White J
In this case, Mr Birtwistle-Smith sought to be joined as a respondent to the Ngarrindjeri Native Title Claim pursuant to s 84(5) of the Native Title Act 1993 (Cth) (‘NTA’). His application was opposed by the State of South Australia and the Ngarrindjeri native title claimants.
Background
The Ngarrindjeri claim, filed in 2014, related to a large area of land in South Australia. In July 2017 Mr Birtwistle-Smith and 11 others filed an application for a determination of native title (the First Nations of the South East claim), part of which overlapped the southern part of the area claimed by the Ngarrindjeri Native Title Claim group. Following this, the Court made orders separating the Ngarrindjeri People’s application into two parts. Ngarrindjeri Part A comprised the part not overlapped by the First Nations of the South East’s claim while Ngarrindjeri Part B comprised the overlap area.
Joinder Application
Mr Birtwistle-Smith sought to be joined to the proceedings because five of the apical ancestors named in the Ngarrindjeri Native Title Claim were also persons named as apical ancestors in the First Nations of the South East Claim. A determination in favour of the Ngarrindjeri people would therefore be inconsistent with the claims and evidence of the applicants in the First Nations of the South East claim, particularly their interest in maintaining that the forebears of the First Nations of the South East constituted a society separate and distinct from that of the Ngarrindjeri Claim Group.
By reference to s 84(5) of the NTA, White J noted that an application for joinder must show that (a) the person has an interest (b) the interest may be affected by a determination in the proceedings and (c) in the exercise of its discretion (in the interests of justice); the Court should join the person as a party.
Decision
(a) Interest
It was submitted that Mr Birtwistle-Smith did not have a relevant interest as he did not provide evidence of genealogical connection to any of the five apical ancestors in question. Nevertheless, His Honour was prepared to assume that Mr Birtwistle-Smith had a relevant interest due to the potential impact of the inclusion or exclusion of the five apical ancestors on the identity of the society at sovereignty.
(b) Potential for interest to be affected
This interest could be affected by the determination in Ngarrindjeri Part A as it would having a bearing on the First Nations of the South East Claim, of which Mr Birtwistle-Smith was a member.
(c) Interests of justice
Nevertheless, White J was not persuaded that it was in the interests of justice to make the joinder. The Ngarrindjeri claim had been filed 19 years earlier, during which time Mr Birtwistle-Smith could have brought a joinder application. The application was not brought until after the Court had made arrangements for a consent determination in Ngarrindjeri Part A. Mr Birtwistle-Smith did not provide an adequate explanation for the lateness of the application and, in particular, did not assert any lack of awareness of the Ngarrindjeri Native Title Claim or the identity of the apical ancestors named in the application. Joining Mr Birtwistle-Smith would cause significant delay to the resolution of the Ngarrindjeri claims. Having regard to the overarching purpose of civil practice and procedure provisions set out in section 37M of the Federal Court of Australia Act 1976 (Cth) (‘FCA Act’), particularly the public interest in having proceedings conducted as quickly, inexpensively and efficiently as possible, His Honour dismissed the joinder application.