Barker J
In this case, the Court dismissed an application filed by Ms Joan Ashburton and Ms Sandra Hayes (referred to as the interlocutory applicants) who wanted to be joined as parties to the Puutu Kunti Kurrama and Pinikura people’s native title claim. On 19 August 2015, the State and claimants had filed a minute of proposed consent determination, this was accompanied by a joint submission that the determinations sought were both appropriate and within power, and otherwise in accordance with the Native Title Act 1993 (Cth) (NTA). The proceedings had been listed for a consent determination hearing on 2 September 2015.
Shortly before the hearing date the interlocutory applicants sought permission to be joined as respondents and the hearing adjourned as they wished to be independently heard before the native title rights and interests are finally determined.
Should the interlocutory applicants be joined as respondents?
The Court considered the breadth of the court's discretion regarding joinder and concluded at [19] that there is no necessary legal impediment to a member of a native title claim group being joined, or remaining, as a respondent party to the claim, although the permitted circumstances will be rare.
While the Court accepted at [20] that the interests of the two interlocutory applicants would arguably be affected by the proposed consent determination, Barker J ultimately held at [66] that given the circumstances it was not in the interests of justice that they be joined. The interlocutory applicants had argued that the terms of the proposed consent determinations are contrary to traditional law and custom.
Justice Barker emphasised at [56] that the NTA operates on the basis that the authorised named applicants make decisions about the claim. Further, unless there is a very good reason to intervene, this process should be respected by the Court and operate without judicial interference. As a result, the Court will rarely intervene. Whether or not the form of the determination is exactly what each member of the claim group would prefer is not the issue. The issue is that, consistently with the objects of the NTA, the parties have negotiated and reached an agreement, acceptable to all parties, as to the terms of a consent determination.
Justice Barker also noted at [62] that the application for joinder could have been brought much earlier, not just before the consent determination.
The parties were invited to make submissions on whether the interlocutory applicants should pay the applicant's costs.