In this matter the Court ordered that the joinder application of Wayne Lapthorne dated 29 March 2018 be dismissed. Mr Lapthorne is a director of Kulyamba Aboriginal Corporation RNTBC, and was seeking to be joined as a respondent party to the proceeding (WAD 464 of 2016). On 29 March 2018, Barker J had dismissed the application of Kulyamba Aboriginal Corporation RNTBC to be joined as a respondent party (Eagles on behalf of the combined Thiin-Mah-Warriyangka, Tharrkari and Jiwarli People v State of Western Australia [2018] FCA 442).[1] That application had been supported by an affidavit of Mr Lapthorne.
Immediately following the dismissal of Kulyamba Aboriginal Corporation RNTBC’s application, Mr Lapthorne applied to be joined in his own name and affirmed a further affidavit in support of his interlocutory application dated 29 March 2018. Mr Lapthorne also relied on an affidavit of Paul Sheiner, principal of Roe Legal Services, which was affirmed 19 April 2018 and a further affidavit of Ms Forrest, a solicitor in the employment of Roe Legal Services, in support of his application.
Barker J determined the matter on the papers and dismissed the interlocutory application for the reasons that his Honour provided in in Drury v Western Australia and Others [2016] FCA 52 at [22]:
Suffice to say, as I did in Chubby on behalf of the Puutu Kunti Kurrama and Pinikura People v State of Western Australia [2015] FCA 964, that I consider a dissentient group of persons who are currently members of a claimant group (or even members of an applicant) in a native title determination application, may, in rare circumstances, be joined under s 84(5) as a respondent. It is not necessary in the circumstances of this matter to determine whether a dissentient person of that nature can automatically become a party to such a proceeding under s 84(3)(a)(ii). It is difficult to imagine, however, that that provision is intended to provide a vehicle for any dissentient member of a relevant claim group to assert they are already a respondent party to a proceeding.
His Honour stated that whether or not the claim group description in this proceeding is the same as that in the Thudgari determination was not, in his view, a significantly material enough factor to justify joinder at this time and the application was dismissed.
[1] See What’s New in Native Title - March 2018.