White J
In this matter, White J refused an interlocutory application by the Adnyamathanha people to be joined as a respondent party to the native title claim brought on behalf of the Malyankapa People. His Honour ordered that Ms Janet Coulthard of that group be joined instead. The claim was filed in September 2015 over an area in the northeast of South Australia.
The Adnyamathanha people assert that they have traditional rights and interests in the Malyankapa claim area that coexist with the native title rights and interests claimed by the Malyankapa. Those rights and interests were recognised by the Malyankapa in a Memorandum of Understanding (MOU) agreed with the Adnyamathanha people in April 2015. His Honour accepted that the Adnyamathanha people do have an interest in the claim area.
The Malyankapa people resisted the joinder, submitting that the interests of the Adnyamathanha people were not affected as required by the joinder provision contained in s 84 of the Native Title Act 1993 (Cth), because the Malyankapa had, by the MOU, accepted the responsibility of protecting the interests of the Adnyamathanha and there was no reason to suppose that they would not honour that commitment. To the contrary, his Honour considered that the native title rights and interests claimed by the Malyankapa People may affect the exercise of the rights claimed by the Adnyamathanha people, including the right to access and move about the claim area, the right to regulate access to and use of the claim area by other Aboriginal people in accordance with traditional laws and customs, the right to hunt on the claim area, and the right to speak about the claim area among other Aboriginal people who seek access to, or use of, the lands and waters in accordance with traditional laws and customs. The Adnyamathanha people and the Malyankapa people have claims which will correspond in some respects but which may conflict in other respects, which his Honour considered to count against a conclusion that the interests of the Adnyamathanha people will be adequately represented by the Malyankapa people.
White J held that it was possible that a determination may be made that does not take account of the rights claimed by the Adnyamathanha people, and that the MOU does not bind the State or the other respondent parties. His Honour held that the Adnyamathanha people have an interest in the MOU being recognised and being made part of a separate order on the Malyankapa claim pursuant to s 87A(5) of the NTA.
While the criteria in s 84 of the NTA was satisfied, White J held that the joinder application was inappropriate as the ‘Adnyamathanha People’ is the name of a collective people; it is not a legal entity and does not have any legal personality. The applicant submitted that any orders arising from the matter could be enforced against the Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC (ATLA) which is the prescribed body corporate for the Adnyamathanha No. 3 determination area. His Honour rejected this submission, holding that an order could not be enforced against ATLA as it is not a party to the proceedings, nor could it become one – see Cheinmora v State of Western Australia [2013] FCA 727; Sumner v State of South Australia [2014] FCA 534 at [14]). White J held that any order of the Court against the Adnyamathanha People would be incapable of direct enforcement.
The applicants amended their application to allow for Ms Janet Coulthard to be joined as the respondent party instead. Neither the Malyankapa people nor the state opposed the applicant’s changes. White J found that Ms Coulthard was an Adnyamathanha person and her interests were affected by the Malyankapa application, and so accordingly found it appropriate for her to be joined as a respondent party.