McKerracher J
This matter the Court considered an application by Mr Michael Alfred Laing (Mr Laing) to be joined as a respondent to the Mirning Claim under s 84(5) of the Native Title Act 1993 (Cth) (the NTA). Mr Laing also applied to give gender specific evidence.
The respondents were the State of Western Australia, the Commonwealth of Australia, the City of Kalgoorlie-Boulder, various pastoral interests and Telstra Corporation Limited.
Section 84(5) of the NTA provides that a person may be added as a party to proceedings, if the person has an interest that may be affected by a determination of native title and it is in the interests of justice to do so.
Mr Laing explained that he is the grandson of Mr Gordon Charles Naley, a Mirning man born in the Eucla District in Western Australia (near the South Australia border) to a full-blooded Mirning woman in 1884. Mr Laing said Mr Naley and his descendants had not been recognised as one of the apical ancestors for the Mirning Claim and although he had been invited to attend claim group meetings but had been told that he is not allowed to vote or join in the discussions.
In November 2009, Mr Laing attended a meeting of the Mirning claim group and requested that the claim be amended to include the Naley claim group. The Mirning claim group expressly declined to agree to Mr Laing’s request. The claim group agreed that Mr Laing was a Mirning man.
Mr Laing filed various affidavits and relied on expert evidence to support his claim that the Naley family share Mirning cultural rights and interests.
The Mirning Applicant opposed the application for the following reasons:
There is a history of Mr Laing, as part of the Naley family, filing an overlapping claim and seeking to be joined as a party to various proceedings.
Any new evidence would open up a new area of factual investigation which would require the Mirning Applicant to file evidence in response from Aboriginal and expert witnesses and the Mirning Applicant would not be able to seek instructions because the evidence was restricted for both Mirning men and women.
There was no reasonable explanation why Mr Laing did not file the evidence when he filed his joinder application.
Gender specific evidence
Justice McKerracher noted that Mr Laing's requested gender specific orders did not allow male members of the Mirning Applicant or claim group to attend the proposed restricted hearing or read the transcript and the proposed orders would not have allowed for instructions to be sought or evidence obtained from the male members of the Mirning Applicant or the claim group in response. In addition, the Mirning Applicant is represented by a female solicitor and barrister and the orders would require male replacements.
The Court agreed with the the Mirning Applicant's submissions and noted that there was no evidence in an admissible format as to law or custom requiring that Mr Laing’s evidence be restricted to non-Aboriginal men only, that the information could only be discussed in camera, of adverse consequences that would flow if the evidence were revealed to women, the public or even Mirning men.
Accordingly, the application to give gender specific evidence was refused.
Joinder application
His Honour concluded that Mr Laing had not been able to provide a clear definition of his interest in the Mirning Application.
The Court noted that Mr Laing did establish that his grandfather was born in the Mirning claim area 129 years ago but accepted Western Australia's submissions that Mr Naley permanently departed from the claim area 110 years ago and any connection with the claim area on the part of Mr Laing is remote.
The Court also held that although Mr Laing pointed to ill-treatment by the Mirning Applicant in the sense that he is allowed to attend claim group meetings but is not given any speaking or voting rights, these circumstances would accord with Indigenous recognition that he has elements of Mirning identity but not connection per se to the Mirning claim area.
The Court also considered that Mr Laing had been unsuccessful in previous applications to be joined as a respondent to:
the Ngadju claim (see Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1003); and
the Far West Coast Claim (see Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717).
In the circumstances the Court took the view that it cannot be in the interests of justice for Mr Laing to be made a respondent to the Mirning Claim.
Orders
The interlocutory applications filed by Michael Alfred Laing (Mr Laing) on 19 April 2013 and 17 July 2013 are dismissed.
The Mirning Applicant and Mr Laing to file and serve submissions on costs.
The costs application be determined on the papers.