In this matter the Court ordered that the interlocutory application filed by Mr Keith Kemp on 12 December 2017 be dismissed. Mr Kemp’s joinder application was opposed by the applicant in the substantive proceeding. The Attorney-General of NSW and NTSCORP neither consented to nor opposed the application. A summary of the background matters in NSD1786/2016 is set out in paragraphs [5] – [7].
The main country claim by the Warrabinga-Wiradjuri People was filed in May 2017. [9] Mr Kemp’s interlocutory application was filed in December 2017, after the relevant three-month notification period for NSD1786/2016 had expired (i.e. on 8 May 2017). Accordingly, the application fell to be determined by reference to s 84(5) and not s 84(3) of the NTA.
There was substantial agreement between the parties as to the relevant legal principles concerning joinder. The parties were agreed that the relevant provision in the NTA concerning Mr Kemp’s application to be joined as a party in the circumstances here is s 84(5). Some of those principles were summarised by Branson J in earlier proceedings involving Mr Kemp, being Davis-Hurst on behalf of the Traditional Owners of Saltwater v New South Wales Minister for Land and Water Conservation [2003] FCA 541. Drawing also on cases such as Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 and Jacob v State of Western Australia [2014] FCA 1106 per McKerracher J, the relevant principles which guide the exercise of the Court’s discretion are set out at [17] – [18].
[26] Griffiths J summarised Mr Kemp’s case as follows:
there is a Dreaming Track which starts near Canberra and proceeds to and beyond Ulan, which Dreaming Track is linked with the K Group (a reference to a language group more commonly known as the Gundungurra);
the traditional land and waters of the Wiradjuri People are to the south of the Dreaming Track;
Wiradjuri Country is to the west and north of the Macquarie River; and
all the apical ancestors listed in the various Warrabinga-Wiradjuri claims are apical ancestors of the K Group.
[29] In his reply submissions, Mr Kemp stated that he had not approached any Gundugurra people about making a rival claim to the current proceeding. He said that there would be significant practical difficulties in him obtaining authorisation to make such a claim and that there would also be serious resource implications. He submitted that NTSCORP would only fund one native title claim for a particular area.
[30] In brief, the applicant opposed the joinder on the basis that:
although Mr Kemp had elected not to claim a native title interest in the application area, his interest could not be defined with reasonable certainty and is not readily ascertainable as a matter of fact;
although Mr Kemp claims to have knowledge of familiarity with what he describes as ‘Group K’, he has not sought to rely on any independent material which suggests that the boundaries of traditional Gundungurra country is proximate to the application area and the available material suggests to the contrary;
although Mr Kemp does not claim membership of the Gundungurra in his evidence, he appears to suggest in his 2 March 2018 submission that he is seeking to establish his authority to act as a representative of that group. Applying Reeves J’s decision in Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [19], a person cannot be joined as a respondent party in a proceeding if his or her purpose is to act as a representative to assert native title rights on behalf of other people;
on the issue of the interests of justice, the applicant submitted that if the Court considered that Mr Kemp had a sufficient interest for the purposes of s 84(5), his joinder was not in the interests of justice because:
the application is inconsistent with the overarching purpose of civil practice as defined in ss 37M(1) and (2) of the Federal Court of Australia Act 1976 (Cth) and, in particular, the just resolution of disputes as quickly, inexpensively and efficiently as possible; and
the other orders sought in Mr Kemp’s interlocutory application relate to proceedings in which Mr Kemp currently is not a party and the terms of order 4 of his interlocutory application suggest that Mr Kemp may have a personal interest in being made a consultant in the proceedings pursuant to s 131A of the NTA.
Griffiths J: [32] ‘The first issue for determination is whether Mr Kemp has demonstrated, at least on a prima facie basis that he has relevant interests which may be affected by a determination of native title in respect of the current proceeding. [37] Given Mr Kemp’s failure to demonstrate even on a prima facie basis that the Dreaming Track affects the areas the subject of the claim in the current proceeding, it necessarily follows that his interests will not be affected “in a demonstrable way” by a determination of the current proceeding. [38] It is unclear whether Mr Kemp is acting in a personal or a representative capacity. I am not prepared, however, to accept the applicant’s invitation to make a firm finding that Mr Kemp is acting in a representative capacity and that his application should be characterised as a representative claim on behalf of the K Group.’
[39] His Honour did not accept the applicant’s submission that Mr Kemp had a personal interest in being appointed a consultant under s 131A of the NTA, and that this is what has motivated his interlocutory application: ‘I have noted Mr Kemp’s reply submission in which he acknowledged that he may have a conflict of interest in consulting on a professional basis in the proceeding.’
[40] His Honour found that that Mr Kemp’s interests were insufficient to qualify as ‘interests’ for the purposes of s 84(5), and that it was unnecessary to address and determine the second limb of s 84(5), namely whether or not it is in the interests of justice to join him as a party in the proceedings. The two limbs are conjunctive and the second limb only arises if the first limb has been established. Griffiths J found at [42] that the interlocutory application should be dismissed. There was no order made as to costs.