Overview of the party and joinder provisions

11.4       Section 84 of the Native Title Act includes provisions under which a person may become a party to native title proceedings.

11.5       Most persons, other than the applicant and the Crown, become parties to native title proceedings by virtue of s 84(3). Section 84(3)(a) provides that persons falling within certain categories can become a party to native title proceedings by notifying the Federal Court that they wish to do so within a specified time period. These categories include, for example, registered native title claimants, native title bodies corporate, persons with a registered proprietary interest, the Commonwealth Minister, local government bodies, and any other persons who claim native title in relation to land or waters in the claim area.

11.6       The joinder provision, s 84(5), allows the Federal Court to

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.^[1]

11.7       If the threshold questions of identifying whether there is an interest^[2] and whether that interest may be affected by a determination, have been resolved in favour of the party making the application, the Court then considers whether it should exercise its discretion to join the person as a party.^[3] This discretionary power allows the Court to join as a party to proceedings a person who has not, or could not, become a party to proceedings under s 84(3).^[4] Legal action may be well advanced when a person seeks to become a party under s 84(5) (‘late joinder’).

11.8       In exercising its discretion to join a person as a party to proceedings, the Court must first be satisfied that the person’s interests may be affected by a determination. The meaning of the term ‘interests that may be affected’ was considered in Byron Environment Centre Inc v Arakwal People.^[5] Those interests may include a ‘special, well-established non-proprietary connection with land or waters’, but must not be ‘indirect, remote or lacking substance’.^[6] They must be ‘capable of clear definition and … be affected in a demonstrable way by a determination in relation to the application’.^[7] An interest in using the claim area for bushwalking, hunting or camping, for example, would not appear to be sufficient for joinder under s 84(5).^[8]

11.9       Section 84(5A) provides an additional discretionary power for the Federal Court to join a person whose interests may be affected by a determination because the person has a public right of access over, or use of, an area of land covered by the application. This section allows the joinder of many persons who would not be able to become parties to proceedings under s 84(3) and who would not be held to have a sufficient interest in the claim area following Byron.

11.10   Section 84(8) allows the Federal Court to dismiss a party. Under s 84(9), the Court is to consider dismissing a party if that party’s interests in the claim area arise merely because of a public right of access and if the person’s interests are adequately represented by another party, or if the person never had (or no longer has) an interest that may be affected by a determination in the proceedings.

11.11   Some stakeholders suggested that the party and joinder provisions in s 84 were operating adequately, and that reform of these provisions was unnecessary. The South Australian Government, for example, considered

the current powers of the Federal Court to be adequate whereby the interests of justice can be taken into account. The jurisprudence that has developed in this area over the last ten years should not be undermined by making changes to the underlying provisions.^[9]

11.12   Other stakeholders expressed concerns about various aspects of the party provisions, such as:

• the potential for costs and delays arising from participation of non-Crown respondents;^[10]
• the possible impact on parties when a new party is joined late in proceedings;^[11]
• the need for clarity and certainty around the party provisions;^[12]
• the impact of parties participating in aspects of proceedings not affecting their interests;^[13] and
• the desirability of mechanisms allowing parties to limit their involvement.^[14]

11.13   This chapter considers possible reforms to the party and joinder provisions that may address such concerns. In making these proposals, however, the ALRC recognises that the party and joinder provisions overall appear to be operating satisfactorily in many respects. The discussion in this chapter reflects Guiding Principle 2—that any reforms should continue to allow a wide range of interests to be represented in native title proceedings—and Guiding Principle 3—that any reforms should promote timely and practical outcomes for parties to a native title determination through effective claims resolution, while seeking to ensure the integrity of the process.

The importance of representing a wide range of interests

11.14   Native title proceedings differ from many other types of legal proceedings in that very large numbers of parties can be involved and affected by the outcome of the proceedings. Native title proceedings bring before the Court ‘all parties who hold or wish to assert a claim or interest in respect of the defined area of land’, in order to

bring about a decision which finally determines the existence and nature of native title rights in the determination area, and which also identifies other rights and interests held by others in respect of that area. As the determination is to be declaratory of the rights and interests of all parties holding rights or interests in the area, the determination operates as a judgment in rem binding the whole world.^[15]

11.15   Stakeholders and commentators have noted the importance of the Native Title Act continuing to provide for a wide range of persons with interests in a claim area to participate in native title proceedings. Perhaps the most important reason is that the in rem nature of a native title determination means a determination will affect the interests of a large number of persons. It is important that these persons are provided with an opportunity to represent their interests.^[16] Wide community involvement in native title proceedings may also contribute to general community support and acceptance of the native title process.^[17]

The effect of large numbers of parties

11.16   Some native title proceedings involve very large numbers of respondents. In the 2012–2013 reporting year alone, the Federal Court dealt with 982 party applications under s 84(3),^[18] while 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.^[19]As at 31 May 2013, the average number of respondents in Western Australian native title cases was 21.^[20]Claims made over geographically large areas, particularly if those areas are relatively closely settled, are likely to have many respondents.

11.17   Large party numbers can complicate proceedings, slow outcomes and place an administrative burden on courts and on other parties. This is a particular concern where increased costs and delays are caused by the participation of parties whose interests are unlikely to be affected by the native title determination,^[21] or the participation of parties in aspects of the proceedings which do not bear on their interests.

11.18   However, the ALRC considers that large party numbers need not, in and of themselves, present a problem, provided that the involvement of large numbers of parties in proceedings does not result in undue burdens on parties or the Court. Reforms should not seek to reduce party numbers if this has the result of unduly limiting the ability of persons to represent their interests in proceedings.

Late joinder

11.19   Several stakeholders noted the particular impact that may be caused by the joinder of a party to proceedings that are well advanced. For example, Angus Frith and Associate Professor Maureen 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.^[22]

11.20   In many cases, however, an application for late joinder may well be justified. The NSW Aboriginal Land Council (NSWALC), 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 resourcing, remoteness, and the possible lack of awareness of native title proceedings and their potential impact on interests held (or potentially to be held) under the Land Rights Act 1983 (NSW), until the proceedings are well advanced.^[23] Several stakeholders noted that it may be difficult for a third party to determine in advance whether their 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.^[24]

11.21   It should also be noted that the Federal Court has an existing power to limit the participation of a party joined under s 84(5) to matters relevant to the party’s interests as set out in s 225(c) and (d).^[25] These matters include:

• the nature and extent of interests (other than native title rights and interests) in relation to the determination area; and
• the relationship between native title and non-native title rights and interests in relation to the determination area.

11.22   This discretion appears to have been effectively exercised to reduce the impact of late joinder on other parties in proceedings, taking account of considerations such as whether the interests of the person applying for joinder late in proceedings can be protected in other ways,^[26] or any delay in making the joinder application.^[27]

State and territory parties

11.23   Section 84(4) provides that the relevant State or Territory Minister is automatically a party to proceedings, unless the Minister otherwise notifies the Federal Court.

11.24   The Federal Court has held that the State party acts in the capacity of parens patriae, or ‘parent of the nation’, to look after the interests of the community generally.^[28]It could be suggested that third party respondents, whose interests in the claim area derive from a Crown grant, should not be involved in proceedings on the basis that their interests could be adequately represented by the relevant state or territory government. There was some stakeholder support for this position:

It is strongly arguable that the only parties that should be involved in native title litigation are the applicant, together with any other native title party, and the Crown. All other respondents take their rights and interests from [the] Crown, which, in the native title context, has a duty to protect them.

The respondents themselves are not likely to be able to add very much to the litigation apart from the manner in which they exercise those rights and interests. The Crown is quite capable of asserting and describing the rights and interests it has granted.^[29]

11.25   However, other stakeholders expressed concerns about procedural fairness and about the capacity or suitability of the Crown or some other body to represent an individual interest. Ergon Energy, for example, submitted that there may be ‘a potential conflict between the State and Ergon Energy’s interests particularly where Ergon Energy holds or seeks an interest in State land’^[30] and that ‘an expectation that the State will represent Ergon Energy’s interests in native title proceedings is unrealistic given the capacity of the State and the potential for conflict of interests to arise’.^[31]