In these proceedings, the Barngarla and Nukunu people sought determinations of native title in and around the city of Port Augusta in South Australia. Mr Andrew Starkey filed an interlocutory application to be joined as a respondent. The application was opposed by the Barngarla people, Nukunu people and South Australian government. The court dismissed Mr Starkey’s application with respect to the Barngarla claim, but ordered he be joined as a respondent to the Nukunu claim.
The Nukunu Claim
The Nukunu people claimed that Mr Starkey’s evidence was insufficient to establish a prima facie case that he had a relevant interest in the Nukunu claim. Charlesworth J rejected this claim. At [81], his Honour considered the grounds of the application: ‘The application for joinder must be assessed in accordance with the amended application that has been filed on behalf of the Nukunu people, not upon the outcome that the current parties may or may not expect to achieve on a negotiated outcome.’ His Honour, at [89] stated that Mr Starkey’s interests may be affected in a demonstrative way by the determination sought by the Nukunu people for the purposes of s 84(5) of the Native Title Act 1993 (Cth). He also concluded that Mr Starkey’s interest comes from Aboriginal law and custom, to the extent that the Aboriginal Heritage Act 1988 (SA) and its relevant protections of Aboriginal rights and interests did not preclude Mr Starkey from having an interest.
The Barngarla Claim
Charlesworth J found that the evidence relied upon by Mr Starkey was insufficient to demonstrate an impingement on his interests as they were described, and that there was no evidence to suggest access to the relevant sites had temporal limitations such as cultural responsibilities that must be carried out at a particular time. Nor was there any suggestion that discharge of those responsibilities required access to the sites at a fixed time to the exclusion of any other person, including a native title holder. For these reasons, his Honour held that there was not sufficient evidence to support his claim, even at a prima facie level.
Interests of Justice
On the issue of delay, his Honour concluded that Mr Starkey was not wholly responsible for the circumstance that led the dispute coming before the Court at such a late stage. In regard to the form of evidence, the court was worried by the lack of precision and clarity when Mr Starkey was self-represented, but felt that these concerns were mostly absolved by the engagement of a lawyer. His Honour made note of the court’s processes, namely the ability to remove him as a party to avoid abuse of the court and its processes. And finally, in respect to the subject matter, his Honour was satisfied that it is in the interests of justice that Mr Starkey be joined as a respondent to the Nukunu claim for the purpose of protecting his interests in sites in the claim area for which he has custodial responsibilities.