Consideration
35 Section 84(3) of the Native Title Act provides that:
Another person is a party to proceedings if:
(a) any of the following applies:
(i) the person is covered by any of subparagraph s 66(3)(a)(i) to (v);
(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 determination of 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(1)(e) - within the period specified in the notice under that paragraph.
36 Mr Reid may fall within the terms of s 84(3)(a)(ii) and may also fall within the terms of s 84(3)(a)(iii). He has given notice in writing by his Form 5 application within the period set out in s 84(3)(b)(i). What follows from that is that Mr Reid is arguably a person covered by s 84(3) and, by force of that subsection, is a party to the proceedings. It is not necessary to finally decide that question. As I have indicated, it is clear that he himself does not claim to hold native title rights and interests in relation to the claim area of the KU claim to the exclusion of all others, but his Form 5 application indicates that he says that, as a member of the Kokatha People, his (asserted) primacy in the KU claim group in relation to the claim area may be affected by determination of the proceedings because his primacy has not been recognised by the KU claim group. If it were recognised, he says, only he could authorise the bringing of the claim.
37 Section 84(5) of the NT Act also provides an avenue for a person to become a party to an application. It provides:
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.
38 Section 84(8) provides that the Court may at any time to order that a person, other than the applicant, cease to be a party to the proceedings.
39 Further, s 84(9) provides that:
The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:
(a) the following apply:
(i) the person's interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and
(ii) the person's interests are properly represented in the proceedings by another party; or
(b) the person never had, or no longer has, interests that may be affected by a determination in the proceedings.
40 The question for the Court to consider is therefore whether, having regard to the terms of s 84(8) and (9), Mr Reid should be permitted to remain a party. The question relevantly might be posed by the terms of s 84(9)(a)(ii): whether Mr Reid's interests are represented in the proceedings by another party. It is clear s 84(9)(a)(i) does not apply to him. However, Logan J said in Butterworth on behalf of the Wiri Core Country Claim v State of Queensland [2010] FCA 325 (Butterworth) at [12], that s 84(a)(i) and (ii) are expressed conjunctively. It was not argued that I should not follow that decision. Consequently, I do not think that s 84(9)(a)(ii) can apply in the present circumstances.
41 Section 84(9)(b) also does not apply. I have assumed, as did the parties, that Mr Reid has "interests" arising apparently by virtue of s 84(3)(ii) in the KU claim area which may be affected by a determination of the KU claim. For reasons which appear below, that may not be a valid assumption: see at [66] and [68].
42 However, that is not an end to the matter. Section 84(8) is not confined to the matters referred to in s 84(9). Logan J in Butterworth considered the position of particular persons wishing to become or remain respondent parties when the claim group acknowledged those persons as being part of the claim group. His Honour ordered that those persons cease to be parties under s 84(3) of the NT Act by exercise of the the Court's power under s 84(8).
43 Logan J at [39] said:
It seems to me that the power given under s 84(8) is not constrained by the circumstances referred to in s 84(9). Section 84(9) to me provides particular circumstances where Parliament contemplates dismissal will be considered but that subsection is not exhaustive of the circumstances where the dismissal power can be exercised. As I have said, in this particular case, it seems to me on the evidence that the applicant is doing what the Native Title Act contemplates, which is representing all of the members of the native title claim group, including Mr Johnson and those others also descended from Mary Johnson. The Native Title Act to me also contemplates that there will be occasions when it will be necessary for an applicant to consult with a native title claim group. Consult does not equate with "be dictated to by a member of". A member of a native title claim group, where a need for consultation arises, is entitled to be given an opportunity to be heard, nothing more and nothing less than that.
44 As to the wider scope of operation of s 84(8), some assistance is derived from Kulkalgal People v State of Queensland [2003] FCA 163 (Kulkalgal). Drummond J there said at [7]-[8]:
If, as appears to have occurred here, one of the members of the claim group, after the regular institution of a native title claim, becomes dissatisfied with the way his or her interests are being represented by the applicant on the claim, then the only avenue provided for by the [NT Act] is that contained in s 66B. The dissatisfied claim group member can apply to the Court to have the applicant in the proceedings replaced. But the section makes it clear that a member of a claim group who becomes dissatisfied, after the institution of the proceedings, with the way the applicant is conducting the proceedings can only make such an application if the dissatisfied person has the authority of all the members of the claim group to seek replacement of the named applicant.
The statutory scheme leaves no room for the principle referred to in cases such as John v Rees [1970] Ch 345 at 371 that a person represented in an action by a representative applicant under O 6 r 13 the Federal Court Rules can, if dissatisfied with the way the representative applicant is conducting the action, be joined as a respondent in the proceedings.
45 Section 66B(1) of the NT Act relevantly provides that:
One or more members of the native title claim group (the claim group) in relation to a claimant application…may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:
(a) one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:
(i) the person consents to his or her replacement or removal;
(ii) the person has died or become incapacitated;
(iii) the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;
(iv) the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and
(b) the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.
46 The material before the Court firstly shows that Mr Reid does not himself claim to be a member of a different claim group than that of the Kokatha People, or of the Kokatha People as part of the KU claim group, so his position is not one where he says that his interests as a member of a different and competing claim group may be affected by a determination of native title: cf Munn v State of Queensland [2002] FCA 486 at [8] per Emmett J; Worimi Local Aboriginal Land Council v Minister for Lands for New South Wales (2007) 164 FCR 181 at [16]-[17] per Bennett J; Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 at [24] per Mansfield J; Davis-Hurst v New South Wales Minister for Land and Water Conservation (2003) 198 ALR 315 per Branson J; Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 (Bonner) at [18] per Reeves J. Reeves J in that case at [19] pointed out that a person in that position, joined as a respondent party, could not use the status as respondent as an avenue to a determination of native title in that person's favour, as s 61 of the NT Act is the only available avenue for such a determination: see Commonwealth of Australia v Clifton (2007) 164 FCR 355; Moses v Western Australia (2007) 160 FCR 148. Consequently, such a person as a respondent also cannot act in a representative capacity on behalf of others: Bonner at [19] per Reeves J.
47 Secondly, the material shows that Mr Reid's concern is what is sometimes described as intra-mural. That is, his concern is not so much about whether native title rights and interests over the KU claim area are in fact held by the KU claim group, but that the internal process of the KU claim group have not been properly followed according to its traditional laws and customs. In essence, he says that the proper decision making process by which the KU claim group should have authorised the applicant to make the claim under s 251B of the NT Act was not followed, because (at least so far as the Kokatha community as part of the KU claim group are concerned) only Mr Reid under the traditional laws and customs could authorise the making of the claim. He further says he has not authorised the present application.
48 Although the decisions in Kulkagal and Butterworth are apparently on point, it is necessary to have closer regard to their particular facts and to the relevant statutory provisions to determine if, and how, they resolve the present issue. In Kulkagal, the person wishing to become a party in that matter applied to do so under s 84(5). She had not adopted the option apparently available under s 84(3). She was a member of the claim group. She became disaffected with the conduct of the claim by the applicant, authorised by the claim group, after it had been instituted. Drummond J based his decision upon the terms of s 66B, together with the scope of the authority of the applicant under s 62A, once the claim group had properly appointed the applicant. In Butterworth, the persons concerned had apparently become parties under s 84(3), although they were recognised as members of the claim group, because they were dissatisfied with the conduct of the claim by the authorised applicant. However, it should be noted that Logan J in Butterworth at [39] clearly indicated that he was exercising a discretionary judgment under s 84(8), and that there may be circumstances where a member of a claim group might properly become or remain a respondent party. In Kulkagal, Drummond J seems to suggest that there would be no such circumstances. These cases demonstrate that considerations relevant to joinder under s 84(5) are also relevant to an order made under s 84(8) that a person cease to be a party.
49 The significant point of difference in this matter is that Mr Reid appears not to have accepted that the applicant was authorised by the KU claim group to make the application at any time in accordance with s 251B of the NT Act.
50 Section 251B requires the authorisation of an applicant to be given by "all persons in a native title claim group" by one of two means. If there is a process of decision-making under the traditional laws and customs of the claim group, then the authorisation must be made in accordance with that process: s 251B(a). If there is no such process, then the members of the claim group must agree to, and adopt, a process for granting the authorisation: s 251B(b).
51 The application records, as it is required to do, the authorisation of the four persons comprising the applicant by a meeting of the KU claim group. It also includes the certification of the claim by SANTS under s 203BE(1)(a) of the NT Act that all the persons in the KU claim group have authorised the applicant to make the claim by the meeting of 14 December 2008 referred to in [1] above, and that the authorisation was given under s 251B(b) as there was no traditional decision-making process.
52 There are other decisions of the Court which may touch upon the issue.
53 Bidjara People #2 v State of Queensland [2003] FCA 324 (Bidjara #2) also concerned facts closely parallel to the present issue. A member of the claim group sought to be joined as a respondent party to an application under s 61 of the NT Act, relying upon the Court's discretion under s 84(5). That person, like the applicant in Kulkagal, had become dissatisfied with how the authorised applicant was conducting the claim. The person had not taken advantage of the processes under s 84(3). Ryan J decided to permit her to be joined as a party. He said at [7]:
It is true that s 61(1) requires an applicant to be authorised by all the members of the native title claim group and s 66B enables an applicant to be replaced when he or she is no longer authorised by the claim group to make the application or to deal with the matters arising in relation to it. However, that section does not accommodate the situation which has arisen here, where the applicants retain the authorisation, as I understand it, of the majority of the claimant group, but there are one or more dissentient members of the group. In that event, it can hardly be contended that the claim should lapse. However, it would also lead to injustice if the dissentient members were thereafter denied a voice in the determination of the claim. They clearly remain persons whose interests may be affected by a determination in the proceedings within the meaning of s 84(3)(ii) or (iii). It would unnecessarily multiply proceedings to require those persons to institute their own claims. Accordingly, I consider, notwithstanding the views expressed by Drummond J in Kulkalgal People that such persons can be made parties pursuant to s 84(5).
54 The recognition of the breadth of the discretion in s 84(5) as informed by the decision of Bidjara #2 appears to be mirrored by the recognition of the breadth of the converse discretion in s 84(8) as discussed in Butterworth.
55 However, it is not clear to me how the fact of there being a few dissentient claim group members in Bidjara #2 might have meant that the claim itself should lapse. There is no reason why it should in this matter. Authorisation under s 251B, or re-authorisation under s 66B of a different person or persons as applicant under s 251B, requires authorisation either in accordance with traditional laws and customs, or in accordance with a decision-making process agreed to by the claim group. Unanimity of the claim group is not a pre-condition in either case, unless required under the particular traditional laws and customs or if otherwise has been agreed. That was not said to be the case in Bidjara #2. Nor, with respect, do I perceive that injustice would necessarily follow if "dissentient members [of the claim group] were thereafter denied a voice in the determination of the claim". Indeed, the opposite might be the case. Section 62A of the NT Act contemplates the authorised applicant having control of the proceeding, and not the individual members, or any particular individual member, of the claim group. That is, in my view, to ensure the coherent and effective prosecution of the claim. If the approach espoused in Bidjara #2 were routinely adopted, any one or more dissentient members of the claim group would be able to become respondent parties to an application, even if the claim group as a whole according to its relevant decision-making process under s 251B had appointed the applicant and did not wish to remove and replace the applicant. The role of such dissentient members, in that event, would either be to assert their own status or role intramurally, or within the claim group, when that issue is not one to be decided on the application, or would be to assert that the claim should be handled in some other way. From the point of view of the other respondent parties, they would be faced with the problem of dealing not only with the authorised applicant but with dissentient members of the claim group who had become respondent parties. That process would make negotiated resolution of claims less likely. It would add to cost and delay. It would subvert the clear intention of s 62A of the NT Act to provide to respondent parties one person (or a group of persons) responsible for dealing with the claim on behalf of the claim group. From the point of view of the claim group itself, similar comments would apply.
56 The claim group is empowered by ss 251B and 66B to select from time to time the person or persons on their behalf who are to be the applicant and to fulfil the functions provided by s 62A. It is not part of the scheme of the NT Act, nor would it be consistent with the effective and efficient presentation and conduct of their claim, that individual members of the claim group who prefer a different approach or approaches should routinely be able to play a direct role in the presentation of the case both during its procedural stages or its evidentiary stages by becoming a separate party to the application.
57 Combined Dulabed and Malanbarra/Yidinji Peoples v State of Queensland (2004) 139 FCR 96 (the Combined Dulabed Claim) also concerned a dissentient member of the claim group. That case has strong factual echoes in Mr Reid's current position. That person disputed the proposed evidence of the claim group (through an anthropological report) about the extent of the claim group because, he claimed, certain identified persons should not in fact be accepted as members of it as they were not sufficiently connected to the claim area. His application to be joined as a respondent party to the application to assert that position had been refused once: Combined Dulabed and Malanbarra/Yidinji Peoples v State of Queensland [2002] FCA 1370. At that stage, there was no evidence to support that person's assertion. The timing of the application and its strategic purpose were also discretionary factors which influenced the Court. His second application for joinder under s 84(5) was also refused. At that time, the grounds of joinder included the dispute about the extent of the claim group (the same point as previously rejected). However, the contentions were more extensive. It was also argued that the claim group had not properly authorised the appointment of the applicant because the proposed respondent and another person were critical to a valid authorisation and had not participated in the authorisation decision. That, as I noted above, closely reflects Mr Reid's position.
58 As to those matters, in the Combined Dulabed Claim, Spender J at [45] said that he preferred the view in Bidjara #2 to that in Kulkagal that s 84(5) left a residual discretion to allow the joinder of a dissentient group member as a respondent in certain circumstances. Nevertheless, he refused the joinder in his discretion because the evidentiary position (the lack of any evidence to support the assertion about the more limited claim group) was the same.
59 That native title application attracted a third application for joinder by four different dissentient members of the claim group under s 84(5): Combined Dulabed and Malanbarra/Yidinji Peoples v State of Queensland (2005) 214 ALR 306. Those persons asserted that their family interests had been shut out of the decision-making process, although they were recognised as members of the claim group, and that they were necessary participants in the authorisation process so that, in the absence of their participation, there had been no valid authorisation process by the claim group appointing the applicant. Kiefel J at [12] said of the power under s 84(5):
Assuming there to be power [to join a dissentient member of the claim group as a respondent party], one would expect that it would not be granted as a matter of course and upon assertions about lack of representation. There would at the least need to be shown a real difficulty in that person's interests being represented.
60 Her Honour was not satisfied that the relevant interests were not being taken into account, or that any suggested changes to the genealogy would not be considered by the applicant, the relevant representative body, and the anthropologists engaged by the applicant.
61 In my view, those authorities on balance indicate that
(1) there is no necessary legal impediment to a member of a native title claim group being joined, or remaining, as a respondent party to the claim, but
(2) the circumstances in which a dissentient member of a native title claim group will be permitted to become a respondent party under s 84(5) or, having become a respondent party under s 84(3), will be permitted to remain a respondent party, will be rare.
It is not necessary to explore all the circumstances in which that may be permitted. The matters discussed above indicate why that is so.
62 Those reasons are fortified, in my view, by other provisions in the NT Act. Section 225 defines the concept of a determination of native title. Apart from deciding if native title as defined in s 223 exists in relation to a particular area, the determination must decide:
(a) who are the persons, or each group of persons, holding the native title;
(b) the nature and extent of the native title rights and interests;
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c).
Clearly, the "interests" referred to in (c) are not native title rights and interests, because their extent is determined by (a) and (b). There is nothing in s 223, therefore, which requires the Court to address the intramural or internal relations of the holders of native title. The extent to which the Court must address that topic is expressed in ss 55 ff of the NT Act (referred to in [65] below).
63 It is also appropriate to observe that the definition of native title, and the requirements of a determination of native title, do not require the consideration of, or the resolution of, any intramural or internal issues about the respective status of, or relative responsibilities of, individual members of the claim group. There is therefore no reason routinely to recognise and give a voice to those within the claim group who take a different view about any such matters from that taken by the claim group through the authorised applicant.
64 Of course, it is necessary for the applicant to make out the due authorisation of the making of the claim by the applicant. That is required in the application itself, and may be (as here) supported by certification of the relevant native title representative body. If a respondent puts authorisation in issue, further evidence may be required, and s 84D(1) empowers the Court to require such evidence. It is significant, even in this context, that s 84D(3) and (4) empower the Court to hear and make a determination of native title notwithstanding that the application was not properly authorised to make it, to secure due prosecution of the application and the interests of justice. Section 84D was introduced by the Native Title Amendment (Technical Amendments) Act 2007 (Cth) in part to enable the Court to avoid the consequences of some defect in the authorisation process if the interests of justice require it, so that form should not conquer substance.
65 When a determination of native title is made, s 55 requires the Court to make such determinations as are required by ss 56 and 57. The Court is to decide whether the native title is to be held on trust by a prescribed body corporate and is to also inform the non-trust functions of a prescribed body corporate (as prescribed by, and with the functions specified by, regulations under ss 58 and 59) for the "common law holders" of native title (that is for the native title claim group who hold the native title rights and interests). Such a body must become a registered native title body corporate as defined in s 253, inter alia, by reference to s 193(2) or (4). In short, the prescribed body corporate must act in the best interests of all the claim group, and will no doubt from time to time have to address internal disputes about the status or entitlement of individuals within the claim group in relation to other members of the claim group. As I have indicated, determination of native title is not required to resolve such issues. Nor could it do so. It would be impossible to predict, even for a period of a few years into the future, the sort of decisions which the claim group through its prescribed body corporate might have to decide and which might affect the status or interests of one or more of its members in relation to one or more of the other members of the claim group. The Court could not predict which, if any members, of a native title claim group might disagree with others about matters relating to native title or its benefits in the future. Far less could it be expected to resolve them fairly and in accordance with law, but in an anticipatory way.
66 Indeed, having regard to that legislative structure, there is much to be said for the view that the persons referred to in s 84(3)(a)(ii) are persons who claim to hold native title in relation to the land or waters in competition with the claim group, rather than as members of it. There is also much to be said for the view that the "interest" referred to in s 84(3)(a)(iii) is an interest other than a native title right and interest (by comparison with subclause (ii)). In the latter regard, there is some significance to be noted of the use of the word "interest" in the singular, as compared to its plural use in s 225(c), which requires the determination of "the nature and extent of any other interests" in relation to the native title area.
67 However, it is not finally necessary to decide those matters. It was assumed by the parties that Mr Reid had become a respondent party to the application under s 84(3), so the question was whether he should cease to be a party by order under s 84(8). In my view, such an order should be made. As I noted above, he is recognised as a senior member of the Kokatha People and of the KU claim group. His interests in that regard are being addressed in common with those of the other group members. There are, moreover, sound practical reasons discussed above, particularly at [56], why he or indeed other members of the claim group should not be allowed to be or remain to be respondent parties, as highlighted by the consequential issues which would then follow, both to the members of the KU claim group and to the other respondents. Not least of those issues is the probable delay in, if not significant impediment to, negotiating an agreed outcome to the claim.
68 There may be circumstances where a particular person wishes to be recognised as a member of a claim group, but is not included. There may be other particular circumstances where an individual's circumstances as a member of the native title claim group may need to be considered. The discretion to join such a person as a respondent party does exist, but in my view its favourable exercise to allow a member of a claim group to become a respondent party will be rare.
69 The particular feature of Mr Reid's position is his assertion that the claim itself has not been duly authorised because he is the only person who can do so. I do not think his evidence to that effect is presently sufficient to treat him in a way which involves allowing him to remain as a respondent party. It is not necessary to refer in detail to his evidence, beyond his own assertions. It is hard to distil from the unsatisfactory material and cogent supporting evidence. He has not sought to explain fully why he should be allowed to go behind the agreements to accept the earlier decisions of the claim group or of the Kokatha People, to which he was a party. There may be more cogent evidence available to him, but it has not been identified. Significant time, money and resources have been invested in this claim. I am informed that these efforts are close to bearing fruit as a consent determination is within sight. Mr Reid, as a group member, will benefit from such a consent determination.
70 Accordingly, in my judgment, it is not in the interests of justice that he remain a party to the proceeding, as his continued status as a respondent will be likely to delay and interfere with the progress of the claim towards a consent determination, and there is not otherwise sufficient reason shown for him to remain a party.
71 There is one further reason which leads to that conclusion. It is an important one. There is an alternative procedural avenue available to Mr Reid to explore the strength of his contention that only he could have authorised the claim: s 84D(2)(c) of the NT Act. It provides for a member of the native title claim group to apply for an order under s 84D(1) requiring the applicant to produce evidence to the Court of the authorisation. That provision provides a vehicle for Mr Reid to raise his concern, without him remaining a respondent party to the application. If he were to make such an application, it would have to be supported by cogent admissible evidence, and would have to explain why he should not be held to his previous agreements. He will be faced with the existing evidence in the application as to the authorisation issue. Whether he does so, and what evidence he produces if he does so, is a matter for him. The short point is that he does not need to remain as a respondent party to be able to raise that concern. As I have discerned from the material he has produced in support of his case in this application, that is his main concern.
72 Accordingly, pursuant to s 84(8) of the NT Act, I order that Mr Reid cease to be a party to the proceedings.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.