the Federal Court, in writing, that the person wants to be a party to the proceeding: (i) within the period specified in the notice under section 66; or (ii) if notice of an amended application is given under paragraph 66A(1A)(e) - within the period specified in the notice under that paragraph. … 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. … 16 There was substantial agreement between the parties as to the relevant legal principles concerning joinder. Some of those principles were summarised by Branson J in earlier proceedings involving Mr Kemp, being Davis-Hurst on behalf of the Traditional Owners of Saltwater v New South Wales Minister for Land and Water Conservation [2003] FCA 541; 198 ALR 315 (Davis-Hurst joinder). 17 Drawing also on cases such as Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 (Arakwal) and Walker v State of Western Australia [2002] FCA 869; 191 ALR 654 per French J, Wakka Wakka People #2 v State of Queensland [2005] FCA 1578 (Wakka Wakka People #2) per Kiefel J and Jacob v State of Western Australia [2014] FCA 1106 per McKerracher J, the relevant principles which guide the exercise of the Court's discretion include: an interest sufficient to give a person the right to become a party to an application needs to take into account the fact that a party can in effect veto the process of mediation and conciliation which the NT Act favours, which suggests that the relevant interest must not be indirect, remote or lacking substance; the nature and content of the right to become a party also suggests that the interests must be capable of clear definition and be of such a character that they may be affected in a demonstrable way by a determination of native title to which the application relates; the interest need not be proprietary or even legal or equitable in nature, however, the interest must be "genuine and not indirect, remote or lacking in substance"; a person who has "a special, well-established non-proprietary connection with land or waters which is of significance to that person" may have a sufficient interest; other discretionary considerations may be relevant, including the following factors identified by Gilmour J in Barunga v Western Australia (No 2) [2011] FCA 755: (i) because a determination of native title is a proceeding in rem and binds 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) if joinder means that there will be consideration of rights and interests of the joined party which would lead to a more accurate definition of the native title rights and interests claimed, this is a factor in favour of joinder; (iii) the party joined is put in the position to protect native title rights and interests which they claim to hold; (iv) whether the interest asserted by the third party can be protected by some other mechanism; (v) whether the applicant for native title determination would be prejudiced if the third party is joined as a party; and (vi) the history of the proceedings, which includes the effects of delay and the resource implications of joinder for all parties to the proceeding (see also Allen on behalf of the Nyamal People # 1 v State of Western Australia [2018] FCA 320 at [56] per Barker J). 18 The whole of the relevant circumstances should be taken into account in determining whether or not to join a party to the proceedings, as was emphasised by Rares J in TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2016] FCA 553 at [164]: 164 However, there will also be persons who have a disagreement with an authorised applicant's conduct of a native title claim or the claim itself, but whose rights or interests will still be affected by a determination of the claim, so that it will be appropriate or in the interests of justice to join those persons as parties to the proceedings. And, the interests of justice relevant to an application under s 84(5) must be assessed in the whole of the circumstances, including the stage that the proceedings have reached when the application is made and the consequences of the joinder, or refusal to order it, on all of the parties and the person applying to be joined. A consideration that may be relevant is the role that the State or Territory Government, as the representative of the community where the land and waters claimed are, has played in the litigation (see Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at 115 [29] per Emmett J), as well as the position advanced by other respondents in relation to the claim in the context of the rights or interests that the person seeking to be joined wishes to advance. 19 Of potential significance to the determination of Mr Kemp's application is a series of cases which draw a distinction between a person who seeks to be joined as a respondent to a native title proceeding with a view to obtaining a positive determination of native title, as opposed to the situation where the person wishes to protect native title rights or interests from adverse ramifications. The relevant principles are helpfully summarised by McKerracher J in A.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 2) [2013] FCA 1000 (Mirning People) at [56] and [57]: 56 Although there is a broad discretion conferred by s 84(5) NTA, the question of whether or not the discretion should be exercised in favour of joining a person as a party will depend on the circumstances of each case including the history of the matter. It must be apparent that there is at least prima facie an interest warranting exercise of the discretion under s 85(5) NTA: Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 per Reeves J (at [8]) and Wakka Wakka People # 2 v State of Queensland [2005] FCA 1578 per Kiefel J (at [6]). A fact to bear in mind is that once a person is joined as a party he or she has the power to veto the process of mediation and conciliation that the NTA favours. This makes it all the more important that the interest is capable of clear definition and of a character that may be affected in a demonstrable way by the determination in relation to the application: Byron per Black CJ (at 7-8). In Isaacs, Reeves J concluded that the interlocutory applicants had shown at least on a prima facie basis that the native title rights and interests which they claimed to hold could be affected by a determination of the application, however, joinder was not permitted. His Honour held (at [18]) that it was now well settled law that: where a person is seeking to be joined as a respondent to a native title proceeding on the basis that he or she claims to hold native title rights and interests in an area of land or waters that may be affected by a determination in those proceedings … [that is permissible only] if he or she wishes to pursue a personal claim or interest in defensively asserting those native title right or interests or, in other words, to protect them from erosion, deletion or discount. 57 Additionally, as Reeves J noted in Isaacs (at [19]), if a person wishes to obtain a positive determination of native title then the NTA prescribes that the only method by which that can be achieved is by an application under s 13(1) NTA, complying with the requirements of s 61 and s 251B NTA: see also Commonwealth v Clifton (2007) 164 FCR 355 and Moses v Western Australia (2007) 160 FCR 148 (at [18]). A person cannot be joined as a respondent party if his or her purpose in being so joined is to act as a representative to assert native title rights on behalf of other people. That was the position taken by the interlocutory applicant in Isaacs as there was a positive assertion of native title rights and interests rather than the pursuit of any personal interest of protecting native title rights and interests. 20 In Davis-Hurst joinder, Branson J ordered that Mr Kemp be joined as a party in two proceedings relying primarily on the following matters: (a) unchallenged evidence which established that Mr Kemp is a descendant of the Pirripaayi people, who are traditionally associated by Aboriginal law and custom with an area which included the land the subject of the two native title determination applications; (b) Mr Kemp's concern that, while he did not wish to advance a claim for a determination of native title in respect of the relevant land either on his own behalf or on behalf of the Pirripaaya people, a native title determination in favour of the application in both proceedings would "give formal recognition to a version of history that does not recognise the Pirripaayi people as the traditional owners of Saltwater"; (c) Mr Kemp's concern that the applicant in both proceedings was the wrong person to represent the claimant group because, based on Mr Kemp's understanding of traditional Aboriginal law and custom, a woman could not claim the areas of land the subject of the applications for determination; and (d) Mr Kemp's concern that the applicant may not accept, or perhaps be aware of, the correct Dreaming story and the customary laws of the area in question. 21 Justice Branson noted at [16] that Mr Kemp had "undertaken considerable research into the history of the claim areas". Her Honour added that any determination by the Court might be seen to give "legitimacy to an understanding of that history which [Mr Kemp] does not accept is complete" and that any such determination could adversely affect his ability "to share the knowledge that he has acquired about the Pirripaayi people and his capacity to keep alive Pirripaayi language and customary laws". 22 It is evident that Mr Kemp has been involved in several previous native title proceedings. In addition to Davis-Hurst joinder, he actively participated in the following proceedings: Kemp v Registrar, Native Title Tribunal [2006] FCA 568; Kemp v Native Title Registrar [2006] FCA 939 and Davis-Hurst on behalf of the Kattang People v Minister for Lands [2009] FCA 725.

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