250. The Terms of Reference for the Inquiry ask the ALRC to consider any barriers to access to justice for claimants, potential claimants and respondents imposed by the joinder provisions of the Native Title Act.
251. Native title proceedings differ from many other types of legal proceedings. Unlike, for example, a contractual dispute, where the parties bound by a court’s decision are usually very limited in number, a native title determination is enforceable against thewhole world. Consequently, the Native Title Act provides mechanisms aimed at ensuring that persons who may be affected by or have a relevant interest in a determination in the proceedings, have an opportunity to be involved.
252. This section considers who can become a party, and asks whether these provisions should be reformed to remove any barriers to justice and improve the operation of native title laws and legal frameworks.
253. Section 84 describes who is or may become a party to proceedings under the Native Title Act,and how parties may withdraw or be dismissed from proceedings. The provision applies in relation to native title determination applications (including non-claimant applications), revised native title determination applications and compensation applications.
254. Most persons, other than the applicant and the Crown, become parties to native title proceedings by virtue of s 84(3). That subsection provides that certain persons are a party if they notify the Federal Court of Australia in writing that they want to be a party. They include persons:
covered by any of subparagraphs s 66(3)(a)(i) to (vi); or
who claims to hold native title in relation to land or waters in the area covered by the application; or
whose interest, in relation to land and waters, may be affected by a determination in the proceedings.
255. Section 66(3)(a)(i) to (vi) refers to some of those persons and bodies, other than the applicant, whom the Registrar must notify of a claim. They are:
(i) any registered native title claimant in relation to any of the area covered by the application; and
(ii) any registered native title body corporate in relation to any of the area covered by the application; and
(iii) any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and
(iv) subject to subsection (5), any person who when the notice is given, holds a proprietary interest, in relation to any of the area covered by the application, that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth, a State or Territory; and
(v) the Commonwealth Minister; and
(vi) any local government body for any of the area covered by the application.
256. Proceedings cannot substantively commence until the notification process, conducted by the National Native Title Tribunal, has concluded and the parties are known.
257. The joinder provision, s 84(5), allows the Court to join a person as a party to proceedings at any time, if the Court is satisfied that the person’s interests may be affected by a determination and it is in the interests of justice to do so. Legal action may be well advanced when a person seeks to become a party under s 84(5).
258. The term ‘joinder’ is often used in discussions of native title procedure to describe both the s 84(3) method of becoming a party and s 84(5) applications to the Court to be joined as a party. Discussions about joinder under s 84(5), whether judicial or otherwise, may consider other subsections of s 84.
259. Rather than isolating issues that are only referable to s 84(5), this Issues Paper refers to some general issues to do with parties that continue to be raised in native title applications for determination and which have general relevance for joinder.
260. The original joinder provision, s 84(2), was in the following terms:
A person may seek leave of the Federal Court to be joined as a party to proceedings if the person’s interests are affected by the matter or may be affected by a determination in the proceedings.
261. The provision was amended by the Native Title Amendment Act 1998 (Cth) and again by the Native Title Amendment Act 2007 (Cth). The joinder provision, s 84(5), now reads:
The Federal Court may at any time join any person as a party to 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.
262. The 2007 amending Act also amended s 84(3)(a)(i) and (iii). A contemporaneous analysis of the effect of the changes to the party provisions concluded that ‘there are likely to be fewer respondent parties in native title litigation, and that, therefore, the proceedings are more likely to be resolved by agreement and easier to manage in litigation’.
Applications to join as a party under s 84(5)
263. In exercising its discretion to join a person as a party, 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 the leading case Byron Environment Centre Inc v Arakwal People. Those interests may include a ‘special, well-established non-proprietary connection with land or waters’ but must be ‘not indirect, remote or lacking substance’. They must be ‘capable of clear definition and … be affected in a demonstrable way by a determination in relation to the application’. They do not extend to ‘concerns solely of an emotional, conscientious, ideological or intellectual kind only’.
264. A comparison of the position in relation to ‘interests’ as used in s 84(3) and s 84(5) was provided in Kokatha Uwankara (Part A) Native Title Claim v South Australia:
The 2007 amendments therefore provided for two categories of persons with ‘interests’ which may be affected by a determination to be able to become parties:
(1) by s 84(3): those who have an interest in relation to land or waters in the claim area (as defined in s 253), and who give notice under s 84(3)(b); and
(2) by s 84(5): those whose ‘interests’ may be affected by a determination, where the word ‘interests’ is not defined, but may include:
(i) those who have an interest in relation to land or waters in the claim area, but did not give notice under s 84(3)(b);
(ii) those who have a different (and probably lesser) interest or interests which may be affected by a determination.
Those in the second category are subject to the Court’s discretion as to whether they may be joined as parties.
265. The 2007 amendment narrowed the meaning of ‘interests’ in s 84(3) to interests in land and waters. The amendment was expressly aimed at limiting party numbers. It is possible that some persons who would previously have been notified and become parties under s 84(3), are now applying to be joined under s 84(5).
266. Over the five year period 2009–2013, 220 applications for joinder under s 84(5) were made to the Federal Court after the relevant notification period. The great bulk of those applications—174, or approximately 80%—were made in matters concerning two jurisdictions, Queensland and Western Australia. There may be a variety of factors operating to produce this outcome, including the large number of claims made in these two jurisdictions.
Aboriginal and Torres Strait Islander joinder applicants
267. Indigenous persons seeking to become respondent parties have consistently figured in cases concerning s 84(5) or its antecedents. 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;
persons who are not members of the claim group assert rights in a personal capacity. This type of case might include persons who assert that they are members of the claim group, but that they have been excluded from, or not included in, the claim group; and
persons who are members of a competing claim group.
268. The issue of whether, and when, a member of the claim group might properly be a respondent to an application was discussed in Starkey v South Australia. That matter concerned whether a respondent, who was also a member of the claim group, should cease to be a party under s 84(8). The respondent party asserted, among other things, that the claim had not been duly authorised.
There may be circumstances where a particular person wishes to be recognised as a member of a claim group, but is not included. There may be other particular circumstances where an individual’s circumstances as a member of the native title claim group may need to be considered. The discretion to join such a person 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.
269. Applications for joinder by Aboriginal or Torres Strait Islander people under s 84(5), or to become a respondent party during the notification period under s 84(3), may be pointers to wider problems in the native title system; for example, the authorisation provisions of the Act or the availability of effective processes for dealing with conflict within a claim group.
Other joinder applicants
270. There are various reasons why other persons or bodies may come forward seeking to be joined as parties after the notification period has ended. The asserted interests vary.
271. The National Native Title Tribunal advertises claims widely. Despite this, a person may not become aware of the existence of a native title determination application while the notification period is still running. Other fact scenarios include, for example, where land within a claim area which may be affected by a determination has been transferred to a new owner after the notification period has ended.
272. Native title representative bodies have also been joined as parties outside the notification period on various occasions, despite some early concerns expressed by the Court.
The exercise of the discretion
273. Joinder of a party to proceedings pursuant to s 84(5) involves the exercise of the Court’s discretion. If the threshold questions of identifying whether there is an interest 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.
274. Most judgments available concerning joinder under s 84(5) are first instance decisions, and consideration of the particular circumstances of each case is a major part of the exercise undertaken by the presiding judge. The wide variety of fact scenarios may contribute to a reported difficulty in predicting the outcome of applications for joinder.
275. Some recurring themes are identifiable. A major consideration is whether joinder of the party will cause delay, and the potential for any such delay to prejudice the other parties and the Court. The involvement of a new party, particularly when a matter is already well advanced, has potential to severely disrupt the progress, and even the resolution, of a claim.
276. In exercising its discretion to join a person as a party, the Court may consider whether the person’s interest can be protected by a method other than by joining, and delay that may be caused by the application to be joined. The in rem character of native title determinations, which bind all persons whether parties or not, is another factor, but is not decisive.
277. Section 81 provides that the Federal Court has jurisdiction to hear and determine applications filed with the Court that relate to native title. Section 37M of the Federal Court of Australia Act 1976 (Cth)describes the over-arching purpose of civil practice and procedure provisions as the just resolution of disputes according to law ‘as quickly, inexpensively and efficiently as possible’. It is also capable of having decisive weight in a particular joinder case.
278. Since 2009, there has been no appeal from a decision of the Federal Court to join or remove, or not to join or remove, a party.
279. Section 84(8) provides that the Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings. In accordance with s 84(9), the Court is bound to consider dismissing a party in certain circumstances including where it is satisfied that the person no longer has interests that may be affected by a determination in the proceedings.
280. The power to dismiss parties pursuant to s 84(8) is a wide power, not confined to the circumstances described in s 84(9). Some of the factors examined by the Court in relation to dismissal resemble those examined in relation to s 84(5). For example, it has been held that ‘interests’ for the purposes of s 84(9) and s 84(5) has the same meaning, and issues such as likely delay of the progress of a claim have been taken into account in the exercise of the Court’s discretion under s 84(8).
Question 31. Do the party provisions of the Native Title Act—in particular the joinder provision s 84(5) and the dismissal provisions s 84(8) and (9)—impose barriers in relation to access to justice?
Who is affected and in what ways?
Question 32. How might late joinder of parties constitute a barrier to access to justice?
Who is affected, and in what ways?
Question 33. What principles should guide whether a person may be joined as a party when proceedings are well advanced?
Respondent interests and representation
281. There may be concerns about the number of respondent parties involved in native title determination proceedings. The bulk of respondents are not made parties by applying to join under s 84(5). Instead, many people become parties to the proceedings by notifying the Court in writing under s 84(3). In the 2012–2013 reporting year alone, for example, the Court dealt with 982 party applications under s 84(3).
282. Some native title proceedings involve very large numbers of respondents. For example, there were approximately 500 named respondents in the Yorta Yorta case at first instance. Claims made over geographically large areas, particularly if those areas are relatively closely settled, are likely to have many respondents. Large party numbers can complicate proceedings, slow outcomes and place an administrative burden on the Court.
283. There may be an historical element to party numbers in some matters. Although there has been legislative restriction over time concerning who may be a party to proceedings, transitional provisions applied in relation to both the 1998 and 2007 amendments to the s 84 party provisions. Because of the length of time some cases take to be resolved, former party provisions will apply to some parties in matters currently before the Court.
284. Some commentators suggest that some persons should not be involved in proceedings on the basis that their interests could be adequately protected by the relevant state or territory government.
285. In relation to consent determinations, for example, the 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.
286. Akiba provides an example where the ability of the Crown to represent other interests was referred to among the reasons for dismissal of a joinder application, in this case, of a Shire Council. The presiding judge considered the State of Queensland, as ultimate supervisor of the Council’s conduct and granter of Council’s powers, could be ‘expected adequately to represent the kinds of interests which have been identified’. Further, as any determination would be subject to the valid laws of Queensland, he was unable to see a basis for the Council’s continued involvement.
287. There may be concerns about procedural fairness and about the capacity or suitability of the Crown or some other body to represent an individual interest. It may also be argued that
A process in which there is wider, rather than narrower, community involvement is more, rather than less, likely to attract general community support and acceptance, and to produce speedy and effective outcomes.
288. Previous reviews into aspects of native title have made some suggestions about managing the involvement of non-government respondent parties in native title proceedings. In 2011, a review of the native title respondent funding scheme suggested that a distinction could be drawn between the ‘conventional’ parties to a native title determination application—the applicant and the relevant State—and other respondent parties. This would involve creating
another category of those recognised as having interests affected by the proceedings [but not capable of becoming parties by their own election]. The latter might be identified on a court list and be able to seek party status if particular circumstances were shown to warrant that ‘elevation’ [with the onus being on them to prosecute that position]. Otherwise the State or Territory involved and perhaps the Court would have to ensure that such affected interests were properly accommodated by any proposed resolution of the matter.
289. In 2006, the ‘Native Title Claims Resolution Review’ recommended that:
consideration be given to limiting the right of participation of a third party (that is, a non-government respondent party) to issues that are relevant to its interests and the way in which they may be affected by the determination sought.
290. It is open to a judge to join a person as a party, but to also impose conditions on the way that party may participate in proceedings. This may offer a way in appropriate circumstances of reducing the impact that late joinder or large party numbers may have on proceedings.
Question 34. In what circumstances should any party other than the applicant for a determination of native title and the Crown:
(a) be involved in proceedings?
(b) play a limited role in proceedings?
Question 35. What, if any, other changes to the party provisions of the Native Title Act should be made?
Justice John Dowsett, ‘Beyond Mabo: Understanding Native Title Litigation through the Decisions of the Federal Court’ (2009) 10 Federal Judicial Scholarship.
Native Title Act 1993 (Cth) s 61.
The applicant and the relevant State or Territory Minister are also parties: Ibid ss 84(2),(4).
Notification to the Federal Court must be within the period specified in the notice given under s 66, or in the case of an amended application given under paragraph 66A(1A)(e), the period specified under that paragraph. Ibid s 84(3)(b).
The Registrar is not required to notify a person in accordance with s 66(3)(a)(iv) if the Registrar considers that in the circumstances it would be unreasonable to do so: Ibid s 66(5).
See for example, Butterworth v Queensland (2010) 184 FCR 297.
Angus Frith and Ally Float, ‘The 2007 Amendments to the Native Title Act 1993 (Cth): Technical Amendments or Disturbing the Balance of Rights?’ (Native Title Research Monograph 3, AIATSIS, November 2008) 76.
Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1, 6.
Ibid 7–8. The principles described in Arakwal continue to be applied: see, eg, Cheinmora v Western Australia  FCA 727 (25 July 2013); Kokatha Uwankara (Part A) Native Title Claim v South Australia  FCA 856 (30 August 2013).
Kokatha Uwankara (Part A) Native Title Claim v South Australia  FCA 856 (30 August 2013) .
Explanatory Memorandum, Native Title Amendment Bill 2006 (Cth) 4.123.
Figures provided by the Federal Court of Australia, December 2013.
‘National Report: Native Title’ (National Native Title Tribunal, February 2012); ‘Claimant Applications as per the Register of Native Title Claims as at 31 December 2013’ (National Native Title Tribunal, 2014) <www.nntt.gov.au>.
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).
Starkey v South Australia  FCA 456 (9 May 2011).
Ibid. Dismissal cases regularly canvass similar issues to those raised in s 84(5) cases.
Dodd on behalf of the Gudjala People Core Country Claim No 1 v Queensland (No 2)  FCA 1167 (9 August 2013).
See, eg, Bissett v Minister for Land and Water Conservation (NSW)  FCA 365 (9 April 2002); Connelly on behalf of the Mitakoodi and Mayi People No 1 v Queensland  FCA 1181 (11 August 2009).
See, eg, Munn v Queensland  FCA 78 (6 February 2002).
Wakka Wakka People No 2 v Queensland  FCA 1578 (4 November 2005).
Barunga v Western Australia (No 2)  FCA 755 (25 May 2011) –.
Jennifer Jude, Martin Dore and Daniel O’Gorman SC, ‘Consideration of the Nature and Extent of the Interest Required to Join or Remain Joined as a Party to Native Title Proceedings’ (paper presented at National Native Title Conference Alice Springs, 3–5 June 2013).
See, eg, Akiba on behalf of the Torres Strait Regional Seas Claim People v Queensland (No 1)  FCA 1102 (18 August 2006) .
Dodd on behalf of the Gudjala People Core Country Claim No 1 v Queensland (No 2)  FCA 1167 (9 August 2013) .
Native Title Act 1993 (Cth) s 81. Jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.
Dodd on behalf of the Gudjala People Core Country Claim No 1 v Queensland (No 2)  FCA 1167 (9 August 2013) –.
Federal Court of Australia Act 1976 (Cth) s 24(1AA)(b); Singh v Super City Home Loans Pty Ltd  FCA 83 (14 February 2012) –.
Butterworth on behalf of the Wiri Core Country Claim v Queensland  FCA 325 (26 March 2010) .
Cheinmora v Western Australia  FCA 727 (25 July 2013) 8.
Federal Court of Australia, Annual Report 2012–2013 (2013) 143.
Members of the Yorta Yorta Aboriginal Community v Victoria  FCA 1606 (18 December 1998). See also Peter Seidel, ‘Native Title: The Struggle for Justice for the Yorta Yorta Nation’ (2004) 29 Alternative Law Journal 70.
The 2007 amendments apply in relation to a proceeding that commences on or after the commencing day (the day on which the Schedule commenced, 15 April 2007): Native Title Amendment Act 2007 (Cth) sch 2 pt 2 item 78. For the 1998 amendments, see Native Title Amendment Act 1998 (Cth) sch 2 pt 9 item 43. Existing parties remained parties under the amended Act. A transitional provision also covered persons for a limited period who had given notice to the Registrar after commencement of the amendments, but under the former provisions, that they wished to be a party to the application.
Munn for and on behalf of the Gunggari People v Queensland (2001) 115 FCR 109, .
Akiba on behalf of the Torres Strait Regional Seas Claim People v Queensland (No 1)  FCA 1102 (18 August 2006) .
Justice John Dowsett, ‘Beyond Mabo: Understanding Native Title Litigation through the Decisions of the Federal Court’ (2009) 10 Federal Judicial Scholarship.
Anthony Neal, ‘Review of the Native Title Respondent Funding Scheme’ (2011) 23.
Graeme Hiley and Ken Levy, ‘Native Title Claims Resolution Review’ (Report, Attorney-General’s Department, 31 March 2006).
Gamogab v Akiba (2007) 159 FCR 578, –. See, eg, Watson v Western Australia (No 3)  FCA 127 (24 February 2014) –.