Merkel J
In this case, Merkel J made orders that another group (the Walman Yawuru claimants) be joined as respondents to a native title determination application under s 84(5) of the Native Title Act 1993 (Cth) (‘NTA’) as their interests could be affected by a determination. The proceedings concerned competing applications for native title in respect of land and waters in the Broome region in Western Australia filed by the Rubibi and Leregon people. The Walman Yawuru people were members of both claimant communities, but asserted distinct and conflicting native title rights and interests in respect of part of the area being claimed.
The joinder application was opposed by the Rubibi and Leregon claimants, but was not opposed by the State of Western Australia as respondent.
Reasoning
The Rubibi claimants cited Yarmirr v Northern Territory (Unreported, Federal Court of Australia, Olney J, 4 April 1997) (‘Yarmirr’) as authority for the proposition that the Court did not have jurisdiction to hear and determine a claim to native title rights and interests in circumstances where one of the groups within the claimant community seeks to claim a different native title from that being claimed by the applicants and to do so as a respondent, rather than as an applicant.
Merkel J distinguished the case on the grounds that it concerned an application for joinder by a person claiming native title rights and interests deriving from a people not part of the claimant group. He concluded that the fact that the Walman Yawuru people had not made a native title determination application under s 61 of the NTA and had not sought to deal with the matter by way of an application under NTA s 66B to replace the existing claimants (as suggested by the Rubibi claimants) did not mean they could not be joined as respondents. However, they may be factors to consider when deciding whether they should be joined.
Decision
After considering the remarks of Gray J in Britten v State of Western Australia [No 2] [2002] FCA 163, Merkel J ordered that the joinder be allowed on the basis that it would help to resolve the dispute over native title and ensure that all parties with possible interests could be heard. Section 66B of the NTA was not an appropriate course of action as this was a dispute about the nature of native title rights and interests, not merely the manner in which the claim was contested.
Merkel J did not determine whether the Court ultimately had jurisdiction to make a determination of native title in favour of the Walman Yawuru people.