FEDERAL COURT OF AUSTRALIA Rubibi v The State of Western Australia [2002] FCA 876 NATIVE TITLE – application for determination of native title – joinder of native title claimants as respondents - whether persons claiming different native title rights and interests to those claimed by the applicants are persons whose interests may be affected by a determination in the proceedings and should be joined as respondents - whether Court has jurisdiction to make a determination of native title in favour of the joined respondents in the absence of an application by them for a determination of native title made in accordance with the Native Title Act 1993 (Cth) Native Title Act 1993 (Cth) ss 13, 84(5), 61, 66B and 225 Rubibi Community v Western Australia (2001) 112 FCR 409 – cited Rubibi Community v State of Western Australia [2001] FCA 1553 - cited Yarmirr v Northern Territory (Unreported, Federal Court of Australia, Olney J, 4 April 1997) - distinguished Western Australia v Ward (2000) 99 FCR 316 - applied Munn v State of Queensland [2002] FCA 486 - cited Britten v State of Western Australia [No 2] [2002] FCA 163 - cited FRANK SEBASTIAN AND OTHERS ON BEHALF OF THE RUBIBI COMMUNITY AND ROSIE CHARLIE ON BEHALF OF THE LANGANDJANO MOB v THE STATE OF WESTERN AUSTRALIA AND OTHERS WAG 6006 AND 6238 OF 1998 JUDGE: MERKEL J DATE: 11 JULY 2002 PLACE: MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6006 AND 6238 OF 1998 BETWEEN: FRANK SEBASTIAN AND OTHERS ON BEHALF OF THE RUBIBI COMMUNITY FIRST APPLICANTS ROSIE CHARLIE ON BEHALF OF THE LANGANDJANO MOB SECOND APPLICANTS AND: THE STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENTS JUDGE: MERKEL J DATE OF ORDER: 11 JULY 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Margaret Mary Robinson, Edward Leonard Roe and Peter Matsumoto ("the joined respondents") be joined as respondents in the proceedings. 2. In the event that the joined respondents wish to dispute any of the facts set out in the points of claim they are to file and serve, no later than 1 August 2002, a document ("Points of Response") which identifies: (a) the facts set out in the first applicant's points of claim and the second applicant's points of claim that are disputed by the joined respondents; (b) any additional facts or contentions relied upon by the joined respondents in opposition to the first or second applicants' claims; (c) any further or alternative orders sought by the joined respondents. 3. The costs of the application for joinder be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6006 AND 6238 OF 1998 BETWEEN: FRANK SEBASTIAN AND OTHERS ON BEHALF OF THE RUBIBI COMMUNITY FIRST APPLICANT ROSIE CHARLIE ON BEHALF OF THE LANGANDJANO MOB SECOND APPLICANT AND: THE STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENT JUDGE: MERKEL J DATE: 11 JULY 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Margaret Mary Robinson, Edward Leonard Roe and Peter Matsumoto ("the Walman Yawuru claimants") have applied under s 84(5) of the Native Title Act 1993 (Cth) ("the NTA") to be joined as respondents in the proceedings on the ground that they are persons whose "interests may be affected by a determination in the proceedings". 2 The joinder is supported by the State of Western Australia ("the State") but is opposed by the first applicants ("the Rubibi claimants") and by the second applicants ("the Leregon claimants"). The other respondents who appeared on the joinder application did not oppose the joinder. 3 The Rubibi claimants and the Leregon claimants have filed competing applications for native title under s 13 of the NTA in respect of certain land and waters in the Broome region in the State of Western Australia. The Rubibi claimants and the Leregon claimants have previously had native title claims made on their behalf under s 13 of the NTA against the State in relation to an Aboriginal law ground near Broome: see Rubibi Community v Western Australia (2001) 112 FCR 409 and Rubibi Community v State of Western Australia [2001] FCA 1553. 4 The Walman Yawuru claimants, who were not parties in the previous proceeding, contend that as members of the Walman Yawuru people they have competing and conflicting native title rights and interests in respect of part of the area being claimed by the Rubibi claimants and the Leregon claimants. The native title rights and interests claimed by the Walman Yawuru claimants relate to an area described by them as "the clan's traditional lands which are broadly described as being between Mangrove Point in Broome and Severo Creek, which flows into Roebuck Bay and adjacent waters". 5 It appears to be common ground for the purposes of the joinder application that the Walman Yawuru claimants, and the Walman Yawuru clan they claim to represent, are descendants of Nyobing Babere and Chimbere Sitocay and therefore are members of the Aboriginal community that will be entitled to the benefit of the communal native title rights and interests that would be granted if the native title applications of the Rubibi claimants, or the Leregon claimants, succeed. Indeed, the Leregon claimants are claiming, inter alia, the "traditional land and estates of the Walman Yawuru family groups" and one of the named applicants in the Rubibi claimants' claim, Michael Corpus, has been said to have been named as an applicant because he is a member of the Walman Yawuru clan. The Walman Yawuru claimants dispute the genealogy prepared by the Rubibi claimants but it is unnecessary to consider that dispute for the purposes of the joinder application. 6 As a result of a procedural error made in the Native Title Tribunal the Walman Yawuru claimants had previously been named as applicants in the Rubibi claimants' proceeding but, by an order made by consent on 17 October 2001, they were removed as applicants at their request and were granted leave to become part of the Leregon claimants "subject to their claim being appropriately specified". The Walman Yawuru claimants had initially joined with the Yawuru claimants, and more recently sought to join with the Leregon claimants, but it appears that differences within the claimant groups resulted in the Walman Yawuru claimants seeking to contest both claims on the basis that they have a different and distinct case to present concerning their claim to native title rights and interests in part of the claim area. The Walman Yawuru claimants have filed material, including a preliminary report by an anthropologist, seeking to explain the basis for their claim. 7 There is some justification for the complaint of the existing claimants that the Walman Yawuru claimants should have sought to be joined as respondents at a much earlier stage of the proceedings. However, I am not satisfied that any party has suffered any prejudice by reason of the timing of the present application, which should be considered on its merits. 8 In substance, the case for joinder put on behalf of the Walman Yawuru claimants, and supported by the State, is as follows. The Walman Yawuru claimants are persons whose native title rights and interests may be affected by the determinations sought in the proceeding. The evidence establishes that the native title rights and interests being claimed by the Walman Yawuru claimants differ from those being claimed by the Rubibi claimants and the Leregon claimants. In making any determination of native title under s 225 of the NTA the Court will be required to determine: · the nature and extent of the native title rights and interests in relation to the determination area; · the nature and extent of any other interests in relation to the determination area; · the relationship between those other interests and the native title rights and interests claimed by the claimants. 9 The Walman Yawuru claimants propose to adduce evidence of their native title rights and interests in the claim area in order to dispute the nature and extent of the native title rights and interests claimed by the Rubibi claimants and the Leregon claimants. They also wish to claim their own native title rights and interests in relation to part of the claim area. Accordingly, the Walman Yawuru claimants' interests may be affected by the determinations sought and their claims ought to be heard and determined in the proceedings in which the claims of the Rubibi claimants and the Leregon claimants are to be determined. The joinder will ensure that the interests of the Walman Yawuru claimants will not be adversely affected by a determination in the proceeding without those claimants having the opportunity to be heard, and that all matters in dispute arising from competing native title claims to the claim area are adjudicated upon in the same proceeding. 10 The substance of the contentions of the Rubibi claimants, which were adopted by the Leregon claimants, may be summarised as follows. The Walman Yawuru claimants are seeking a determination of communal native title in their favour on behalf of the Walman Yawuru clan. A claim for a determination of native title can only be pursued by an application made under s 61 of the NTA, which must comply with the provisions of Div 1 of Pt 3 of the NTA. Accordingly, it is a misconception on the part of the Walman Yawuru claimants to seek to be joined as respondents in order to pursue a claim to native title. Thus, the Court should not accede to an application for native title by the Walman Yawuru claimants as respondents, rather than as applicants. Further if the Walman Yawuru claimants, who are members of both claimant communities, wish to dispute how the native title claims are being proceeded with by the existing claimants it is open to them to apply under s 66B of the NTA to replace either of the existing applicants in respect of the area they have claimed. In any event, the interests of the Walman Yawuru clan or family group are being adequately represented by the Rubibi claimants and, in particular, by Michael Corpus. 11 The last contention can be disposed of briefly. Whether Michael Corpus is the appropriate representative of the Walman Yawuru clan is a disputed issue which cannot be determined at this stage on the evidence presently before the Court. Indeed, it may not even be resolved prior to or at trial. In those circumstances I do not accept that it is a ground for refusing the joinder sought by the Walman Yawuru claimants. 12 The Rubibi claimants relied on the decision of Olney J in Yarmirr v Northern Territory (Unreported, Federal Court of Australia, Olney J, 4 April 1997) ("Yarmirr"). In Yarmirr an application for joinder as a respondent was made by an Aboriginal person who claimed that, although she was not a member of the claimant group, under the law, customs and traditions of her people she was entitled to fish in the waters claimed by the claimant community. Olney J refused the application for joinder in so far as it was based on that ground stating that the Court "has no jurisdiction" to determine the applicant's claim of native title without the applicant filing an application in accordance with s 61 of the NTA. Olney J, however, permitted joinder as a result of the applicant's commercial fishing interests, but on the basis that she was not entitled to rely upon her claimed native title rights and interests. 13 Yarmirr is distinguishable from the circumstances of the present case in two important respects. In the present case the Walman Yawuru claimants are persons on whose behalf native title rights and interests are being claimed by the Rubibi and the Leregon claimants in accordance with s 61 of the NTA. In Yarmirr the applicant for joinder was not a person on whose behalf native title rights and interests were being claimed. Rather, she was a stranger to the proceedings seeking to claim discrete native title rights and interests to the waters pursuant to the traditional laws and customs of a people who were not part of the claimant group. Secondly, the Walman Yawuru claimants are also seeking to be joined in order to oppose the native title rights and interests claimed and contend that, to the extent those rights and interests are inconsistent with their rights and interests, the claimants' rights and interests ought not to be the subject of a determination of native title. There can be no doubt as to the Court's jurisdiction to hear and determine the grounds of opposition in so far as they relate to the matter being adjudicated upon by the Court namely, the existence, nature and extent of the native title rights and interests being claimed by the Rubibi and Leregon claimants. 14 The decision of Olney J to refuse joinder was based on his Honour's view that the Court had no jurisdiction to make a native title determination in respect of a claim to native title by a non-claimant party without that party having filed an application for native title under s 61 of the NTA. His Honour's decision is therefore not authority for the Rubibi claimants' contention that the Court has no 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. 15 The capacity of a respondent to assert and claim a determination of native title was considered by Beaumont and von Doussa JJ in Western Australia v Ward (2000) 99 FCR 316 ("Ward") at 369: "190. The scheme of the NTA was and is to have before the Court in a matter that requires curial determination, all parties who hold or wish to assert a claim or interest in respect of the defined area of land. This process is to bring about a decision which finally determines the existence and nature of native title rights in the determination area, and which also identifies other rights and interests held by others in respect of that area. As the determination is to be declaratory of the rights and interests of all parties holding rights or interests in the area, the determination operates as a judgment in rem binding the whole world: Wik Peoples v Queensland (1994) 49 FCR 1. 191. Lee J dismissed the challenge to the jurisdiction of the Court to make a determination of native title in favour of the Balangarra Peoples, saying (at [ALR] 552): 'It is apparent from the provisions and objects of the Act that the court is given jurisdiction to resolve a dispute by determining whether native title exists. Once a matter attracting jurisdiction is before the court the whole of the dispute as to the existence of native title in respect of the land the subject of the application referred to the court, and arising out of the facts which underlie that matter, can be dealt with by the court if the appropriate parties are properly joined to the litigation to have that dispute resolved.' 192. In our opinion Lee J was plainly correct in so holding. Even if the Balangarra Peoples had not obtained leave to be joined as an applicant, and had participated in the hearing as respondents, the jurisdiction of the Court extended to making an order which determined that they held native title rights and interests within the determination area. Section 225 expressly requires the Court to determine the persons or each group of persons holding the common law rights comprising native title, and the nature and extent of those rights and interests. Section 225 does not limit the jurisdiction of the Court solely to defining the rights and interests of the named persons who initiate the claim for a determination of native title. 193. Section 213(1) of the NTA provides that if, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in the NTA. In our opinion that requirement was fulfilled in respect of the determination in favour of the Balangarra Peoples. The Balangarra Peoples were parties claiming an interest in the area the subject of the claim. They became parties as respondents pursuant to s 68 of the old Act. Their participation in proceedings was therefore in accordance with the procedures of the NTA and, as we have noted, the provisions of s 225 and the in rem nature of the proceedings required the Court to make a determination in respect of the rights and interests claimed by them. Upon their establishing the rights and interests claimed, they were entitled to a favourable determination declaring those rights and interests. The fact that the trial judge, as a matter of procedural convenience, gave leave to the Balangarra Peoples to become applicants, did not affect the jurisdiction of the Court to make a determination in respect of their rights and interests. Moreover, when judgment was delivered, s 67 of the new Act required that the Court make such order as it considered appropriate to ensure that the overlapping claim of the Balangarra Peoples be "dealt with in the same proceeding". 194. The challenge to the jurisdiction of the Court in respect of the determination in favour of the Balangarra Peoples fails." 16 Their Honours appear to accept that the Court has jurisdiction to resolve all disputes concerning native title rights and interests in an area the subject of a claim for native title made in accordance with the NTA and, in doing so, to make a determination of native title in respect of that area on the application of a respondent who has been joined as a party in the proceedings. Whilst it was put on behalf of the Rubibi claimants that the relevant respondents in Ward were also applicants, this fact was not critical to their Honours' decision. 17 The preferable view, in a case such as the present, is that the absence of an application under s 61 of the NTA by the persons wishing to claim native title as respondents, and the absence of an application to replace the existing claimants under s 66B are considerations that go to discretion rather than jurisdiction. Accordingly, I have concluded that Yarmirr does not preclude the joinder being sought in the present application. 18 For the above reasons I am satisfied that the Court has jurisdiction to resolve the dispute between members of the claimant communities as to the existence, nature and extent of the native title interests that are being claimed. At this stage it is unnecessary to finally determine whether, as part of its resolution of that dispute the Court has jurisdiction or power to make a determination of native title in favour of the respondents. 19 Although Yarmirr does not preclude the joinder being sought the question remains whether the joinder application should be acceded to. The Walman Yawuru claimants have adduced some evidence that the native title rights and interests being claimed by them in respect of parts of the claim area differ from the native title rights and interests being claimed by the other claimants. In any event, it is not seriously in dispute that the Walman Yawuru claimants are persons whose interests may be affected by the determination being sought by the other claimants. In that regard in Munn v State of Queensland [2002] FCA 486 Emmett J, after referring to s 225, observed at [7]-[8]: "Thus, in a sense, a determination of native title is a determination in rem. In recognition of the nature of a native title determination, s 67 directs that, if two or more proceedings before the court relate to native title determination applications that cover, in whole or in part, the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding. The clear intention is that a determination should be a final resolution, once and for all, of the extent of native title in relation to a particular parcel of land. However, it does not necessarily follow that a native title interest would not constitute interests that might be affected by a determination made in a proceeding under the Act. The holder of a native title interest may have sufficient interest to warrant participation in a proceeding, notwithstanding that the Court could not make a determination in relation to that interest in the proceeding in question. I would therefore with respect decline to follow any judgment which indicates that a claim to native title is not of itself sufficient interest to justify joinder under s 84(5). However, in the absence of any opposition, it is not essential for me to resolve that question." 20 The Walman Yawuru claimants' contention that they should be joined as respondents in the proceeding in order to resolve the dispute over native title in respect of the claim area is supported by the observations of Gray J in Britten v State of Western Australia [No 2] [2002] FCA 163 at [8] that the purpose of joining as respondents native title claimants in respect of overlapping areas: "…is to ensure that all parties with possible interests in the overlapping area are before the Court in a single proceeding in which the question of a determination of native title in relation to the overlapping area can be determined. The addition of those who are claimed to be native title holders of the overlapping area in the Jiddngarri application as parties to the Purnululu application cannot and will not pre-empt the determination of any issue. In particular, it will not amount to the expression of any opinion as to who are the native title holders, if any, in respect of the overlapping area. It will enable a proper determination to be made, because all competing interests will be represented in the one proceeding in relation to the overlapping area." and at [15]: "My only concern at the present stage is that all those who might have interests in the determination of native title in relation to the overlapping area should be parties to a single proceeding, so that the issue of such a determination can be dealt with in a way that will bind all necessary parties. In my view, the proposed orders will tend towards accomplishing this object." 21 I respectfully agree with his Honour's observations. However, the Rubibi claimants submitted that if the joinder sought in the present case were permitted it would result in a situation in which any person who is a member of the claimant community would be entitled to dispute any aspect of the claim as a respondent. 22 If a member of the claimant community seeks to be joined for the purpose of merely disputing the manner in which a claim is being contested or some incidental aspect of it, rather than to oppose the claim on substantive grounds or to assert a competing communal native title right and interest which is inconsistent with the substantive native title rights and interests being claimed, then the discretionary issues raised by the Rubibi claimants, including that the proper course is to apply for replacement of the applicants under s 66B, may have some force. 23 However, the Walman Yawuru claimants, as members of the Walman Yawuru clan or family group, are claiming a competing communal native title claim in respect of part of the claim area. Thus, this is not a case where one or more individuals are merely seeking to dispute the manner in which an applicant group is contesting his or her claim or some incidental aspect of it. 24 For the foregoing reasons I am of the view that the submissions of the Walman Yawuru claimants should be generally accepted. Accordingly, it is appropriate to order that the Walman Yawuru claimants be joined, pursuant to s 84(5) of the NTA, as respondents to the proceeding. I propose to make directions that will ensure that the current timetable is not adversely affected by the joinder. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 11 July 2002 Counsel for the First Applicants: Mr Kevin Bell QC with Mr George Irving Solicitor for the First Applicants: Kimberley Land Council Appearing for the Second Applicants: Mr D Johnson Counsel for the Respondents: Ms Raelene Webb Solicitor for the Respondents: Crown Solicitor Counsel for the Commonwealth of Australia: Mr Alex Rorrison Solicitor for the Commonwealth of Australia: Australian Government Solicitor Counsel for the WAFIC: Mr Marshall McKenna Solicitor for the WAFIC: Hunt & Humphry Solicitor for Telstra: Blake Dawson Waldron Counsel for Margaret Mary Robinson, Edward Leonard Rowe and Peter Matsumoto on behalf of the Walman Yawuru People: Mr Ian Viner QC Solicitor for Margaret Mary Robinson, Edward Leonard Rowe and Peter Matsumoto on behalf of the Walman Yawuru People: Auburn & Associates Date of Hearing: 7 June 2002 Date of Judgment: 11 July 2002