In this matter, Barker J dismissed the interlocutory application of seven Banjima common law holders seeking to become respondents to the Nyiyaparli native title application proceedings pursuant to s 84(5) of the Native Title Act 1993 (Cth), on the basis that they assert a native title interest as Banjima People in part of the Nyiyaparli claim area.
The Nyiyaparli native title claim WAD 6280 of 1998 was filed in September 1998, and was programmed for a consent determination in September 2018. In accordance with orders made in April 2018, a minute of proposed consent determination was filed on 31 August 2018. The seven Banjima common law holders (interlocutory applicants) applied to be joined as respondents on 28 August 2018. They proposed that the Nyiyaparli claim area be split into two discrete areas, Part A and Part B, with Part A proceeding to consent determination, as programmed, and Part B – in relation to which they assert a native title interest – to be resolved at a later date.
The Nyiyaparli applicant and the State of Western Australia opposed the joinder application, and submitted that the interlocutory application should be dismissed. They rejected the Part A/Part B splitting proposal.
Section 84(5) of the Native Title Act empowers the Court to join a person as a party to the proceedings at any time if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so. There are accordingly two joinder questions: (1) whether the interlocutory applicants have a relevant joinder interest; and (2) whether the Court in its discretion having regard to the interests of justice should order joinder.
The interlocutory applicants stated that they are Banjima People and seek to be joined to these proceedings by reason of their asserted native title in a small parcel of land within the Nyiyaparli claim area, the 'Iron Valley Area'. The interlocutory applicants submitted that a consent determination in favour of Nyiyarparli in respect of this area would be inconsistent with the findings in Banjima People v Western Australia and Others (No 2) [2013] FCA 868.
Barker J rejected that his Honour made a positive finding recognising Banjima native title in the Iron Valley Area. His Honour stated that the existence of Banjima native title in the Nyiyaparli claim area was not in issue in the Banjima judgment. The Banjima did not claim native title beyond the area identified in the maps which are now in the final determination. His Honour found at [24] that the evidence of an asserted Banjima native title interest in the area did not establish that the interlocutory applicants had ‘even a prima facie case that they would succeed in a native title claim over the Iron Valley Area’.
Further, the Court found that it was not in the interests of justice that the interlocutory applicants should be joined as a party to this proceeding due to the likely delay it would cause to the resolution of the Nyiyaparli claim and the lateness of the application. His Honour stated at [45] that ‘it is unreasonable conduct, to a high degree, for the interlocutory applicants to wait eight years before raising the prospect of an overlapping native title claim with the Nyiyaparli applicant, and to do so one month before the proposed Nyiyaparli consent determination and after the determination has been authorised by the Nyiyaparli claim group’: cf TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2016] FCA 553 especially at [113]-[119], [122]-[150].
Barker J also considered that the fact the interlocutory applicants’ interest relates to a relatively small area of land counted against the joinder. There was no evidence the area is of particular significance to the interlocutory applicants or other Banjima People; and the fact the area has never been the subject of a Banjima claim counts against any inference that it is. At [47]: ‘Banjima have a determination of native title over what has until now been understood, for Native Title Act purposes, to be the extent of Banjima traditional country.’
His Honour dismissed the application and ordered that the Court be notified of the intention of the Nyiyaparli applicant as to any application for costs by 4 September 2018.