On 17 August 2018, Barker J dismissed the interlocutory application of Mr Phillip William Dhu seeking adjournment and to be joined as a party to the Nyiyaparli claimant proceeding under the Native Title Act 1993 (Cth) (NTA).
Adjournment application
Barker J dismissed Mr Dhu’s application for an adjournment to seek to identify and produce the agreement referred to at para 25 of the affidavit of Mr Dhu, made 3 August 2018. The application for an adjournment was opposed on behalf of the Nyiyaparli applicant in the proceeding. Mr Dhu had argued that adding the apical ancestor known by the English name, Daisy, to the Nyiyaparli claim group description would adversely affect the interests of Mr Dhu and members of his family and related families have under that agreement. His Honour held that Mr Dhu was obligated to state which provisions could result in an adverse effect.
His Honour held that the adjournment application should be refused in light of Mr Dhu’s decision not to produce the agreement. His Honour further noted that it would be inappropriate to allow the adjournment at such a late stage in the proceeding, with the Nyiyaparli proceeding to a consent determination, with a case management hearing scheduled for the following week.
Joinder application
Barker J did not accept that Mr Dhu’s interests may be affected by the consent determination that is currently proposed. Mr Dhu argued that Mr Dhu and the others who have made affidavits in the proceeding may be more likely not to receive benefits under the agreement mentioned at para 25 of Mr Dhu’s affidavit. Mr Dhu contended that he and some of the others identify as Banjima People. They proposed that an inquiry be conducted by the National Native Title Tribunal to ascertain if, indeed, they are not Banjima People. His Honour held that that question was authoritatively determined by the contested native title proceeding in Banjima People v Western Australia and Others (No 2) [2013] FCA 868. The Court positively found in that case that it could not be satisfied that Daisy was an ancestral member of that Banjima claimant group. There was material suggesting that she might, ancestrally, be part of the Nyiyaparli group. Barker J rejected the notion that there be an inquiry by the NNTT on that basis.
At para 25, Mr Dhu points out that, after the Banjima native title determination, he, together with other descendants of Daisy, negotiated and concluded an agreement in writing known as the Benefits Management Structure or BMS with (a) Banjima common law holders; (b) Martu Idja Banyjima; (c) BHP Billiton; and (d) Rio Tinto. Mr Dhu expressed concern that if Daisy’s name remains on the consent determination in the Nyiyaparli matter, that could prejudice the payments that they receive under that agreement. Barker J rejected that conclusion due to the terms of the proposed Nyiyaparli consent determination, which states that mere ancestral connection by Mr Dhu, for example, with Daisy is not enough to make him a Nyiyaparli person. He would have to identify as a Nyiyaparli person, which he does not. His Honour agreed with the submission put on behalf of the Nyiyaparli applicant that if Mr Dhu and others have interests and rights under those trusts, then they are more properly directed to the trustees of that trust.
Barker J held that the inclusion by the Nyiyaparli applicants of Daisy as one of their apical ancestors for the purpose of a consent determination will not have the effect that Mr Dhu asserts. Mr Dhu failed to demonstrate the type of interest that needs to be demonstrated to satisfy the first limb of s 84(5) of the NTA to enable the joinder of Mr Dhu as a respondent.
For the reasons outlined in the judgment, including the late stage at which the application was made where the question of Daisy's status has been lingering since about 2009 and 2010, and was sharpened by the determination in the Banjima case in 2014, his Honour was not satisfied that the interests of justice justify the adding of Mr Dhu as a party to this proceeding.