North ACJ
In this matter, North ACJ considered an application seeking orders that Mary Attwood, George Dann, Robert Dann, Shirley Lockyer, Patricia Mason and Eugenia Smith (the Indigenous respondents) cease to be respondents to the Kariyarra-Pipingarra application for native title as they were also members of the claim group.
The respondents were the State of Western Australia, the Commonwealth, the Indigenous respondents, and various mining companies.
Background
The Kariyarra-Pipingarra application was filed in December 2009 over areas east and south of Port Hedland in Western Australia.
The Indigenous respondents were not included in the original native title claim group and subsequently filed a notice of intention to become a party to the application under s 84(3)(b) of the Native Title Act 1993 (Cth) (NTA).
The District Registrar ordered that the Indigenous respondents be joined as parties to the applicatiuon on the basis of an anthropological report supporting their claim that their ancestor, Tommy Anderson, was a Kariyarra person.
The proceeding was referred to mediation and the question of the membership of the native title group was an issue. A further expert anthropologist report was obtained to assist the parties to resolve the issues including the question of group membership.
The applicant commissioned further research concerning the application including about the traditional laws and customs relating to group membership and filed an application to amend the description of the native title claim group to include additional apical ancestors, including Tommy Anderson.
The Indigenous respondents opposed the amendment on grounds including the proposed amended claim group included apical ancestors who were not Kariyarra and, consequently, the amendment was not authorised by the people entitled to native title over the country in question.
The Court allowed the amendment in TR (Deceased) on behalf of the Kariyarra People v State of Western Australia [2014] FCA 734, and the Indigenous respondents became members of the native title group, while remaining respondents to the application.
The applicants sought to remove the Indigenous respondents as respondents as they are now included within the native title claim group. The Indigenous respondents opposed this application as they disagreed with the listed apical ancestors and criteria for determining Kariyarra identity and considered that they have ‘an interest in preventing the making of a determination in favour of some people who are not entitled under traditional law and custom to hold rights and interests in the land’ at [22].
Consideration
His Honour held that the Indigenous respondent's contesting of the membership of the group itself is not an internal membership matter. His Honour noted that the parties relied upon expert anthropological opinion on each side of the debate and it was not appropriate to decide the issues at an interlocutory stage as analysis of the expert reports calls for detailed examination and argument at trial, including cross examination of the experts.
North ACJ considered further discretionary considerations. The Indigenous respondents have not made a competing claim for determination of native title, nor have they given any reasons for not lodging a claim. Furthermore, by remaining as respondents, the finalisation of the proceeding will be delayed and greater expenses incurred by the parties.
However, several factors outweighed these reservations and support the Indigenous respondents remaining as respondents:
A determination of native title is an order in rem. It binds the whole world in relation to the rights and interests in the country concerned.
The Indigenous respondents have raised an arguable case in support of a competing native title.
There is apparent divergence in the views of the expert anthropologists on the issues.
The defensive assertion of native title rights and interests by individuals to combat an application for native title can “lead to a more informed decision...as to whether the native title rights and interests should be granted as expressed in that application"
The only route to an authoritative resolution is by judicial determination.
The Indigenous respondents have asserted their claimed rights and interests from the inception of the proceeding and have maintained the position in opposing the amendment application and in opposing the present application. They have not been responsible for any delay.
On balance, the Court concluded that the application for orders that the Indigenous respondents cease to be respondents should be dismissed.
Orders
The application seeking orders that Mary Attwood, George Dann, Robert Dann, Shirley Lockyer, Patricia Mason and Eugenia Smith cease to be respondents, is dismissed.