McKerracher J
In this decision, McKerracher J made orders joining three parties, Margaret Todd, Lindsay Todd and Phyllis Harris (Todds), as respondents to the Yindjibarndi #1 native title application.
Considerations
Whether the interests of the joinder applicants would be affected by a determination of native title over the claim area and whether it was in the interests of justice for the applicants to be joined as respondents.
Section 84(5) of the Native Title Act 1993 (Cth) (NTA) empowers the Court to join a party to proceedings if satisfied that:
the person has an interest;
that interest may be affected by a determination in the proceedings; and
whether, in any event, the court should join the party.
McKerrarcher J noted that the Todds provided affidavit evidence in support of their claim as Yinjibarndi people and that the interests they seek to protect are native title interests which arise on the basis that they are also Yindjibarndi People.
The Yindjibarndi applicant argued that the Todds' evidence was weak and submitted that no prima face case is established. The Yindjibarndi applicant also argued that the identity of the apical ancestors of the Yindjibarndi should be a matter for the Yindjibarndi to investigate and determine, rather than being decided by the Court.
McKerrarcher J formed the view that although the evidence brought forward by the Todds did not provide for a strong case, it was based on their own oral history concerning the identity of their ancestors and was also based on their self-identification, and history as set out in the affidavits in support of the application. This fitted with the conventional manner in which matters of this nature are proven in native title litigation, as provided in s 72 and s 78A of the Evidence Act 1995 (Cth).
The Court noted that many of the arguments advanced by the Yindjibarndi would find strong support in well-funded, well-resourced litigation and it is a regrettable fact, however, that intra-indigenous disputes are common in native title.
McKerrarcher J concluded that it was significant that the Todds are not asserting that native title is held by a different society or group and the evidence at this juncture of the proceedings was sufficient to get the application over the line, but, difficulties will be encountered in the longer term if the evidence is not enhanced.