11.64 Some native title proceedings involve very large numbers of respondents. In the 2013–2014 reporting year alone, the Federal Court dealt with 781 party applications under s 84(3), and in the 2012–13 reporting year there were 982 party applications under s 84(3). Over the five year period 2009–2013, 220 applications for joinder were made to the Court under s 84(5) after the relevant notification period.As at 31 May 2013, the average number of respondents in Western Australian native title cases was 21.Claims made over geographically large areas, particularly if those areas are relatively closely settled, are likely to have many respondents.
11.65 Large party numbers can complicate proceedings, slow outcomes and place an administrative burden on courts and on other parties. Cape York Land Council noted its experience of
significant delays and expense incurred because of the behaviour of parties to native title claims, often in circumstances where it is clear that the party’s interests will not be negatively affected by a determination because their interests are protected at law.
11.66 Large party numbers may also make it more difficult for parties to reach an agreement in order for the Court to make a consent determination. As noted earlier, a consent determination under s 87 of the Act requires the agreement of all parties to proceedings. As the number of parties increases, it may become more difficult for all parties to reach an agreement. This problem may be mitigated, to some extent, by the possibility of a consent determination under s 87A, which does not require the consent of all parties. A consent determination under s 87A may be made over a part of the claim area, which may allow parties to reach agreement on particular parts of the claim area even if disagreement remains about other parts.
11.67 As noted above, a native title determination may affect the interests of a large number of persons, and it is important that persons who may be affected are given sufficient opportunities to represent their interests in proceedings. This point was made by the Law Council:
If a party with a substantive interest in relation to that land stands to have that interest adversely affected, then they should be entitled as a matter of procedural fairness to be heard in relation to it.
11.68 Reforms that reduce the number of parties may be undesirable if they result in a person not having a real opportunity to participate in proceedings. The ALRC considers reform is desirable if it leads to increased efficiencies for parties or the Court without restricting access to justice.
11.69 The existing powers of the Federal Court allow the Court to reduce many of the negative impacts that may result from large party numbers. Watson v Western Australia (No 3) (‘Watson (No 3)’) provides an example of the way in which orders may be moulded to ensure that a person seeking joinder has an adequate opportunity to participate. Gilmour J directed that a respondent’s ‘participation in the proceeding be limited to leading evidence and making submissions in respect of the matters listed in ss 225(c) and (d) of the NTA’.
11.70 In Akiba on behalf of the Torres Strait Regional Seas Claim People v Queensland (No 1) the Court refused an application for joinder by a local council under s 84(5), taking into account four factors, including the ‘very significant and largely unexplained delay in bringing the motion for joinder’. Other relevant factors included: the ‘theoretical and abstract and limited character of the interests relied upon’; that the state respondent could ‘be expected adequately to represent the kinds of interests which have been identified and relied upon in this case’; and that the joinder applicant’s interests were otherwise sufficiently protected, since any ‘native title determination will inevitably be expressed as subject to the valid laws and delegated laws’ of the state respondent.
11.71 Such examples suggest that the Court’s existing discretion to manage the participation and joinder of parties are sufficient to avoid undue burdens on other parties while ensuring access to justice. The ALRC therefore considers that it is unnecessary to introduce legislative reforms.
Federal Court of Australia, ‘Annual Report 2013–2014’ 141.
Figures provided by the Federal Court of Australia, December 2013.
Justice Michael Barker, ‘Innovation and Management of Native Title Claims: What Have the Last 20 Years Taught Us?’ (Paper Presented at National Native Title Conference, Alice Springs, 3–5 June 2013) 11.
Cape York Land Council, Submission 7.
If a consent determination is made under s 87A, the application will be taken to have been amended to reduce the area of land or waters covered in the application: Native Title Act 1993 (Cth) s 64(1B).
Law Council of Australia, Submission 64.
Watson v Western Australia (No 3)  FCA 127 (24 February 2014).
Akiba on behalf of the Torres Strait Regional Seas Claim People v Queensland (No 1)  FCA 1102 (18 August 2006) .