Joinder of claimants and potential claimants

11.103         The ALRC recommends that the Native Title Act be amended to clarify that a member of a claim group (claimant) or a person who claims to hold native title but who may not have made an application in respect of that claim (potential claimant) has an interest that may be affected by the determination in native title determination proceedings, and so may join proceedings under s 84(5).

11.104         The ALRC also recommends that the Native Title Act be amended to require that, in exercising its discretion under s 84(5), the Court should consider whether the claimant or potential claimant can demonstrate a clear and legitimate objective to be achieved by joinder to the proceedings. This requirement will not allow the joinder of persons with vague or unspecified purposes while upholding the principle of access to justice. The ALRC considers that the recommendation will promote efficient native title claims proceedings without introducing unnecessary barriers to justice.

11.105         Claimants and potential claimants have consistently presented in cases concerning s 84(5) or its antecedents.^[137] In these cases, a claimant or potential claimant seeks to become a respondent party to proceedings. This typically arises in one of the following situations:

• a member (or members) of the claim group disputes matters, such as who has been authorised as the applicant, or the way in which a claim is being conducted;

• a person (or persons) asserts that they are a member of the claim group, but that they have been excluded from, or not included in, the claim group; or

• a person (or persons) is a member of a competing claim group or potential claim group, and is seeking to represent their claimed native title interests.

11.106         Recommendation 11–3 comprises two limbs. The first limb would make clear that a claimant or potential claimant in the claim area has an interest that may be affected by a native title determination for the purposes of s 84(5). This limb of the recommendation reflects existing case law. As stated by Mansfield J in Far West Coast Native Title Claim v South Australia (No 5) (‘Far West Coast (No 5)’), it is

clear … that native title rights and interests (and similar traditional rights-based interests) have been held in some circumstances to be interests capable of satisfying the s 84(5) criteria, and that those native title rights and interests need not have been certainly established in order to qualify under s 84(5) as a person whose interests may be affected by a determination.^[138]

11.107         However, earlier cases differed on the question of whether a member of the claim group would not be able to join as a respondent.^[139] Recommendation 11–3 would make clear that a member of a claim group has an interest that may be affected for the purposes of s 84(5).

11.108         The Court has previously joined potential claimants to proceedings under s 84(5). In Bonner on behalf of the Jagera People #2 v Queensland (‘Jagera #2’), for example, several persons were joined on the basis that they ‘claimed to have native title rights and interests in various parts of the land or waters covered by the Jagera #2 claim that may be affected by a determination of that claim, sufficient to allow them to be joined as respondents to the Jagera #2 proceedings under s 84(5) of the Act’.^[140] Whether the evidence for a potential claim is sufficient to permit joinder as a potential claimant will depend on the circumstances, but a prima facie case is necessary and sufficient.^[141]

11.109         The second limb of Recommendation 11–3 would require that the Federal Court consider whether a claimant or potential claimant has a clear and legitimate objective in joining when determining whether or not it is in the interests of justice to join that claimant or potential claimant. The joinder of a claimant or potential claimant who does not have a clear and legitimate objective—for example, where the person sought joinder to disrupt an application or in the mistaken belief that joining as a respondent provided an avenue for having a native title claim heard—would be likely to add time and cost burdens to other parties.

11.110         The second limb of Recommendation 11–3 reflects the statement of Mansfield J in Far West Coast (No 5) that if a joinder applicant ‘can point to a clear and legitimate objective that he or she hopes to achieve by being joined, then it will generally be appropriate to exercise the Court’s discretion in favour of the application’.^[142]

11.111         The Federal Court in Barunga v Western Australia (No 2) noted a number of factors relevant to the exercise of its discretion to allow several members of a competing claim group to join proceedings:

(a)        Proceedings for a determination of native title are proceedings in rem: they bind non-parties. It is also fundamental that an order which directly affects a third person’s rights or liabilities should not be made unless the person is joined as a party …

(b)        Consideration of the rights and interests of the party joined would lead to a more accurate definition of the native title rights and interests claimed, including by limiting the scope of the rights and interests of an applicant …

(c)        A party joined would also be able to protect the native title rights and interests they claim to hold from erosion, dilution, or discount by the process of the Court determining the claims of an applicant …

(d)        Whether the interest asserted can be protected by some other mechanism …

(e)        Whether the applicant for the determination would be prejudiced if the party applicant is joined …

(f)        The history of the proceedings.^[143]

11.112         An applicant for joinder who demonstrated a clear and legitimate objective might nevertheless be denied joinder due to other considerations—for example, where the interests of the applicant for joinder could be protected through other mechanisms. The ALRC considers that whether the person seeking joinder can demonstrate a clear and legitimate objective should be given significant weight, and notes the view of Mansfield J in Starkey v South Australia that the

discretion to join [a member of the claim group] 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.^[144]

11.113         Many stakeholders supported this approach.^[145] Frith and Tehan said:

Requiring the Federal Court to consider whether the claimant or potential claimant has a clear and legitimate objective in joining is likely to reduce the number of parties involved in, and the cost and time of, native title proceedings.^[146]

11.114         The recommended reform was opposed by North Queensland Land Council (NQLC) and QSNTS. NQLC submitted that, since the claim group authorises its applicant, ‘there should be no reason for a member of the claim group to join as a respondent party in relation to a native title interest’.^[147] However, given the problems that may sometimes arise in the authorisation process,^[148] the ALRC considers that there may be circumstances in which it is in the interests of access to justice to allow a claimant to join as a respondent.

11.115         QSNTS expressed concerns about the inclusion of potential claimants, suggesting instead that the Native Title Act should be amended to provide that only persons who have filed ‘a properly authorised native title claim in the Federal Court (which overlaps the application) have sufficient standing to become parties’.^[149] QSNTS noted the successful joinder application in Jagera #2,^[150] and submitted that ‘joining a party who merely asserts an interest does little to create an avenue for any real resolution of the party’s claims’. Further, the ‘likely prejudice to the Applicant in a proceeding where a “potential claimant” is given standing (and the ability to stymie a consent determination) greatly outweighs any prejudice to the rights of a potential claimant’.^[151]

11.116         The ALRC acknowledges that joinder of applicants and potential applicants may introduce difficulties into proceedings. Greater numbers of parties in proceedings may increase times and costs for all parties, and once a claimant or potential claimant is joined they may be in a position to prevent an agreement being reached for a consent determination. Nevertheless, the ALRC considers that it will, in some circumstances, be in the interests of justice for claimants and potential claimants with clear and legitimate objectives to be able to participate in proceedings.

11.117         The second limb of Recommendation 11–3 reduces the possibility of a claimant or potential claimant joining proceedings to disrupt or prevent a determination of native title. While the Court may currently join a claimant or potential claimant, the second limb of Recommendation 11–3 introduces an additional requirement for a claimant or potential claimant seeking joinder: an applicant for joinder who does not show a clear and legitimate purpose in joining may have their application dismissed. This requirement is not intended to apply to other parties seeking joinder under s 84(5)—a recreational society need not show that it has a clear and legitimate objective to be achieved by joining proceedings. However, the ALRC considers that this additional requirement is appropriate. Members of a claim group who seek to join as respondents are, by definition, already involved in proceedings, and so their joinder as respondents must be well justified—particularly given concerns such as those expressed by NQLC and QSNTS. Potential claimants who seek to join as respondents have an alternative avenue for representing their interests—they may bring a native title claim—and so their joinder as respondents must be particularly well justified; especially if it is an application for late joinder.