Background
This case concerns an application made to have Mr Rodney Chong and Ms Carol Chong (the Chongs) removed as respondents to the proceedings under s 84(8) of the Native Title Act 1993 (Cth) (NTA). The Chongs are Wakaman People. They were connected to the proceedings of the Wakaman native title claim group through an apical ancestor. They claimed to have not requested nor consented to being included in this group and that the claim did not represent their notion of Wakaman lands.
Construction Issue
The construction of both sections 84(3)(a)(ii) and (iii) of the NTA were at issue. The Wakaman Applicants contended that s 84(3)(a)(ii) should be construed to competing native title claims rather than dissentient members of the claim group. They also contended that ‘interest’ in s 84(3)(a)(ii) is limited to non-native title rights and interests.
Reeves J stated that there was no need to determine the construction issue. His Honour did not characterise the Chongs as dissentient members of the Wakaman claim group as they had not requested or consented to being included in the group. As such, the matter was not an ‘intra-mural dispute’ [30]. His Honour found that there is no indication in the text of s 84(3) which imposes the limitation that the applicant contended. His Honour agreed with Logan J’s view in Butterworth v Queensland (2010) 184 FCR 397 that s 84(8) is the mechanism to regulate improper joinders. This allows for the particular factual circumstances of each case to be considered.
Joinder Issue
Based on the facts, his Honour considered that the Chongs were not dissentient members of the claimant group. His Honour found the Chongs had pointed to a ‘clear and legitimate objective which [they] hope[d] to achieve’ through their long opposition. His Honour considered that the Chongs should continue to be respondents so that they were able to ‘protect their native title interests as they perceive them to exist from “erosion, dilution or discount”’. His Honour said that the appropriate forum to do this was the Court. If the disagreement between the Wakaman claim group and the Chongs continued it would need to be resolved by the Court regardless.
Conclusion
Due to the findings on the construction and joinder issues, his Honour dismissed the application by the Wakaman claimants to have the Chongs removed as respondent parties. The decision emphasises the reciprocal relationship between s 84(3) and s 84(8) of the NTA.