[1] This matter dealt with applications of Ms Selina Ali to be joined as a respondent under s 84(5) of the Native Title Act 1993 (Cth) (NTA) in two claimant applications made by the Nyamal People, WAD6028/1998 (Nyamal #1) and WAD6003/2000 (Nyamal #10). Her joinder application in each case was opposed by the Nyamal applicant in each of those claimant applications. Barker J noted at the outset that the applications were made very late in the proceedings and the consent determination scheduled for 5 April 2018 would likely need to be vacated if Ms Ali were joined as a respondent.
[7] Each of Ms Ali’s joinder applications was filed on 7 February 2018, seeking orders that:
Pursuant to s 84(5) of the Native Title Act 1993 (Cth) (NTA), that she be joined as a party to this proceeding; and
That pursuant to s 84D(1)(b) of the NTA, the members of the applicant produce evidence to the Court that they are authorised to implement the resolutions which were purportedly passed at an authorisation meeting held in South Hedland on 6 and 7 December 2017.
[9] Ms Ali’s joinder applications were filed five days after an application was filed in the Nyamal #1 on behalf of Mavis Westerman also seeking an order pursuant to s 84D(1)(b) of the NTA that members of the applicant produce evidence to the Court that they are authorised to implement resolutions purportedly passed at the authorisation meeting held in South Hedland on 6 and 7 December 2017.
[10] The Nyamal applicant, which was also legally represented in these proceedings, opposed the joinder applications but, by affidavits of Craig Marshall Jones, Darren Paul Hopkins and Mr Peter William Stokes filed on 21 February 2018, produced materials relating to the December, South Hedland meeting. [11] As a result of the filing of those materials the requests of Mavis Westerman and Ms Ali for the production of such relevant materials were obviated.
[12] The allegations relating to the December 2017 meeting included that the notice for the authorisation meeting was defective and the conduct of the meeting was unsatisfactory. [13] The Nyamal applicant was seeking to obtain claim group approval or verification of the terms of the proposed consent determination scheduled for consideration on 5 April 2018. Consequently there was some interest in the meeting, particularly in the question of who comprised the members of the claim group. [17] Following the production by the Nyamal applicant of the required materials, the only application pressed by the interlocutory applicants was Ms Ali’s application for joinder in the two Nyamal claimant applications. [20] The Court added that Ms Ali did not make any submissions in relation to the adequacy of the meeting notice or the number of votes cast for or against resolutions at the meeting.
[21] Applications for joinder are governed by section 84(5) as it stood prior to the 2007 amendment to the NTA that introduced the requirement for the Court also to take into the account the interests of justice. Under the provision as applicable, the Court might at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interest may be affected by a determination in the proceedings.
[33] It was submitted that consistent with authority, it is not for the Court on the joinder applications to decide whether Ms Ali’s allegations are finally made out but rather that they are properly arguable. It was not for the Court to determine whether her allegations [concerning eligibility of membership of the native title claim group] are correct and that all Ms Ali needed to show was a prima facie case that she has an interest that could be affected by a determination in the proceedings.
[40] The Nyamal applicant submitted that the interests of justice do not support the joinder of Ms Ali, especially at this late stage of the proceedings. The Nyamal applicant generally submitted that the late joinder of Ms Ali is likely only to be destructive of the orderly conduct at the proceedings and for that reason should not be allowed.
Barker J held that: [70] ‘Taking all of the above factors into account, I consider there is sufficient evidence to show that Ms Ali has an arguable interest in the proceedings that may be affected by a determination in favour of the applicants in the two claimant proceedings, especially by the proposed consent determination. Further, I consider that in all of the circumstances surrounding the challenge to the proper notification and conduct of the December 2017 meeting, I should exercise discretion in her favour.’
[70] I should add here that the fact that Ms Ali has not and I do not think proposes to file a claimant application of her own is not an impediment to joining her as a respondent at this point. Only where it is plain that a person asserting native title interests who wishes to be joined as a party intends to maintain a claim for another group different from the existing native title applicant, does that become a question.
[75] His Honour appreciated that to facilitate this joinder at this late stage of these two claimant applications may well cause delay and extra expense to parties. Nonetheless, his Honour considered the joinder was necessary in order to do justice in this case. [76] Barker J ordered that Selina Ali be joined as a respondent to the proceeding.