In this case, the Court ordered that the application for joinder made by the Kulyamba Aboriginal Corporation RNTBC be dismissed. Kulyamba Aboriginal Corporation RNTBC applied to be joined as a respondent party to this proceeding. Kulyamba is the registered native title body corporate for the Thudgari People and the area as determined in Thudgari People v State of Western Australia [2009] FCA 1334. [3] The present claimant application (WAD 464 of 2016) over an adjacent but different area was lodged on 7 October 2016 and registered on 21 October 2016.
[4] Kulyamba asserted that the claim group description differed from the description of the native title holders in the Thudgari determination. [6] Kulyamba sought to be joined as a respondent in order to be heard in relation to:
The appropriate description of the persons who are determined to hold native title in the claim area
The appointment of a prescribed body corporate
The applicant opposed the joinder application.
Section 84(5) of the Native Title Act 1993 (Cth) (NTA) provides that the Court may at any time join any person as a party to the proceedings if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so. [17] Whilst Kulyamba did not assert a specific interest in the current claim area [19] it asserted an interest in the terms of a future determination of native title on the basis that it is the PBC managing native title under the Thudgari determination. The Court noted that Kulyamba did not seek a proprietary or other direct interest.
[21] Kulyamba sought to be heard on the terms of any future determination, particularly in relation to how the common law holders might be identified and who should be the PBC under a new determination. Barker J noted that on the face of it the claimants in this proceeding were the same as or similar to the group in whose favour the Thudgari determination was made. However, his Honour did not see how that factor resulted in any relevant interest for the purposes of their application for joinder.
[22] Barker J found that Kulyamba may have a general, specific or strategic interest in who will be appointed in due course as the PBC but in the current claim area it has no statutory or legal powers or responsibilities in relation to the making of the determination. Barker J found that it would be for the determined common law holders to elect the PBC under s 56(2) NTA. [24] Barker J did not accept Kulyamba RNTBC’s assertion that there would be an impact upon them in terms of governance.
[25] The applicant asserted that at this stage Kulyamba would not be the PBC. [26] The Court found that the potential conflict as to the responsibilities of Kulyamba as the PBC under the Thudgari claim and those of a future PBC upon the determination on this claim ‘does not produce an outcome that Kulyamba thereby has an interest in relation to the current proceeding.’ Barker J held that an existing PBC in relation to another native title determination cannot control the process of the nomination of the PBC in the current proceeding. [28] Barker J also found that to the extent that Kulyamba sees itself as a form of native title representative body under the NTA this was misconceived finding that it was the PBC for the Thudgari determination area and nothing more.
[29] The Court concluded that there was no relevant interest to support the joinder of Kulyamba Aboriginal Corporation RNTBC nor was there any basis to grant the application in the interests of justice and [31] the application for joinder was dismissed.