Late joinder

11.118         Several stakeholders noted the particular impact that may be caused by late joinder. For example, Frith and Tehan submitted that late joinder may present a barrier to justice where

the joinder confounds the legitimate expectations of the other parties involved in the proceedings that the matter will go to trial or be subject to a consent determination on a particular date, where they have worked to achieve that end over a long time.[152]

11.119         In certain cases, however, an application for late joinder may be justified or unavoidable. The NSW Aboriginal Land Council, for example, noted a number of reasons why it may be difficult or impossible for parties to join until later in proceedings. These reasons include, for example, limited resources, remoteness, and the possible lack of awareness of native title proceedings and their potential impact on interests held (or claimed) under the Land Rights Act 1983 (NSW), until the proceedings are well advanced.[153]

11.120         Several stakeholders noted that it may be difficult for a third party to determine in advance whether that person’s interests will be affected by a particular native title determination, and that a third party’s interests in the claim area may change over the course of proceedings.[154] AMEC noted that a person’s interests may change when the person acquires, transfers, or surrenders an interest, or when an interest expires.[155]

11.121         The ALRC considers that the existing powers of the Court are sufficient to limit the negative impact that late joinder may have on other parties in proceedings, while recognising that late joinder may in some cases be in the interests of justice.[156] Examples of the Court exercising its existing powers to limit the negative impact of late joinder can be found in Watson (No 3) and Watson v Western Australia (No 5) (‘Watson (No 5)’).[157] In Watson (No 3), discussed above, a party was joined late in proceedings, but its participation was limited to matters arising under ss 225(c) and (d). That party was later dismissed in Watson (No 5) after it subsequently indicated it would, apparently without basis, refuse its consent to a consent determination. In reaching the decision to dismiss this party, Gilmour J had regard to a range of matters, such as:

  • the purpose behind the Native Title Act, being to encourage the resolution of native title claims through conciliation and negotiation;

  • the time, money, and other resources which had been invested in the application and which would be required if the consent determination were delayed;

  • the inconvenience, anxiety and stress on members of the claim group if the consent determination were not to proceed; and

  • the proximity of the remaining parties to reaching settlement.[158]

11.122         The ALRC notes that the test recommended in Recommendation 11–3 for claimants or potential claimants seeking joinder—whether the person seeking late joinder can demonstrate a ‘clear and legitimate objective’ to be achieved by joinder—may also be a useful test where any person seeks late joinder.