Stock on behalf of the Nyiyaparli People v State of Western Australia

1. The interlocutory application of Mr Phillip Dhu be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BARKER J: 1 On 17 August 2018, I dismissed the interlocutory application of Mr Phillip William Dhu to be joined as a party to this claimant proceeding under the Native Title Act 1993 (Cth). 2 These are the edited ex tempore reasons I gave for dismissing Mr Dhu's application. 3 I deal first with the request for an adjournment to seek to identify and produce documents or relevant portions of documents being the agreement referred to at para 25 of the affidavit of Mr Dhu, made 3 August 2018. 4 The application for an adjournment to that end is opposed on behalf of the Nyiyaparli applicant in the proceeding. I have formed the opinion that the adjournment application should be refused. The interlocutory application that I am now dealing with has been the subject of notice of today's hearing date for some time. 5 A very conscious decision was taken by Mr Dhu not to produce the document in question, and that is stated in his second affidavit, made 13 August 2018. In fact, that was the purpose of the second affidavit, which was made only four days ago. He said: 3 I have made a conscious decision not to attach a copy of the written agreement between me and the other parties to my earlier affidavit for the following reasons; 4 The agreement is very lengthy, is a private commercial document containing confidential information and is the subject of confidentiality obligations imposed in the agreement. 5 By reason of the matters deposed to above I seek orders in terms of the Interlocutory application filed on 6 August 2018. 6 The Court does not wish to unfairly disadvantage any party, but if the argument was, as it substantively is, that by adding the apical ancestor known by the English name, Daisy, to the Nyiyaparli claim group description that this would somehow adversely affect interests Mr Dhu and members of his family and related families have under that agreement, then there is an obligation on them to state quite clearly by now what those provisions were which could result in an adverse effect. Rather, there are some generalised assertions made about the interlocutory applicant (Mr Dhu) or people associated with him being deprived of payments that are otherwise due to the party called the "Banjima common law holders". 7 I observe that there still is not a proper identification of what those documents are. It appears that there only ever have been these generalised assertions as to the operation of the agreement. The instructing lawyer and counsel appearing today, Mr Kakay, has admitted that he has not been provided with them for the purpose of the joinder application. 8 It seems to me at this rather late stage in the proceeding where the Nyiyaparli are currently proceeding to a consent determination with activities happening next week, including a case management hearing next Thursday, that it would be inappropriate to allow the adjournment in all these circumstances. 9 That then leaves me with the primary application for joinder. I have formed the view that that application should be refused. 10 I am not prepared to join Mr Dhu as a party to this proceeding. The interlocutory application is dated 6 August 2018 and is made by Mr Dhu. It is not an application made by Mr Dhu in a representative capacity for other people, although it is reasonable to say that, in his affidavit and the affidavit of Ms Helen Cynthia Smith made 16 August 2018 and the affidavit of Peter Dodd made 16 August 2018, that Mr Dhu relies upon, he is endeavouring, in a broad sense, to indicate that there are other people, in a similar position to him, who would like, in effect, to be heard in relation to the adding of Daisy to the list of apical ancestors on the Nyiyaparli application. But be that as it may, the evidence before me also suggests, whilst Mr Dhu and those others would appear to be descendants of Daisy, that there are other descendants of Daisy in a similar position to them who do not actually take the same stance as Mr Dhu. 11 There are two questions for joinder of a person as a party in a native title claimant application like this. They arise under s 84(5) of the Native Title Act. 12 In substance, it is necessary for the Court to be satisfied that (1) the person's interests may be affected by a determination in the proceeding, and (2) it is in the interests of justice to join that person as a party. 13 The first question, thus, is whether the interlocutory applicant has a relevant joinder interest and the second is whether the Court, in its discretion, having regard to the interests of justice, should order joinder. I have considerable difficulty in accepting that Mr Dhu's interests may be affected by the consent determination that is currently proposed, that is, the argument put on his behalf that, if he does have such an interest, it will be affected by the consent determination if it is made. 14 The principal basis upon which that contention is put forward is that Mr Dhu and the others who have made affidavits in the proceeding may be more likely not to receive benefits under the agreement mentioned at para 25 of Mr Dhu's affidavit, to which I have already made reference. I am not at all satisfied that that proposition follows. Indeed, I consider the proposition to be lacking in many respects. 15 The key argument put is that Mr Dhu and some of the others identify as Banjima People. They, in some respects, are proposing that there be an inquiry conducted by the National Native Title Tribunal to ascertain if, indeed, they are not Banjima People. That question has already been authoritatively determined by the contested native title proceeding in Banjima People v Western Australia and Others (No 2) (2013) 305 ALR 1; [2013] FCA 868. 16 The Court - and I was the trial judge - positively found that it could not be satisfied that Daisy was an ancestral member of that Banjima claimant group. There was material suggesting - although the Court did not need to make any such finding - that she might, ancestrally, be part of the Nyiyaparli group. 17 Now, the evidence of Ms Katherine Anne Holloman, whose affidavit was read by the Nyiyaparli applicant, also dated 16 August 2018, indicated that the Nyiyaparli group relatively recently, as a group, confirmed that there should be a change to the description of the claim group in the proceeding to include Daisy; but it is not as simple as that. The amendment proposed is to this effect. 18 At the meetings held on 15 June and 25 July 2018, the claim group and persons on the register of Nyiyaparli People authorised entry in a consent determination of native title under which the native title holders will be described as, "Those Aboriginal people who" - and I will not set this out in full, but, as stated in paragraphs (a), (b) and (c) of para 10 of her affidavit. Significantly, (b) and (c) add to the requirement in (a) that a person be a descendant from one of the apical ancestors, including Daisy, and: (b) identify themselves as Nyiyaparli under Nyiyaparli traditional law and custom and are so identified and accepted by other Nyiyaparli People as Nyiyaparli; and (c) have a connection with the land and waters in the Determination Area in accordance with the traditional laws acknowledged and the traditional customs observed by the Nyiyaparli People. 19 Now, as I have mentioned, there is no question about Daisy not being a Banjima person, and assertions to that effect made in the affidavits of Mr Dhu and the others - suggesting that Daisy is a Banjima person - must, for present purposes, be put to one side. It is accepted that her descendants, including Mr Dhu, may continue to identify as Banjima, but the determination of the Court in the Banjima proceeding that Daisy was not a Banjima person stands. 20 It was a finding of significance; there was no appeal in respect of it. If, as appears to be the case, Mr Dhu and others do not identify as Nyiyaparli People or do not want to identify as Nyiyaparli People, then they will not be within the claim group on the Nyiyaparli application, because they will not satisfy the description of native title holders that I have just referred to, especially in (b) and (c). 21 The simple fact that an apical ancestor of theirs is Daisy does not automatically mean that they are members of the Nyiyaparli claim group. They also have to identify as Nyiyaparli and have a connection under Nyiyaparli traditional law and custom to the area. They are steadfastly asserting in the submissions and the affidavits that they are Banjima People - and do not have Nyiyaparli connections, if I can put it that way. 22 The idea that there might be an inquiry by the National Native Title Tribunal or anybody else into all of this is a little unclear. There is no way that anybody, National Native Title Tribunal or otherwise, can conduct a new inquiry into who Banjima People are, because that is the responsibility of the Federal Court, which has been exercised, and findings have been made and the determination has been made in relation to the Banjima claim. 23 So it only leaves this question about an inquiry into Nyiyaparli. As I pointed out earlier in the course of submissions, this is a decision which is entrusted to the Nyiyaparli claim group under the Native Title Act, and Ms Holloman has indicated, at those meetings in June and July, that the question has been addressed and determined. 24 The question of consultation has been raised by Mr Dhu. It is clear to me that the Nyiyaparli People had to focus on this question and, at that point, without Daisy being a member of the apical group, there was no formal requirement for Mr Dhu and others to be consulted about the making of that decision. 25 However, what is also clear from all the information I have is, as Mr Wright senior counsel for the Nyiyaparli applicant pointed out, there has been much inquiry over many years on that issue as the affidavits that have been filed on both sides indicate. The position is that, even as of about 2009 and 2010, Dr Kingsley Palmer, anthropologist, spoke with the Dhu family and the Derschaws in Port Hedland. This is all referred to in the affidavit of Ms Smith to which I have referred, made 16 August 2018, at paras 27 to 32 and following. Much inquiry was made. 26 Evidence about the Banjima connections of Daisy was led at the Banjima trial and, to repeat myself, the Court has made findings about those matters. The Court also indicated that that research and the opinion of the anthropologist pointed in the direction of a Nyiyaparli identity for Daisy. 27 The parties have been well and truly aware of these possibilities for a number of years and particularly since the 2013 decision in the Banjima case. The single factor which seems to have given rise to this joinder application is a concern that a subsequent agreement - that is, the agreement referred to at para 25 of Mr Dhu's affidavit, subsequent to the Banjima determination, has provided Mr Dhu and the families mentioned, with some interests in relation to payments that arise in the Banjima area, if I can put it generally that way. 28 At para 25, Mr Dhu points out that, after the Banjima native title determination, he, together with other descendants of Daisy, negotiated and concluded an agreement in writing known as the Benefits Management Structure or BMS with (a) Banjima common law holders; (b) Martu Idja Banyjima; (c) BHP Billiton; and (d) Rio Tinto. 29 Now, the concern expressed is, particularly by him, as well as by Ms Smith, that if Daisy's name remains on the consent determination in the Nyiyaparli matter, that could prejudice the payments that they receive under that agreement. It is very difficult to form a conclusion that that can be so. 30 Mr Kakay has tried to refer to other cultural settings where people in other parts of the world would not want to be misidentified. The Welsh would not want to be described as English, he gave as an example. That might be so, but it is very clear that under what would appear to be the terms of the proposed Nyiyaparli consent determination, mere ancestral connection by Mr Dhu, for example, with Daisy is not enough to make him a Nyiyaparli person. He would have to identify as a Nyiyaparli person. All of the evidence suggests that he does not do so. 31 Additionally, whilst I have not allowed an adjournment to enable more to be put in about these agreements, the fact is that this is an issue that should have been directly addressed if it is in fact the case that anything involving the name Daisy in the Nyiyaparli claim would see the cessation of payments under the agreement to which Mr Dhu refers at para 25 of his affidavit. 32 In fact, none of the interlocutory applicant's affidavits suggest any such automatic result. It is a concern that, as Ms Smith put it, the Banjima common law holders will point to the Nyiyaparli native title determination to exclude her and other Daisy descendants from benefitting under the charitable trust programs, and escalate what is now an (asserted) emerging trend of depriving of them of their fair, just and equitable rights and interests through the distributions of the Banjima charitable trust programs. 33 It has to be said, as senior counsel for the Nyiyaparli applicant did say in submissions, that if Mr Dhu and Ms Smith and others have interests and rights under those trusts, then they are more properly directed to the trustees of that trust. 34 The Court, therefore, on analysis of what is happening here, is unable to share the concern that the inclusion by the Nyiyaparli applicants of Daisy as one of their apical ancestors for the purpose of a consent determination will have, or at least on the balance of probabilities can have, anything like the effect Mr Dhu asserts. In short, there is not demonstrated before me the type of interest that needs to be demonstrated to satisfy the first limb of s 84(5) of the Native Title Act to enable the joinder of Mr Dhu as a respondent. 35 But taking everything into account that I have just explained, including the fact this application for joinder comes at a very late stage of a proceeding where the question of Daisy's status has been lingering since about 2009 and 2010, and was sharpened by the determination in the Banjima case in 2014, and the conclusion of the agreement referred to by Mr Dhu, and where a consent determination is imminent, I am not satisfied that the interests of justice justify the adding of Mr Dhu as a party to this proceeding. The prejudice to the Nyiyaparli People is simply too great. 36 The joinder of Mr Dhu would be to completely derail that proceeding. He invites, through the offices of the National Native Title Tribunal, what I can consider would be an indeterminate inquiry into anthropological matters. I do not consider an outcome along those lines is indicated in the circumstances of this case. 37 For these reasons I refuse the joinder application. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.