Rares J
This matter concerns an application by one native title claimant group (the Yindjibarndi) to strike out a native title determination proceeding of another claimant group (the Eastern Guruma) on the grounds that it is oppressive and an abuse of process. The areas of both determinations partly overlap in an area of the Pilbara in Western Australia. Rares J ordered that the determination proceeding brought by the Guruma people be summarily dismissed and that it constituted an abuse of process of the Court.
Background
In December 2015, Hughes and others on behalf of the Eastern Guruma native title claim group filed an application seeking a determination of native title (the 2015 proceeding - WAD750/2015). The applicant sought exclusive and non-exclusive native title rights and interests over approximately 722 square kilometres in the Pilbara region of Western Australia. This area is to the north of two previous determinations of non-exclusive native title in favour of the applicant in 2007 and 2012: Hughes (on behalf of the Eastern Guruma people) v State of Western Australia [2007] FCA 365 and Hughes on behalf of the Eastern Guruma People v the State of Western Australia (No 2) [2012] FCA 1267. Part of the area claimed in the 2015 proceeding overlaps with the subject of proceedings brought by TJ (deceased) and others on behalf of the Yindjibarndi #1 people (the 2003 proceeding - WAD6005/2003).
On 25 January 2016, the Yindjibarndi applicant filed an interlocutory application in the 2015 proceedings seeking that it be joined as a respondent and also that the 2015 proceedings be stayed, struck out or dismissed on the ground that they are an abuse of process of the Court pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) or r 26.01 of the Federal Court Rules 2011 (Cth) (the summary dismissal application). On the same day, Michael Hughes, one of the people comprising the Eastern Guruma applicant, filed an interlocutory application in the 2003 proceeding seeking that he be joined as a respondent pursuant to s 84(5) of the Native Title Act 1993 (Cth) (NTA) (the joinder application). On 20 January Rares J ordered that the Yindjibarndi applicant and the active respondents in the 2003 proceeding be joined as respondents in the 2015 proceeding. The current proceeding concerns the two interlocutory applications for summary dismissal and joinder.
The Yindjibarndi applicant's submissions
The Yindjibarndi applicant submits that the 2015 proceeding was oppressive and an abuse of process because:
there had been extreme delay in commencing the proceeding,
there was no adequate or credible explanation for that delay,
it caused prejudice to the Yindjibarndi applicant, the Yindjibarndi native title claim group, and the respondents in the 2003 proceeding, and
the nature of the claim to native title that the Eastern Guruma applicant asserted was, 'confused, inconsistent and opportunistic'.
Regarding Mr Hughes joinder application, the Yindjibarndi applicant contended that he should not be added as a respondent because:
that proceeding was very advanced,
there would be real prejudice caused to the Yindjibarndi applicant and other parties,
Mr Hughes’ delay in seeking to be joined was extreme and unexplained, and
his joinder would not be justified having regard to the public interest in the fair and efficient administration of justice.
Consideration of the two interlocutory applications
Application for dismissal
Justice Rares considered at [132] that there were two main issues, firstly 'whether the use of the Court's procedures, having regard to the Eastern Guruma applicants’ delay, is oppressive to the Yindjibarndi applicant, or will bring the administration of justice into disrepute. The second, or alternative, issue is whether the Eastern Guruma applicant has any reasonable prospect of successfully prosecuting the 2015 proceeding for the purposes of s 31A(2).' The Court considered that the Yindjibarndi applicant was relying on two sources of power to resist the 2015 proceeding behind heard: the summary power and the protective power. The summary power requires the moving party to satisfy the Court that its procedures should be used to decide the outcome of the proceedings summarily in its favour, while the protective power requires the Court to weigh whether its procedures are being, or are sought to be, used oppressively, unfairly or unjustly.
Justice Rares held that the delay in bringing the 2015 proceeding constituted an abuse of process of the Court for the following reasons:
The Eastern Guruma applicant was aware since 2003 of the overlapping boundaries yet did nothing to assert their claims at an earlier time.
The Yindjibarndi applicant will 'suffer significant prejudice in their ability to contest the 2015 proceeding. It would be manifestly unjust to allow the 2015 proceeding to continue. Many of the knowledgeable elders in both claim groups are no longer able to give evidence because they have passed away or their memories have become frail or lost.' (at [141])
There is a lack of evidence supporting the Eastern Guruma applicant's claim over the overlapping area. There has been no clear articulation of any spiritual connection.
The Yindjibarni applicant has prepared its case over many years and proceeded to the final hearing on the basis that there was no overlapping claim.
For these reasons, Rares J held that the 2015 proceeding should be dismissed as an abuse of process of the Court.
Furthermore, considering the summary power, Rares J held at [154] that the 2015 proceeding 'lacks reasonable coherence in all of the circumstances'. While a summary dismissal of the proceedings would preclude other Eastern Guruma people’s claims in or over the overlap area, Rares J held that regardless, there is no evidence suggesting that there is any reasonable prospect of any such claim being established. In addition to the decision that the 2015 proceeding should be dismissed on the grounds of an abuse of process, Rares J ordered that the 2015 proceeding be summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth).
Application for joinder
The Court holds a discretionary power under s 84(5) of the NTA to order that a person be joined to proceedings if the joinder would be in the interests of justice. Justice Rares held at [166] that Mr Hughes' application to be joined as a party would 'serve no proper purpose and would not be in the interests of justice'. If Mr Hughes became a party to the 2003 proceeding, he could cause matters to be in issue and litigated that have been resolved after the expenditure of considerable sums of money. Furthermore, Rares J considered that Mr Hughes’ participation would be destructive of the orderly conduct of the 2003 proceeding, and that his conscious delay and his false explanations for it demonstrate it would not be in the interests of justice for him to be joined. Justice Rares dismissed Mr Hughes' application to be joined to the 2003 proceeding.
Costs
Justice Rares held that the Yindjibarni applicant should be compensated on an indemnity basis under s 85A(2) of the NTA for the costs of the 2015 proceeding, the interlocutory application for joinder, and for the Yindjibarndi applicant's costs as a result of the filing and prosecution of the 2015 proceeding.