In this matter White J ordered that:
the interlocutory application, filed by Mr Birtwistle-Smith seeking to be joined as a respondent to the Ngarrindjeri Native Title Claim be dismissed and
that the matter be adjourned for the purposes of a Case Management Conference on 20 October 2017 and otherwise for a Consent Determination on 14 December 2017.
Mr Birtwistle-Smith’s application for joinder was made pursuant to s 84(5) of the Native Title Act 1993 (Cth) (NTA). The State and the Ngarrindjeri native title claimants opposed the application.
Ex Tempore reasons for judgment
White J: [2] - [3] The Ngarrindjeri claim was filed on 23 June 1998, and covers a large area of land between Murray Bridge in the east and Cape Jervis in the west and extending south along the Coorong to a point just north of Kingston, and then extending northeast to meet the Dukes Highway and then following the alignment of that highway back to Murray Bridge. Mr Birtwistle-Smith is a member of the First Nations of the South East claim, which was filed on 7 July 2017. Part of that claim area overlaps the southern part of the area claimed by the Ngarrindjeri Native Title Claim group.
[4] – [5] Section 84(5) of the NTA empowers the Court at any time to join a 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 that it is in the interests of justice to do so. [5] 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.
The Ngarrindjeri Native Title Claim
White J: [9] In late 2014, the Ngarrindjeri claim was listed as a priority claim in the applications for determination of native title in South Australia. At a case management hearing on 1 September 2016, the Court raised concerns about the lack of progress towards the resolution of the matter. Since that time the Parties made considerable progress in the early part of 2017 and on 10 July 2017 at a case management conference the Court was advised that the parties may be available for a consent determination directly.
[11] A significant event for the Ngarrindjeri Native Title Claim occurred on 7 July 2017 when Mr Birtwistle-Smith and 11 others filed an application for a determination of native title described in the application as the First Nations of the South East. Part of the area claimed by the First Nations People in that application for a determination of native title overlaps in the southern part of the claim area claimed by the Ngarrindjeri Native Title Claim Group.
[12] On 27 July 2017, on the application of the Ngarrindjeri Native Title Claim Group, the Court made orders separating the Ngarrindjeri People’s application into two parts, being Ngarrindjeri Part A and Ngarrindjeri Part B. Ngarrindjeri Part A comprises a part of the Ngarrindjeri claim not overlapped by the application of the First nation’s application filed on 7 July 2017. Ngarrindjeri Part B comprises the balance of the area which is in effect the overlap area. The Court referred the overlapping claims for mediation to take place in early 2018. On 27 July 2017 the parties in Ngarrindjeri Part A advised the Court that they were in the final stages of agreeing the matter for the consent determination and on that basis the Court listed 14 December 2017 as the time contemplated for the consent determination.
[14] On 4 August 2017 a further application for a determination of native title was filed by the First Nations of the South East. The area of that application does not overlap with the Ngarrindjeri native title claims.
Application for joinder
[16] Mr Birtwistle-Smith filed his interlocutory application on 31 August 2017. The application did not indicate on face value if it was filed in both Ngarrindjeri Part A and Ngarrindjeri Part B. At the directions hearing on 31 August 2017 counsel for the applicant indicated that he sought to be joined to both applications. Mr Birtwistle-Smith did not file an affidavit in support of his application but rather set out the bases of his application in the affidavit of Mr Andrew Jantke a solicitor employed by South Australian Native Title Services Ltd (SANTS).
At paragraph [17] Mr Jantke’s affidavit discloses the basis upon which Mr Birtwistle-Smith seeks to be joined as a respondent:
five of the apical ancestors named in the Ngarrindjeri Native Title Claim are also persons named as apical ancestors in the claims of the First Nations of the South East
in the event that the foreshadowed consent determination is made in Ngarrindjeri Part A, the legal interests of Mr Birtwistle-Smith would be affected because:
the determination would thereby identify the Disputed Apicals as ancestors of the Ngarrindjeri native title holders and members of the same society of which the native title holders are members
that identification would be inconsistent with the claims and evidence to be advanced by the applicants on behalf of the First Nations of the South East in support of their native title determination application
the in rem nature of a determination of native title may preclude Mr Birtwistle-Smith and other members of the First Nations of the South East People from advancing evidence in their claims which contradicts any determination of native title in the Ngarrindjeri Native Title Claim.
[18] In further support of his application, Mr Birtwistle-Smith also filed an affidavit from an anthropologist, Mr Clarke in support of his application. In the report annexed to Mr Clarke’s affidavit, Mr Clarke expresses the view that five of the apical ancestors named in the Ngarrindjeri Native Title Claim are not apical ancestors for the Lower Murray/Ngarrindjeri People. He considers instead that each of the five persons is an apical ancestor for all Aboriginal groups based in the southeast at sovereignty. Mr Graham, an anthropologist employed by SANTS, expressed opinions to the same effect.
[20] Counsel also contended that Mr Birtwistle-Smith has an interest which could be affected by a determination in Ngarrindjeri Part A or Ngarrindjeri Part B, being his 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 and his interest in being able to contend that the five apical ancestors in question were not associated with the claim area for Ngarrindjeri Part A.
[21] Counsel elaborated upon that submission by reference to the in rem nature of a determination of native title rights and interests, referring to the decision of Drummond J in Wik Peoples v Queensland [1994] FCA 967. In particular, counsel submitted that any attempt by Mr Birtwistle-Smith or by the other applicants in the claims by the First Nations of the South East to establish facts contradicting the basis for a consent determination in Ngarrindjeri Part A could be characterised as an abuse of process of the kind discussed in Dale v State of Western Australia [2011] FCAFC 46 at [92][94], [112][114].
The State argued that Mr Birtwistle-Smith’s interest should be characterised as an interest in the evidence to be given in the Ngarrindjeri Part A proceedings, an interest of a kind insufficient for the purposes of s 84(5), relying on paragraph [30] of Wilson on behalf of the Bandjalang People v Department of Land and Water Conservation [2003] FCA 307.
[22] Both the Ngarrindjeri People [24] and the State of South Australia [23] disputed that Mr Birtwistle-Smith has an interest of the requisite kind.
[24] ‘Counsel for the Ngarrindjeri Native Title Claim Group submitted that Mr Birtwistle-Smith does not claim any interest in the area claimed in Ngarrindjeri Part A, only an interest in the First Nation of the South East People’s claim not being prejudiced by the proposed consent determination in Ngarrindjeri Part A. He also noted that Mr Birtwistle-Smith had not provided any evidence that he had any genealogical connection to any of the five apical ancestors in question, meaning the interest claimed by Mr Birtwistle-Smith could only arise by reason of his membership of the First Nations of the South East Claim Group.’
[25] White J found that the submissions did not preclude Mr Birtwistle-Smith from having a relevant interest. That is because the inclusion or exclusion of the five apical ancestors in question may be capable of bearing upon the identity of the society at sovereignty, now relied upon for the asserted native title rights and interests by the First Nations of the South East.
[26] - [27] His Honour did not consider the interlocutory proceedings appropriate for the determination of the abuse of process issue, but should be raised if and when it arises, in the context of an actual factual dispute. However, his Honour was prepared to assume that Mr Birtwistle-Smith has a relevant interest which may be affected by the determination in Ngarrindjeri Part A (at [27]), but held that it was not in the interests of justice to make an order joining him as a respondent party (at [28]).
Exercise of discretion
[29] White J reasoned that the Ngarrindjeri claim has been on foot for 19 years, a period in which Mr Birtwistle-Smith could have brought his application for joinder. The application was not brought until 31 August 2017, after the Court had made the arrangements for the consent determination in Ngarrindjeri Part A.
[31] His Honour found the explanation for lateness provided in Mr Jantke’s affidavit unpersuasive. Mr Jantke did not assert any lack of awareness by Mr Birtwistle-Smith of the Ngarrindjeri Native Title Claim, nor of its progress within the Court, nor of the identity of the apical ancestors named in the Ngarrindjeri Native Title application. His Honour inferred that the existence of that claim is well known, particularly to SANTS, the legal representative for Mr Birtwistle-Smith and the First Nations of the South East claim group, and a party to the Ngarrindjeri Native Title Claim since 2008. His Honour found it particularly pertinent that at the hearing on 27 July 2017, neither SANTS nor Mr Birtwistle-Smith raised any objection to the Court putting in place the timetable for the Ngarrindjeri Part A consent determination.
[34] White J determined that there is a significant prospect of prejudice to the existing parties to Ngarrindjeri Part A if the joinder is allowed. White J stated at [37] that in considering the potential detriment to the applicant he also had to consider the relative lateness of the application for joinder.
Counsel for Mr Birtwistle-Smith referred to the potential in that event for there to be a round of negotiations concerning the identity of the apical ancestors, a conference of experts and ultimately for a trial to resolve disputed issues of fact. His Honour considered at [34] that ‘the very existence of that prospect, and the delay associated with it, illustrates the potential detriment to the parties in Ngarrindjeri Part A presently. That is especially so, given the significant work which has been done to date in preparing the matter for the consent determination.’
[41] Finally, his Honour found that joining Mr Birtwistle-Smith would cause significant delay to the resolution of the Ngarrindjeri claims and dismissed his application for joinder. White J also considered the overarching purpose of the civil practice and procedure provisions set out in section 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act) as well as the obligation for parties to act consistently with this overarching purpose as set out in section 37N of the FCA Act. The provisions empower the Court to take into account the public interest in having proceedings conducted with efficiency and economy.
[43] White J was not satisfied that the interests of justice require the Court to accede to the application of Mr. Birtwistle-Smith, even assuming that he does have the requisite interest. [44] Accordingly the interlocutory application filed 31 August 2017 was dismissed and the matter adjourned to the case management conference of 20 October 2017 and otherwise for the consent determination on 14 December 2017.