Jagot J
In this case, the Court considered a number of applications (notices) from individuals who wanted to be joined as parties to the Gomeroi People’s native title claim.
The first application was filed by Martin De Launey. The second application was made up of a group of 14 applications by fourteen members of the Dabee clan of the North East Wiradjuri. The third application was filed by Victor Mark Perry on behalf of the Wonnarua people. None of the persons who filed applications for joinder appeared before the Court, but there were appearances on behalf of the Gomeroi people and the first respondent, the State of New South Wales.
The Gomeroi People opposed the applications for joinder either on the basis that:
the people who had filed the notices were not properly a party to the proceedings; or
if they were a party, they should cease because their claims to hold native title in the claim area were unsubstantiated and they did not have a relevant interest which may be affected by a determination in the proceedings.
Reasoning
Her Honour noted that section 84(3)(a)(ii) of the Native Title Act 1993 (Cth) (NTA) provides that any person is a party to the proceedings if they claim to hold native title in relation to the land and waters the subject of the proceeding.
All but one of the forms contained a statement about the interest claimed which precisely reflected the words of section 84(3)(a)(ii) of the NTA. The issue which the Gomeroi People raised was whether a bald assertion of native title in relation to land and waters in the area covered by the application, indeed being an assertion made in the very terms of the section itself, is sufficient.
Only the form filed by Mr Perry was different in key respects. His form stated that the Gomeroi claim: ...impinges upon and includes country which is traditionally the land of the Wonnarua people.
As no person appeared on behalf of the persons who have filed the notices there was no relevant contradictor. Accordingly, Her Honour preferred not to resolve this issue in the context of these matters and take the notices at face value and determine the matter on the assumption that Mr De Launey and each of the Dabee clan members are in fact already parties to the proceedings pursuant to section 84(3)(a)(ii) of the NTA.
Should Mr De Launey and each of the 14 Dabee clan members cease to be a party to the proceedings?
The Court had to determine whether Mr De Launey and each of the 14 Dabee clan members should cease to be a party to the proceedings.
The evidence filed by the Gomeroi People included an affidavit of James William Rose, an anthropologist from NTS Corp Limited, which concluded that there was no evidence that either Mr De Launey or any of his indigenous ancestors ever had a physical connection with the Gomeroi claim area and a series of maps showed that the historical and current native title claims on behalf of the behalf of the Wiradjuri People or the Wonnarua People sit outside the Gomeroi claim area.
Her Honour held that it is only those persons whose interests may be classified as genuinely, demonstrably and not indirectly affected by a determination of native title who ought to have the status of parties to the proceedings.
Having regard to the material Mr De Launey had provided and all other evidence filed with the Court, Her Honour found it impossible to be satisfied of the existence of a genuine, demonstrable or direct interest which might be affected by a determination of native title and ordered Mr De Launey be removed from the proceedings. The position of the Dabee clan members, 14 in total, was even less persuasive as they had not filed additional material, despite the opportunity to do so. The Court also made orders that they cease to be a party to the proceedings.
Should Mr Perry on behalf of the Wonnarua people to be joined as a party to the proceeding?
The case for Mr Perry was different as he did not claim to hold native title in the Gomeroi claim area. Her Honour therefore treated it as an application for joinder under s 84(5) NTA. The basis of Mr Perry's interest was an agreement entered into between Mr Perry, on behalf of the Wonnarua claim group, and Coal & Allied Operations Pty Ltd in relation to a mining project. It was not clear on the evidence before the Court that the project was within the claim area or that any part of the contract would be affected. The Court therefore made orders that Mr Perry's application be dismissed.
Orders
15 named individuals ceased to be a party to the proceedings under s 84(8) of the NTA.
The application of Victor Mark Perry on behalf of the Wonnarua people to be joined as a party to the proceedings be dismissed.