Worimi Local Aboriginal Land Council v Minister for Lands for the

INTRODUCTION 1 The Worimi Local Aboriginal Land Council ('the Land Council'), previously represented by an administrator, Mr Hillig, seeks a declaration that no native title exists over land at Port Stephens, being Lot 576 in Deposited Plan 48823 ('the Land'). By notice of motion filed on 23 August 2005, Mr Gary Dates, also known as Worimi, sought to become a party to the proceedings. Worimi has previously filed two claimant applications for a determination that native title exists over the Land. I struck out each application pursuant to s 84C of the Native Title Act 1993 (Cth) ('the Act') for failure to comply with s 61 of the Act (Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115; Worimi v Minister for Lands for the State of New South Wales [2006] FCA 1770). Worimi had previously indicated that he intended to file a further claimant application. That has not occurred and there is no present suggestion of any intention on Worimi's part to do so. By an amended notice of motion filed on 30 March 2007, Worimi seeks to be joined as a respondent to this non-claimant application under s 84(5) of the Act. The application for joinder is opposed by the Land Council. 2 The non-claimant application was filed on 31 December 2004 and public notification given pursuant to s 66(3)(a) of the Act on 9 March 2005. That notification included a statement that any person wishing to be party to the proceedings should inform the Court of his or her intention to do so by filing a Form 5 Notice by 8 June 2005. Worimi failed to do so. As a consequence, he requires leave of the Court to be joined (s 66(10)(c) of the Act). 3 Section 84(5) of the Act presently 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.' The words 'and it is in the interests of justice to do so' were inserted into s 84(5) by amendments commencing on 15 April 2007 (Item 5 of Sch 2 to the Native Title Amendment Act 2007 (Cth) ('the Amendment Act')). At the hearing, the parties made submissions as to the interests of justice in the context of Worimi's application for joinder. It was later agreed, however, that the amendment applies only in respect of proceedings commenced on or after 15 April 2007 (Item 78 of Sch 2 to the Amendment Act). As already noted, these proceedings and the amended notice of motion for joinder were filed prior to that date. 4 The matters for consideration under s 84(5) of the Act, as in force, in respect of Worimi's motion are: (1) Does Worimi have an interest within the meaning of s 84(5) of the Act? (2) May that interest be affected by a determination in the proceedings? (3) In any event, should the Court exercise its discretion to join Worimi as a respondent? (Akiba v Queensland (No 2) (2006) 154 FCR 513 at [32] not the subject of comment by Gyles and Sundberg JJ on appeal in Gamogab v Akiba [2007] FCAFC 74). 5 The Land Council relies on the factual findings made in Hillig (No 2) and Worimi. Worimi, who is represented by Mr Austin of counsel pro bono, relies on Worimi's affidavit in support of this amended notice of motion for joinder. Mr Austin declined to rely on earlier affidavits filed by Worimi in support of his claimant applications. He submits that the previous proceedings are not relevant but does accept that, to the extent that findings of fact were made in respect of those claimant applications, those findings of fact can be taken into account for this application. He does not accept, however, that the procedural history is relevant to the exercise of the discretion to refuse joinder under s 84(5) of the Act. In my opinion, that history is relevant. 6 Worimi's affidavit in support of this application does not differ in any substantial way in the characterisation and description of the native title rights and interests he asserts, from the evidence in support of the second claimant application, the subject of the decision in Worimi. In particular and in summary Worimi says that, for all of his life, he has had an association and connection with the Land and that he believes that he and his family hold native title rights and interests in the Land under their traditional laws and customs, as taught by his ancestors. Worimi learned of those laws and customs from his father, his father's mother and his father's six brothers. Those customs and Worimi's description of his connection with the Land are as described in Worimi at [10] and [11]. He says that he has told his daughters what he knows about the laws and customs of the Land, including those customs relating to what he describes as the women's site. 7 Worimi says that he is a custodian of the Land, that role having passed to him on his father's death, as the eldest son. He asserts that other Worimi people, in particular Worimi women, whom he would have expected to have been taught about the women's site, have not been so taught. He says that 'I now believe that me and my family may be the only Worimi people who were given the native title rights and interests in the Land under traditional laws and customs'. 8 For the reasons set out in Worimi at [42]-[51], the second claimant application based upon Worimi's evidence and assertions was struck out. The claim did not fulfil the requirements of s 61(1) of the Actand could not succeed. In Worimi, persons who held the common or group rights and interests comprising the claimed native title according to the traditional laws and customs asserted by Worimi were not included in the native title claim group identified in the application. That identified claim group was Worimi and some members of his family (at [46]-[47]; [51]). Further, the claimant application was not authorised in accordance with s 251B of the Act (at [54]). 9 Worimi asserts that, as the eldest male, he is authorised to 'speak…about dealing with matters that relate to our traditional country' by all the persons on whose behalf a claimant application could be made to deal with the Land. Those persons are said to comprise his immediate family, who have "authorised" him as the eldest male of the family. Worimi's mother Beryl Mildred Dates, his sister Debbie Dates, his wife Cynthia Dates and his daughters have now filed affidavits supporting Worimi's right to 'bring [a] native title application and deal with the matters arising under [such an] application' on their behalf. They state a belief that they have native title rights and interests in the Land under traditional laws and customs, as taught by older family members. Worimi also says that he seeks joinder 'on behalf of all of my sisters and their daughters'. He asserts that all of his sisters support this application. On Worimi's present description of the persons who hold native title rights and interests in the Land, his five other sisters and their children and, indeed, any daughters of his brother, would be part of any claimant group, said to include the women of his immediate family. To the extent that that "claim group" includes family members who are not women, Worimi's brother Kelvin Dates would also be included. There is no evidence of those persons having authorised Worimi to bring a native title claim. Worimi was not cross-examined. 10 A holder of a native title interest in the Land is entitled to be joined to the proceedings (s 84(5) of the Act; Munn v State of Queensland [2002] FCA 486). A claim to native title is ordinarily, of itself, sufficient to justify joinder under s 84(5) of the Act (Munn at [8]). While the interests relied upon for joinder need not be proprietary or legal or equitable in nature, they must be 'not indirect, remote or lacking substance…the interests must be capable of clear definition' (Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 at [7]-[8] per Black CJ) ('the Byron test'). The Byron test does not recognise interests of an emotional kind (Byron at [8] per Black CJ). The nature and content of the right to become a party to proceedings for a determination of native title suggest that the interests asserted must be of such a character that they may be affected in a demonstrable way by the determination (Byron at [7] per Black CJ). 11 In Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315, Branson J ordered the joinder of Mr Kemp, who did not wish himself to advance a claim for native title, to a proceeding for a determination of native title. Mr Kemp's interest as a descendant of the Pirripaayi people, was to avoid the making of a determination by the Court that discounted the traditional connection which he believed to exist between the Pirripaayi people and the land. Her Honour (at [28]) was of the view that this was an interest that satisfied the Byron test and was relevantly affected by the determination (at [27]). Justice Branson contrasted that interest with Mr Kemp's interest in establishing and maintaining the integrity of his own research and dissemination of his knowledge of Pirripaayi language and culture. The latter interests were characterised as "indirect" interests which fell outside the Byron test (at [27]).