Barker J
In this matter, Barker J considered whether two members of the Nanda claim group and Nanda Applicant, William Charles Mallard Jnr and William Charles Mallard Snr (the Mallards), should be removed as respondent parties under s 84(8) of the Native Title Act 1993 (Cth) (NTA). The other respondents to the proceedings included the State of Western Australia and Commonwealth of Australia. Barker J ordered that the Mallards cease to be respondents to the proceeding.
Background
The Mallards supported a determination of native title being made in the name of the Applicant on behalf of the native title claim group, with one important reservation. The Mallards argued that they had a real and substantial concern that they may be removed from the native title group in the case if their apical ancestor, the late Sarah Feast, is not included among the ancestors for the native title claim group. They argued that if they cannot be so satisfied that their apical ancestor will be included, they should remain as respondents to be able to argue that they hold native title in the claim area.
Reasoning
There was no dispute that the Court has the power to remove the Mallards as respondents in the proceeding under s 84(8) of the NTA. The State and Commonwealth held differing views about whether the s 84(8) power should be interpreted by reference to other provisions in s 84 of the NTA.
Barker J referred to his decision in Chubby on behalf of the Puutu Kunti Kurrama and Pinikura People v State of Western Australia [2015] FCA 964, in which he held that a dissentient group of claimants, may, in rare circumstances, be joined as respondents under s 84(5) of the NTA. His Honour did not consider it necessary in the circumstances to determine whether such a dissentient person can automatically become a party by virtue of s 84(3)(a)(ii) of the NTA but stated that it was difficult to imagine that the provision was intended to have that effect.
His Honour held that the manner in which the Mallards were joined as respondents was ‘effectively accidental’ and there was no proper basis for them to remain as members of the claim group and respondents to the proceeding. Barker J considered that should the Mallards wish to cease to be members of the claim group because of their apical ancestor concerns they could then be joined as respondents. Barker J observed, 'In the meantime, they cannot reasonably expect to have one foot in the claimant camp and the other foot outside it, in order to cover all possible eventualities.'
Barker J ordered that the Mallards cease to be respondents to the proceeding.