Rares J
Introduction
In this case, the Court considered an interlocutory application made by the cross-claimants pursuant to r 9.05, 9.09 or 9.11 of the Federal Court Rules 2011 (Cth). The cross-claimants sought to be substituted for their relatives who had either passed away or lacked capacity to act as a party in these proceedings. Each of the parties to the proceeding, other than the applicant (QGC Pty Limited), and the three respondent corporations (BCJWY Aboriginal Society Limited (in liq), Murra downs Limited and Boonyi Downs Pty Limited) was an individual who was a personal signatory to an Indigenous Land Use Agreement (ILUA). The ILUA was an area agreement within the meaning of s 24CA of the Native Title Act 1993 (Cth) (NTA). Section 24CD(1) of the NTA required that all persons in the native title group in relation to the area be parties to the ILUA. In order for the ILUA to be registered, s 24CG(3) of the NTA required that it include a statement to the effect of cl 2(b) in the ILUA, which outlined authority to enter into the agreement.
The Issues
The cross-claimants sought orders to substitute for each of the four deceased or incapacitated current parties to the proceeding, who were original signatories of the ILUA, a child or family member of that party (the joinder applicants). Each of the applicants asserted in separate documents that he or she:
Was a child or relative of the original signatory;
Was either the ‘successor’ or the ‘natural successor’ to the original signatory;
Had a right to be heard and make decisions on behalf of the original signatory as his or her ‘successor’, and on behalf of the relevant family or family groups whom the parent represented or identified with under, or when signing the ILUA; and
Had authorised Trevor Hauff or Trevor Hauff Lawyers, to act on his or her behalf in making the application for joinder and, thereafter pursue whatever rights he or she might wish to assert as a party.
Two other signatories to the ILUA (Kylie Jerome and Isobel Rabbitt) opposed the grant of relief sought in the application on the basis that the evidence adduced in support of the claim failed to establish any basis for joinder.
Consideration
There was no basis on which r 9.05 could support the joinder applicants being made a party to the proceeding because none of the joinder applicants had any status to suggest that he or she ought to have been joined originally as a party to the proceeding or was a person whose joinder was necessary to ensure that each issue in dispute was able to be finally determined. The joinders did not otherwise fall within the requirements of r 9.05(1)(b).
Additionally, there was no basis under the terms of the ILUA by which any of the persons who formed the native title party had a right to transmit their interest, upon their death, to a family member or anyone else. Rares J held that the ILUA was a document given statutory force that operated to confer benefits upon family groups represented by particular individuals who signed it. None of the signatories of the ILUA could create a ‘successor’ for the purposes of the ILUA by use of a devise in a testamentary instrument or by operation of law following that person dying intestate.
The structure of the ILUA was held to confirm this interpretation. His Honour fund that the ILUA was intended to be a means for distributing monetary benefits to native title holders. Apart from their self-assertions, which had no probative value, there was no evidence of any basis upon which any of the joinder applicants could claim to be a ‘successor’ of their parents and relatives.
Conclusion
For the above reasons, there was no basis to grant the relief sought in the interlocutory application, and it was dismissed.