This matter involved two interlocutory applications, filed by Nangaanya-ku in December 2019 and Mr Harrington Smith in March 2020. Under s 84(5) of the Native Title Act 1993 (Cth), both applicants sought to be joined as respondents to the Nanatadjarra People’s native title claim. The Nangaanya-ku application was allowed and Mr Harrington Smith’s was dismissed. Bidarn Maisie Harkin, acting on behalf of the Nanatadjarra People, is the applicant in the ongoing proceedings, with the State of Western Australia responding.
The three elements considered in allowing a joinder under s 84(5) are (i) whether the applicant has an interest, (ii) whether the interest will be affected by the proceedings, or (iii) regardless, whether the court should exercise discretion to allow or disallow the party to be joined. At [10], Griffiths J summarised the principles to be considered in determining these three elements. Griffiths J also stated that having a native title interest is generally sufficient to satisfy the 'affected interest' requirement under s 84(5). However he did note the Court rarely allows a disputing minority of a native title group to become a party where the majority has proven they lack a basis for their claim.
The Nangaanya-ku People’s Application
The Nangaanya-ku People applied for a native title determination in 2018, which substantially overlapped with the Nanatadjarra People’s claim area. The Nangaanya-ku People hence submitted that the two claims needed to be joined in order to determine who holds common rights in the native title area under s 225 of the Native Title Act 1993 (Cth).
The application was opposed by the Nanatadjarra People, who submitted the Nangaanya-ku People’s interest could have been raised at the Nanatadjarra authorisation meetings in 2016, and the Nangaanya-ku People had the opportunity to become respondents earlier. It was also submitted that the Nangaanya-ku People lacked connection to overlapping land and waters in the claim.
Griffiths J agreed with the Nangaanya-ku submissions, which stated that concerns regarding authorisation, evidence and connection of their claim are substantive matters that should be dealt with in the proceedings. Although a moderate delay was noted in the filing of the Nangaanya-ku People’s claim, it was filed after the notification period of the Nanatadjarra People’s claim had expired. His honour held any delay did not prejudice the Nanatadjarra People as proceedings were not advanced and lacked urgency. Given the overlap, Justice Griffiths allows the Nangaanya-ku People’ to become a responding party in order to protect their own native title interests.
Mr Harrington Smith’s Application
Mr Harrington Smith’s application to be joined was based on claimed native title rights over an area within the Nanatadjarra People’s application. Mr Harrington Smith gave evidence proving his connection to the land, largely based on his heritage. Previously Mr Harrington Smith a member applicant in Harrington Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31. In this previous matter, Mr Harrington Smith submitted evidence which contradicted the ancestry he claimed in his present submissions. The Nanatadjarra People opposed the application, highlighting these contradictions. They submitted that Mr Harrington Smith lacked the basis to claim rights over the area within their claim, as a descendant of persons outside of the Nanatadjarra Claim area.
Mr Harrington Smith did not address the inconsistencies in his earlier and present submissions. Being self-represented, he was invited to make secondary submissions to respond to the contradictions.
Justice Griffiths found there remained disputed facts, unexplained inconsistency and omissions in Mr Harrington Smith’s evidence, but noted it was not the court’s role to resolve these.
Conclusion
His honour held that Mr Harrington Smith did not have the requisite interest to be joined in the proceeding. This was largely based on the fact that most of his submissions referred to places external to the Nanatadjarra claim area. The application was dismissed.