In this case, the Court heard an application to join three Aboriginal parties to the Nangaanya-ku native title claim under s 84(5) of the Native Title Act 1993 (Cth) (NTA). The applications were opposed by the Nangaanya-ku native title applicants and the State of Western Australia. The land in question is in the Central Desert region of WA.
Submissions
Ms Harkin and Mr Wells
Ms Harkin and Mr Wells had previously filed a native title application under s 61 of the NTA on behalf of the Nanatadjarra People. The Nangaanya-ku applicant was joined as a respondent to that proceeding in December 2019 and successfully sought dismissal of that application in October 2020 on the basis that the Nanatadjarra application had no reasonable prospects of establishing that the claim was authorised as required by ss 61(1) and 251B of the NTA: Harkin on behalf of the Nanatadjarra People v State of Western Australia (No 2) [2021] FCA 3.
Relying on Reeves J’s decision in Malone v State of Queensland [2019] FCA 2115, Ms Harkin and Mr Wells submitted that as descendants of the apical ancestors listed in the Nangaanya-ku native title claim group, they had a ‘strong prima facie interest’ in the Nangaanya-ku claim. Further, they submitted that those apical ancestors should not be used in the Nangaanya-ku claim without their permission.
Mr Fraser
Mr Fraser submitted that he was a Senior Wati of the Central and Western Desert areas and had special authority in the Nangaanya-ku claim area. He submitted that a determination without Wati would exclude a significant aspect of traditional law and custom. A Senior Wati who had previously been involved in the Nangaanya-ku application had resigned.
Decision
Ms Harkin and Mr Wells
The Court found that it was ‘not in the interests of justice’ for the applicants to be joined to the Ngangaanya-ku native title claim. Griffiths J held that this flowed from the status and histories of the Nangaanya-ku and Nanatadjarra Claims and the general nature of Ms Harkin and Mr Wells’ concerns. In particular, His Honour noted a difference between concerns or interests sufficient to warrant joinder and those which must result in joinder. His Honour noted the ‘sweeping generality’ of the applicants’ concerns. His Honour also found that as the Nanatadjarra claim was found to be a ‘subgroup’ of those holding native title interests in the claim area, it was not in the interests of justice to join Ms Harkin and Mr Wells. Furthermore, His Honour found that Ms Harkin and Mr Wells’ desire to give evidence involved ‘intra-mural’ matters which was not a proper basis to join them. Finally, he accepted the opposing parties’ submission that the joinder would cause delay and further expense to the progress of the claim, potentially jeopardising a consent determination.
Mr Fraser
His Honour rejected Mr Fraser’s joinder application on the basis that Mr Fraser sought to give evidence on matters that did not require evidence. His Honour distinguished a number of other similar cases as distinct.