Consideration
77 In my view, there are numerous difficulties with the Crofts' joinder applications.
78 The starting point is the delay in making the applications. As outlined earlier, the legislative scheme in s 84 provides a mechanism by which native title claims are notified and persons with an interest in the claim area are able to be joined as parties by filing a notice with the Court. That mechanism facilitates the just determination of claims in a timely manner. While applications to be joined are able to be made at a later date, the Court may only grant the application if satisfied it is in the interests of justice to do so.
79 In the present case, the delay in making the applications is extreme. The principal claims, Wirangu 2 and Nauo 1, were each notified by the Native Title Registrar with a notification date of 7 February 2001, more than 20 years ago. The other substantive claim (in terms of claim area), Nauo 2, was notified by the Native Title Registrar with a notification date of 20 September 2017, more than four years before the filing of the joinder applications.
80 The prejudice to the applicants by the delay is substantial. The parties have indicated that all of the claims, save for Nauo 2, are likely to come before the Court for consent determinations in the very near future. The claims have been in progress for a very long time. The fact that they have now progressed to the stage of consent determinations is undoubtedly the result of hard work by all the parties, acting in accordance with the objectives of the Native Title Act. If the Crofts had been joined as parties at an earlier stage, they would have been able to participate in those negotiations. Their joinder at this very late stage has the real potential of derailing the hard work done by the parties and potentially requiring further negotiations towards a consent determination or, in a worst case, a contested trial of the claims.
81 Mr Croft's explanation for the delay in making the joinder applications is set out in paras 18 to 22 of his affidavit, where he states that:
(a) he did not apply to join the claims earlier because he did not know how to become a party;
(b) he was not privy to a "native title arrangement" which negated "our" (I infer the Crofts or the Barngarla people more generally) interests in the area in question; and
(c) he believes that "we" (I infer the Crofts or the Barngarla people more generally) have been denied procedural fairness and natural justice in a complicated set of events, anthropological misappropriation and misrepresentation of cultural traditions and connection to country by others, aided by "anomalous procedures that have raised concerns about the probity of the agencies involved".
82 I do not accept that any of those reasons provide a satisfactory explanation, and I consider the reasons disingenuous having regard to the following matters.
83 Mr Croft's father, Henry Croft, and uncle, Barry Croft, were named applicants in the Barngarla application and were closely involved in that claim, which originally covered the areas that are the subject of the Wirangu 2 and Nauo 1 claims. In 1999, after the Wirangu 2 and Nauo 1 claims were filed, the Barngarla claimants withdrew their claim in respect of the area the subject of the Wirangu 2 claim. In respect of the Nauo 1 claim area, the Barngarla people also agreed to re-draw the Barngarla claim area so that it did not cover the area the subject of the Nauo 1 claim. This was originally on the condition that the Nauo 1 claim would be re-named the Nauo-Barngarla claim and would be amended to include Barngarla as well as Nauo claimants and to expand the claim group to include descendants of Barngarla apical ancestors (with a reciprocal arrangement in respect of the Barngarla application). That agreement, recorded in the 1999 Memorandum of Understanding between the Nauo and Barngarla claimants, was terminated by the Deed of Termination signed by representatives of both parties in 2010. That Deed reflected a resolution by those with decision-making authority for the Barngarla people (including, relevantly, Barry Croft) to withdraw the Barngarla people's assertion of interests in the Nauo 1 claim area and to remove the Nauo claimants' interests from the Barngarla native title application.
84 While Mr Croft would have been a much younger man in 1999 and the following years, his family was closely involved in the Barngarla claim and the decision to withdraw the claim in respect of the Wirangu 2 and Nauo 1 claim areas. In those circumstances, it is disingenuous for Mr Croft to state that he did not apply to join the Wirangu 2 and Nauo 1 proceedings because he did not know how to do so. I infer that he never turned his mind to joining those proceedings because the elders in his family responsible for making decisions about native title claims at the relevant time, specifically his father and uncle, as members of the Barngarla claim group, had agreed not to contest the Wirangu 2 and Nauo 1 claims.
85 For similar reasons, I place no weight on Mr Croft's evidence concerning the "native title arrangement" which allegedly negated interests in the Wirangu and Nauo claim areas, and the alleged denial of procedural fairness and natural justice. I infer that Mr Croft was referring to the Memorandum of Understanding and Deed of Termination between the Nauo and Barngarla claimants. Mr Croft provided no details regarding his allegations of a denial of procedural fairness and natural justice and he has not adduced any evidence to support such allegations. Further, as Mr Croft acknowledged during the hearing, as a younger man in 1999 he did not have any authority to make decisions or enter into such arrangements on behalf of the Barngarla people.
86 In relation to Nauo 2, the Barngarla claim covered that area. In Croft, Mansfield J concluded that the Barngarla people did not hold native title rights and interests in respect of that area. Again, Mr Croft's family were closely involved in the Barngarla claim and must be taken to be fully aware of the Court's decision, including in relation to the Nauo 2 claim area. At the time that final orders were made in Croft No 2, the Nauo 2 application was filed. That was more than five years ago. Mr Croft did not say that he was unaware of the filing of that claim at the time, and I readily infer that he was aware. Again, I consider it disingenuous for Mr Croft to state that he did not apply to join the Nauo 2 proceeding because he did not know how to do so. I infer that, in the years following the decision in Croft, he never turned his mind to joining that proceeding because the Barngarla people, which included his family, had been unsuccessful in their claim in respect of the Nauo 2 claim area.
87 In February 2020, the Barngarla people filed another native title application in respect of the area the subject of the Nauo 2 claim. One of the named applicants in that application was Mr Croft's uncle, Barry Croft. That application was summarily dismissed by Charlesworth J on 24 December 2020: see McNamara. I infer that Mr Croft was aware of that application and its dismissal, given his family's involvement in the application. I also infer that, following that decision, Mr Croft did not turn his mind to joining the Nauo 2 proceeding as a respondent because of the dismissal of the Barngarla application in McNamara.
88 Ms Croft did not provide any explanation for the delay in making the joinder applications. In para 14 of her affidavit, Ms Croft merely states that she was not party to "a prior native title arrangement which negated our interests in the claim area and west to Haslem". Again, I infer that Ms Croft is referring to agreements by which the Barngarla claim was reduced in size in 1999 so as to remove overlap with the Wirangu 2 and Nauo 1 claim areas. For the same reasons as in respect of Mr Croft, I place no weight on that evidence.
89 The Crofts also made a further submission during the hearing to the effect that the reason for their delay in applying to join the proceedings was that they had believed the State and Commonwealth would oppose the Wirangu and Nauo claims, and when they heard that the proceedings were instead likely to proceed to a consent determination, they applied to join. I do not accept this as a reasonable justification for the Crofts' delay in applying to join the proceedings. Opposition to an application does not in itself give rise to a sufficient interest for joinder under s 84(5). If the Crofts (or other members of their family) did in fact have an interest in the proceedings, they could have applied to join the proceedings many years ago, in which case they would have had the opportunity to participate in discussions with the applicants, the State and the Commonwealth in relation to the Nauo and Wirangu claims.
90 Having regard to the extent and consequences of delay in making the joinder applications, the Crofts bear a significant burden to show that their interests in the claim area are such that the interests of justice favour joinder. In my view, their evidence falls well short of doing so.
91 Mr Croft exhibited to his affidavit the statement of his father, Henry Croft, that was admitted into evidence in the Barngarla proceeding. In that statement, extracts of which are reproduced above, Henry Croft asserts his identity as Barngarla. Nowhere does Henry Croft suggest that he is a member of a "subdivision of the Barngarla" known as "Nauo-Barngarla", or that he was raised by his parents, Harry and Phyllis Croft, as "proud Nauo-Barngarla people", being assertions that are now made by Mr Croft in this application. It can be accepted that, in his statement, Henry Croft asserts native title rights and interests in areas that are the subject of the Wirangu and Nauo claims; however, he consistently does so as a Barngarla person and not in any other capacity.
92 In his affidavit and submissions, Mr Croft expressly states that he is not asserting rights and interests on behalf of the Barngarla people, and is not claiming to represent the Barngarla people. Rather, Mr Croft appears to assert native title interests on two bases: first, that he is a descendant of a Nauo-Barngarla woman, the mother of Harry Croft and Bob Eyles, who was born in the 1850s and is a member of the Nauo-Barngarla people who are a subdivision of the Barngarla people; and second, that the Croft family, and Mr and Ms Croft specifically, have personal rights and responsibilities to parts of the Wirangu and Nauo claim areas.
93 In her affidavit, Ms Croft also expressly states that she is not making the joinder applications on behalf of the Barngarla people. However, unlike Mr Croft, Ms Croft does not claim to be a Nauo-Barngarla person. Rather, Ms Croft asserts her identity as Barngarla, but says that she has individual inherited rights and interests in parts of the Wirangu and Nauo claim areas.
94 The evidence that has been adduced by the Crofts on these applications falls well short of satisfying me that the Crofts have an arguable interest in the Nauo claim areas as Nauo-Barngarla people. While it is not the task of the Court on this application to resolve contested questions of fact, the evidence adduced on behalf of the Crofts fails to establish a factual basis for an arguable interest. The evidence largely consists of assertion and, as noted earlier, lacks coherence in numerous respects. At the core of Mr Croft's assertion of his Nauo-Barngarla identify is his Nauo-Barngarla great-grandmother, whom he identified during the hearing as Granny Nora Croft. The further written submissions provided to the Court the day of the hearing provide some further information about Nora Croft: in particular, that she lived within the Elliston area and later in Venus Bay (both of which are within the Nauo claim areas). Beyond this, there is no information before the Court as to Nora Croft's ancestry or the nature and practical effect of her Nauo-Barngarla identity as it concerns her descendants. While Mr Croft submitted that his father was raised as a proud Nauo-Barngarla person, Henry Croft's statement for the Croft proceeding states his identity as Barngarla and does not refer to a Nauo-Barngarla subgroup, far less his identity as a member of that subgroup. The possibility of subgroups of the Barngarla people was the subject of evidence in the Barngarla claim and considered by Mansfield J in his reasons in Croft (at [101]-[124] and [283]-[304]). Aspects of that evidence were referred to by Mr Croft in his written submissions, but in a selective manner. Justice Mansfield observed that "all the Barngarla witnesses had a definite notion of the "Barngarla people" as a distinct society" (at [265]). While the possibility of a Nauo-Barngarla subgroup was considered in Croft, it had almost no support in the evidence (see at [300]-[303]).
95 As the son of Henry Croft, I accept that Mr Croft is a Barngarla person. So too, I accept that Ms Croft is a Barngarla person. It follows that the Crofts have native title rights and interests as members of the Barngarla people. I also accept, on the evidence presented, that the Crofts have tenable claims to being custodians of particular Barngarla stories. On the evidence before me, I consider that the only tenable claim to native title rights and interests able to be advanced by the Crofts is as members of the Barngarla people, and as persons within that community that have specific responsibilities for certain stories.
96 My conclusion in this regard is reinforced by the inconsistency in the Crofts' stated position in respect of the Nauo and Wirangu claims. While on the one hand, they have submitted that they seek to challenge the definition of the Nauo claim group and to have it expanded, their primary contention appears to remain that all of the country in which the Wirangu and Nauo people assert native title rights and interests is in fact Barngarla country. They reject the Wirangu claims entirely, and submit that the Nauo people are a subgroup of the Barngarla people.
97 In the circumstances described in these reasons, where the Barngarla people chose not to pursue a claim in respect of the Wirangu 2 and Nauo 1 claim areas many years ago, and where the Barngarla claim in respect of the Nauo 2 area was rejected in Croft, and having regard to the prejudice that would be occasioned to the applicants if the joinder applications were to be allowed, I consider that it is contrary to the interests of justice to allow such claims to be pursued by the Crofts. That conclusion is only fortified by the fact that, in making their applications, the Crofts have not adduced any evidence that their applications are supported by the Barngarla people. To the contrary, the Crofts have made clear in their affidavits and submissions that, in making these applications, they are not representing the Barngarla people.