Joinder of claimants and potential claimants
Proposal 11–2 Section 84(5) of the Native Title Act should be amended to clarify that:
(a) a claimant or potential claimant has an interest that may be affected by the determination in the proceedings; and
(b) when determining if it is in the interests of justice to join a claimant or potential claimant, the Federal Court should consider whether they can demonstrate a clear and legitimate objective to be achieved by joinder to the proceedings.
11.39 Indigenous persons seeking to become respondent parties have consistently presented in cases concerning s 84(5) or its antecedents. As noted in the Issues Paper, there appear to be three types of situations represented:
- 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 members of the claim group, but that they have been excluded from, or not included in, the claim group; and
- a person (or persons) is a member of a competing claim group.
11.40 Allowing claimants or potential claimants to join proceedings, in appropriate circumstances, is an important part of ensuring access to justice. In Bidjara People (No 2) v Queensland, Ryan J noted that, where members of a claim group were not satisfied with the authorisation of the applicant, ‘it would also lead to injustice if the dissentient members were thereafter denied a voice in the determination of the claim’. Stakeholders also noted the importance of claimants and potential claimants being able to join proceedings, in appropriate circumstances, under s 84(5). The Department of Justice, Victoria submitted that
joinder as a party to a native title proceeding by persons with a native title interest remains one of a fairly limited number of avenues for disaffected or competing claimants or native title parties to seek to have their interests taken into account.
11.41 Proposal 11–2 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. This would, in turn, clarify that a claimant or potential claimant with such an interest could be joined under s 84(5). Proposal 11–2 would codify a test, applied in Barunga v Western Australia and in Far West Coast Native Title Claim v South Australia (No 5), to determine whether a member of the claim group could be joined as a respondent. This test comprises three elements:
(a) whether the person has an interest;
(b) whether the interest may be affected by a determination in the proceedings; and
(c) whether, in any event, in the exercise of its discretion the Court should join the person as a party.
11.42 In Far West Coast [No 5], Mansfield J stated that 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.
11.43 However, as noted by Mansfield J in Starkey v South Australia, 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’.
11.44 Proposal 11–2 would also require that the Federal Court consider whether the claimant or potential claimant has a clear and legitimate objective in joining. This requirement would limit joinder of claimants or potential claimants who join for uncertain, frivolous or vexatious reasons. The joinder of a claimant or potential claimant who does not have a clear and legitimate objective would be likely to add time and cost burdens to other parties, with little benefit to the joined party.
11.45 It is possible that this proposal would result in an increase in intra-indigenous disputes in native title proceedings. However, existing case management powers of the Court (including, for example, the dismissal power under s 84(8)) may alleviate any difficulties in this regard.
Proposal 11–3 The Native Title Act should be amended to allow organisations that represent persons, whose ‘interest may be affected by the determination’ in relation to land or waters in the claim area, to become parties under s 84(3) or to be joined under s 84(5) or (5A).
11.46 Proposal 11–3 addresses the problem of large numbers of respondent parties in native title proceedings by allowing representative organisations to become parties or be joined. These organisations may themselves have no interest, proprietary or otherwise, in the claim area, and therefore may be unable to join under s 84(3), (5) or (5A). However, the members they represent may have interests that would be affected by the outcome of the proceedings. Allowing the representative organisations to participate would provide a means for these interests to be represented in proceedings, without the need for each member to participate. This would ensure that the interests of a wide range of persons were represented in proceedings—in accordance with Guiding Principle 2—while also helping to reduce party numbers—in accordance with Guiding Principle 3.
11.47 This proposal is not limited to native title representative bodies (NTRBs). Organisations representing other persons or groups—such as recreational users of the claim area or industry—would also be able to become parties under s 84(3), (5) or (5A).
11.48 As well as reducing the numbers of parties—and hence delays and expenses—in native title proceedings, Proposal 11–3 would relieve persons who are represented by an organisation from the need to actively participate in proceedings, which may be unfamiliar and complex. The represented persons would instead be able to rely on the organisation to represent their interests.
11.49 Queensland South Native Title Services suggested that representative bodies should have automatic party status, as state and territory governments currently have under s 84(4). Proposal 11–3 would not provide such an automatic right. However, if a representative body could demonstrate an appropriate interest it would, under Proposal 11–3, be able to participate under either s 84(3), (5) or (5A).
11.50 Proposal 11–3 may have the secondary effect that a person whose interests are likely to be represented by a representative organisation—whether or not that person is a member of the organisation—would not be allowed to join proceedings. This would, of course, depend on the specific circumstances.
11.51 The ALRC is also seeking comment on whether it would be appropriate for the Native Title Act to provide that an Aboriginal Land Council with an inchoate interest in land within the claim area should be allowed to join proceedings. Such an inchoate interest may arise where a claim is made, but not yet determined, under the Aboriginal Land Rights Act 1983 (NSW). Such a provision may address the need, noted by the NSWALC, for Aboriginal Land Councils to join late in proceedings in order to represent their interests.
See, eg, Davis-Hurst on behalf of the Traditional Owners of Saltwater v Minister for Land and Water Conservation (NSW)  FCA 541 (4 June 2003); Isaacs on behalf of the Turrbal People v Queensland  FCA 828 (25 July 2011); Far West Coast Native Title Claim v South Australia (No 5)  FCA 717 (30 July 2013).
Bidjara People (No 2) v Queensland  FCA 324 (7 April 2003) .
Department of Justice, Victoria, Submission 15. The value of late joinder under s 84(5) to disaffected claimants was also noted by, for example, AIATSIS, Submission 36; Just Us Lawyers, Submission 2. The needs of disaffected claim group members to participate in proceedings may also be met, to some extent, by reforms to the authorisation provisions of the NTA, as proposed in Ch 10.
Barunga v Western Australia (No 2)  FCA 755 (25 May 2011) ; Far West Coast Native Title Claim v South Australia (No 5)  FCA 717 (30 July 2013) .
Far West Coast Native Title Claim v South Australia (No 5)  FCA 717 (30 July 2013) .
Starkey v South Australia  FCA 456 (9 May 2011) .
This element of Proposal 11–2 reflects that statement of Mansfield J 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’: Far West Coast Native Title Claim v South Australia (No 5)  FCA 717 (30 July 2013) .
See, eg, Graeme Neate, ‘“It’s the Constitution, It’s Mabo, It’s Justice, It’s Law, It’s the Vibe”: Reflections on Developments in Native Title since Mabo v Queensland [No 2]’ in Toni Bauman and Glick Lydia (eds), The Limits of Change: Mabo and Native Title 20 Years On (AIATSIS, 2012) 188, 205–206. Also see Ch 10.
Cape York Land Council submitted that wider use of the dismissal power may be useful in this respect: ‘Indigenous parties seem to be increasing in number in Cape York matters. It may be difficult for NTRBs to seek to remove Indigenous parties, particularly as there may be a perceived conflict, and it is usually a last resort. CYLC suggests that the Court could be more proactive in that regard’: Cape York Land Council, Submission 7.
Queensland South Native Title Services, Submission 24.
NSW Aboriginal Land Council, Submission 25.