Mansfield J
In this matter the Court considered an application by Michael Alfred Laing to be joined as a respondent to the Far West Coast Native Title Claim application for determination. The matter was heard on the papers by Justice Mansfield.
Background
The native title claim area is a substantial area of land running east from the South Australian/Western Australia border along the coast to about Fowlers Bay in South Australia. The current claim is a consolidation of two previously separate native title applications brought by the Far West Coast people and the Mirning people. Since the consolidation in 2006, negotiations have taken place between the claim group and the State of South Australia (State) to reach agreement on the terms of a consent determination. Those negotiations had reached the stage where a draft consent determination had been drafted. The joinder application was made at a late stage and potentially could, if successful, impede the progress of the claim.
The Court noted that the consolidated Far West Coast Native Title Claim has existed since 18 January 2006. Mr Laing attended the meeting on 21 and 22 July 2005 where that consolidation was agreed to. Mr Laing did not make an application to become a party to the proceeding until 13 July 2009. That application was discontinued on 2 May 2011. Mr Laing then brought his own native title claim on 18 April 2012. That was dismissed on 7 September 2012. Mr Laing then made the present application on 21 November 2012.
The joinder application did not claim that Mr Laing is one of the Naley descents or that the Naley descendants should be included as members of the claim group. Mr Laing simply sought an order that he be made a respondent to the claim.
Mr Laing relied on 2 affidavits, an expert anthropologist’s report and written submissions in support of his joinder application. The Far West Native Title Claim Group (the claim group) and the State filed written submissions opposing the application.
Reasoning
The Court may join any person to native title proceedings if their interest may be affected by the native title determination and it is in the interests of justice to do so under s 84(5) of the NTA. Justice Mansfield noted that if a prospective respondent can point to a clear and legitimate objective to achieve by being joined, then it will generally be appropriate to exercise the Court’s discretion in favour of the application. After considering the legislation and case law the Court concluded that not just any person claiming to hold native title rights and interests has an interest capable of satisfying s 84(5).
Justice Mansfield concluded that Mr Laing's concerns were intra-mural, between the members of the group, and the materials Mr Laing had filed in support did not distinguish the Naley descendants from other Mirning people in their interests in the claim area. On the assumption that Mr Laing is a Mirning man, the Court found that the concerns he and others expressed about the authorisation of the applicant and the applicant’s conduct of the claim are matters which will be addressed and possibly resolved when and if the applicant and the State propose a consent determination and the Far West Coast Native Title Claim applicant seeks the approval of the claim group.
The Court found that the procedural history, Mr Laing's express refusal to address the status of Mr Naley or the Naley descendents and discretionary considerations of delay were all reasons why Mr Laing should not be made a respondent party to the native title application.
Orders
The Court ordered that the interlocutory application of Michael Alfred Laing to be joined as a respondent party to this application is refused.