Federal Court of Australia Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia [2022] FCA 114 File number: WAD 142 of 2018 Judgment of: BROMBERG J Date of judgment: 16 February 2022 Catchwords: NATIVE TITLE – applications for joinder under s 84(5) of the Native Title Act 1993 (Cth) – consideration of Commonwealth of Australia v Clifton (2007) 164 FCR 355 – where joinder applicants claim to be members of the claim group and not a separate group – consideration of s 84(5) elements – whether joinder applicants have an interest – whether interest may be affected by a determination of native title – whether causative link between interest and prospective determination sufficient – whether interests of justice support joinder – nature of dispute sought to be agitated by the joinder discussed – whether dispute an intramural membership dispute or a dispute as to the criteria for membership of native title holding group – preference for intramural membership dispute to be dealt with by claim group or prescribed body corporate – availability of post-determination curial remedies for resolving membership dispute discussed including under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – whether joinder would cause significant prejudice to the native title applicant and claim group – applications dismissed Legislation: Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ss 141-25, 144-10, 576-25, 581-30, 586-1, 586-5, 700‑1 Judiciary Act 1903 (Cth) s 39B Native Title Act 1993 (Cth) ss 13, 56, 84, 225, 251B Native Title Legislation Amendment Act 2021 (Cth) Cases cited: Banjima People v State of Western Australia (No 2) [2013] FCA 868 Bell on behalf of the Wakka Wakka People #4 v State of Queensland [2020] FCA 695 Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369 at [21] Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 Commonwealth v Clifton (2007) 164 FCR 355 Dhu v Karlka Nyiyaparli Aboriginal Corporation RNTBC (No 2) [2021] FCA 1496 Dimer on behalf of the Jardu Mar People v State of Western Australia [2022] FCA 64 Drury v Western Australia (2016) 244 FCR 294 Far West Coast Native Title Claim v South Australia (No 2) (2012) 204 FCR 542 Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 Far West Coast Native Title Claim v State of South Australia (No 6) [2013] FCA 1270 Fulton v Northern Territory of Australia [2016] FCA 1236 Gamogab v Akiba (2007) 159 FCR 578 Harkin on behalf of the Nanatadjarra People v State of Western Australia [2020] FCA 1015 Jacob v State of Western Australia [2014] FCA 1106 Lander v State of South Australia [2016] FCA 307 Moses v Western Australia (2007) 160 FCR 148 Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 1) [2021] FCA 1463 Starkey v South Australia (2011) 193 FCR 450 State of Western Australia v Graham on behalf of the Ngadju People [2013] FCAFC 143 TR (Deceased) on behalf of the Kariyarra – Pipingarra People v State of Western Australia [2016] FCA 1158 Wakka Wakka People #2 v State of Queensland [2005] FCA 1578 Division: General Division Registry: Western Australia National Practice Area: Native Title Number of paragraphs: 80 Date of hearing: 16 December 2021 Counsel for the Darlot Applicant: Ms L Eaton Solicitor for the Darlot Applicant: Roe Legal Services Solicitor for the Interlocutory Applicants: Mr S Blackshield of Blackshield Lawyers Solicitor for the State of Western Australia: Mr P Ramsay of the State Solicitor's Office Counsel for Native Title Services Goldfields Ltd (Indigenous Respondent) Ms T Herrmann Solicitor for Native Title Services Goldfields Ltd (Indigenous Respondent) Native Title Services Goldfields Ltd ORDERS WAD 142 of 2018 BETWEEN: JUNE HARRINGTON-SMITH & ORS ON BEHALF OF THE DARLOT NATIVE TITLE CLAIM GROUP Applicant AND: STATE OF WESTERN AUSTRALIA & ORS Respondents order made by: BROMBERG J DATE OF ORDER: 16 february 2022 THE COURT ORDERS THAT: 1. Each of the applications of Alwyn Anderson, Eric Thomas Senior, Patricia Lewis, Vanessa Thomas, Kado Muir and Talbot Muir to be joined as a respondent is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BROMBERG J: 1 The following individuals have each made an application to be joined as a respondent to the proceeding: Alwyn Anderson; Eric Thomas Senior; Patricia Lewis; Vanessa Thomas; Kado Muir; Talbot Muir; and Troy Chapman. 2 At the hearing of these applications Mr Chapman's application was dismissed for want of prosecution on the basis that no affidavit had been filed in support of the application and it was no longer pressed. I will refer to the remaining applicants as the joinder applicants. 3 The joinder applicants' applications had the initial support of the first respondent, the State of Western Australia (State), but at the hearing the State explained that it neither opposed nor supported the applications but considered that it was a matter for the Court to decide. The State contended that there were good arguments both for and against joinder. The applications are supported by another respondent, Native Title Services Goldfields Ltd (NTSG), being the relevant native title representative body for an area which includes the area claimed (Darlot claim area) by the applicant (Darlot applicant). The applications for joinder are opposed by the Darlot applicant. 4 The joinder applicants seek the exercise of the discretionary power conferred on this Court by s 84(5) of the Native Title Act 1993 (Cth) (Act), which provides that: The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings and it is in the interests of justice to do so. 5 Section 84(5) requires that before joining a person as a party to the proceeding, the Court must be satisfied of the following three elements: (a) the joinder applicant has an interest (of the kind contemplated by s 84(5)); (b) the interest may be affected by a determination made in the proceeding; and (c) it is in the interests of justice for the Court to order the joinder sought. 6 I will say more about each of those elements shortly, but in flagging at this stage the issues which I need to confront, it is necessary that I also outline an issue which arises as to whether the joinder of the joinder applicants would be inconsistent with the principle in Commonwealth v Clifton (2007) 164 FCR 355. The relevant principle is that this Court cannot make a determination that native title is held by a particular group of persons, unless a native title determination application had been made under s 13(1) of the Act by a person or persons properly authorised by that group: see Clifton at [57]-[58] (Branson, Sundberg and Dowsett JJ); Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [15] (Reeves J). 7 It is convenient first to outline the purpose of the joinder applicants in seeking to be made respondents to the proceeding and the nature of the relevant dispute between them and the Darlot applicant. To do that I need to set out the claim group description as it is currently set out in Schedule A of the Originating Application (Darlot claim group description). The Darlot claim group description is as follows (with my bolded categorisations inserted for ease of reference): (a) Those Aboriginal people who are recognised under traditional law and custom as having rights in some or all of the Claim Area on one or more of the following bases: (i) Biological and/or socially recognised descent from one or more of the owners, under traditional law and custom, of some or all of the Claim Area at the time of non-Aboriginal settlement (descent limb); (ii) their own or an ancestor's birth on the Claim Area (birth limb); (iii) their own or an ancestor's migration to and long association with the Claim Area (long association limb); or (iv) the holding of religious, sacred or ritual authority under traditional law and custom for one or more places on the Claim Area (religious, sacred or ritual authority limb). (b) The descendants of the following ancestors are recognised under traditional law and custom as having rights in some or all of the Claim Area under categories (i) or (ii) above: (i) Majika mother's mother of Telpha Ashwin, Jumbo Harris and Kweelah; (ii) Siblings Peter Inkie, Jilyu Fanny & Titjipu-Peter Foley; (iii) Billy and his two wives Mary Ann and Mary parents of Daisy Cordella, Maggie (aka Wilgie), Julia aka Mundai, Amy aka Jinan Rex, Annie, Maniwa and Winnie; (iv) Inyarndi mother of Big Paddy Wheelbarrow, Little Paddy Wheelbarrow and Jimmy Wheelbarrow; (v) Ruby Shea; (vi) siblings Andy Fisher and Natha; (vii) siblings Beaman aka Charlie, Thadi and Dinah Evans; (viii) Nobby Nixon and his sister Milibindi; (ix) Mary Naringa; (x) Queenie Swan; (xi) Sarah Ashwin nee Brown (Marakali); and (xii) Minnie Narrier 8 The long association limb of the Darlot claim group description includes the phrase "migration to and". One of the identified aims of the joinder applicants was to be joined for the purpose of persuading the Court that any determination of native title should not include that phrase in its identification of the native title holders. Its inclusion was said to be an inappropriate conflation of two distinct concepts under Western Desert traditional laws and customs. 9 It is not necessary to explore the merit of that contention even on a prima facie basis because the stated purpose of the joinder applicants has been effectively overtaken. The Darlot applicant accepts that the phrase in question should be removed. On the basis that the Darlot applicant no longer presses for a native title determination which includes that phrase, the first identified purpose of the joinder applicants has effectively ceased to be relevant and is no longer relied upon. I need not be further detained by it. 10 I turn then to the second and now the sole stated purpose of the applications for joinder. 11 That purpose is described by the joinder applicants as, in each case, to have the joinder applicant's nominated ancestor or ancestors listed under the long association limb of the description of native title holders in any determination made by the Court as ancestors whose descendants are recognised as native title holders. In the case of the joinder applications made by Alwyn Anderson, Kado Muir and Talbot Muir, they each have an additional purpose which is that they be individually listed as native title holders under the religious, sacred or ritual authority limb of the description of native title holders in any determination made by the Court. Although the form of the amended description sought was not provided, as I understand it, the joinder applicants would like an additional list of names to be included in a paragraph which is to be structured much like para (b) in the Darlot claim group description. 12 It was not particularly clear until the hearing of the joinder applications whether the position of the joinder applicants was that: (a) they were each already encompassed within the Darlot claim group description, and thus members of the Darlot claim group, and were seeking to have a more particularised claim group description included in any native title determination to be made in the proceeding; or (b) alternatively, they were not persons encompassed by the Darlot claim group description and thus a separate group of persons seeking a positive determination of native title in their favour. 13 At the hearing of the joinder applications, the joinder applicants clarified their position as reflected in alternative (a) and not (b). 14 Prior to that clarification, the spectre of the principle in Clifton defeating the joinder applications was raised by me at the hearing of the joinder applications and became the subject of submissions made by each of the participating parties. I accept that given the clarified position of the joinder applicants as recounted above, the principle in Clifton is not an impediment to the joinder of the joinder applicants as respondent parties. 15 As clarified, the stated purpose of the joinder applicants is to have the native title holders described by the Darlot claim group description better particularised in any determination to be made by the Court. In simple terms, the claim to be pursued by the joinder applicants, if joined as respondents, would be that the form and not the substance of the native title determination sought by the Darlot applicant be amended. Such a claim is premised upon the joinder applicants (as well as other descendants of the ancestors they seek to have expressly included in the Darlot claim group description) being part of the Darlot claim group, rather than being a different and separate group of persons who seek to make and pursue a claim for the determination of native title in their favour in respect of the same claim area. 16 Clifton concerned a respondent to a native title determination application who, as a respondent, sought a native title determination in favour of a group of persons separate and distinct from the claimant group to the determination application. It was in that context that the Full Court held (as earlier stated) that this Court cannot make a determination that native title is held by a particular group unless a native title determination application has been made under s 13(1) of the Act by a person or persons properly authorised by that group. 17 The application of the principle in Clifton in relation to an application for joinder under s 84(5) of the Act was in my respectful opinion correctly stated by Rangiah J in Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369 at [21], where his Honour said (emphasis added): [a] member of another native title group cannot be joined as a respondent for the purpose of acting as a representative to assert native title rights on behalf of the other group. That is because the combined effect of ss 13, 61, 213 and 225 is that an application for a determination of native title can only be made by a duly authorised applicant using the procedures in Pt 3 of the [to Act]. 18 As White J stated in Lander v State of South Australia [2016] FCA 307 at [73], the purpose of a person seeking to be joined under s 84(5), or to remain a respondent and not be removed under s 84(8) of the Act, is important. In removing a respondent party on the basis that her purpose in remaining a respondent was to pursue a native title determination on behalf of a group other than the claim group (see at [74]), his Honour helpfully summarised the relevant principles at [73] as follows: The purpose of Raelene Warren is important. Persons seeking to be joined, or to remain as, a respondent to native title proceedings on the basis that they have native title rights and interests in the subject land which may be affected by a determination in the proceedings, are permitted to pursue only a personal claim in those rights and interests, that is, to protect them from erosion, dilution or discount: Munn v State of Queensland [2002] FCA 486 at [8]; Davis-Hurst (On behalf of the Traditional Owners of Saltwater) v Minister for Land and Water Conservation (NSW) [2003] FCA 541, (2003) 198 ALR 315 at [27]; Kokatha Native Title Claim v South Australia [2005] FCA 836, (2005) 143 FCR 544 at [24]; Worimi Local Aboriginal Land Council v Minister for Lands (NSW) [2007] FCA 1357, (2007) 164 FCR 181 at [16]-[17]; Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [18]-[19]; and Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [18]. If the persons seek instead, or also, to obtain a positive determination of native title, they must do so in the manner contemplated by the NT Act. This has the consequence that persons cannot be joined, or permitted to remain, as a respondent party if their purpose is to act as a representative to assert native title rights on behalf of other people: Isaacs at [19]; Munn at [9]; Moses v State of Western Australia [2007] FCAFC 78, (2007) 160 FCR 148 at [18]; Commonwealth of Australia v Clifton [2007] FCAFC 190, (2007) 164 FCR 355 at [48], [52]-[53], [57]-[58] and [61]; and Bonner at [19]. 19 Having found that the joinder applicants do not have a purpose which would disqualify their joinder as respondents, I now turn to whether their purpose, and the interests which they each claim to have, justify the joinder sought so as to enable the states of satisfaction required by s 84(5) of the Act as well as the positive exercise of the discretion there conferred. 20 I should do so on the premise upon which the joinder applications are founded, namely, that each of the joinder applicants (as well as the other persons who are also descendants of each joinder applicant's nominated ancestor or ancestors) are members of the Darlot claim group. It would be most unfair to the Darlot applicant for that premise to be used selectively in favour of the position of the joinder applicants on one relevant issue but then ignored on other issues where the premise may tend against the joinder sought. Deploying that premise universally also assists in identifying more fully the nature and extent of the purpose of the joinder applicants in being joined, including the nature of the underlying dispute that they seek to have judicially resolved by being joined. In taking that approach I should not be understood as intending to suggest that I accept that each of the joinder applicants are in fact native title holders who are members of the Darlot claim group. 21 The Darlot applicant does not accept that the nominated ancestors relied upon by the joinder applicants should be included in the Darlot claim group description (and thus any native title determination to be made in the Darlot proceeding). Those nominated ancestors (nominated ancestors) are: Yunkututu (Kitty Hill); Snowy Barnes; Maraputa; Old Shannon; and Rangka Rangka. 22 In the case of Snowy Barnes, his inclusion as a named apical ancestor was first asserted by Patricia Lewis, one of the joinder applicants. The Darlot claim group determined that there was not a sufficient basis for the inclusion of Patricia Lewis in the claim group through her asserted apical Snowy Barnes. That appears to have occurred at the initial Darlot claim authorisation meeting held at Leonora on 21 February 2020. 23 The evidence of the Darlot applicant was that at a meeting of the Darlot claim group in November 2020, the claim group considered each of the nominated ancestors other than Old Shannon and Kitty Hill, authorised the Darlot claim group description that is currently applicable and thus rejected the inclusion of each of the nominated ancestors. Another joinder applicant, Vanessa Thomas, asserted her interests in the Darlot claim area at that meeting. Following the making of the joinder applications on 22 October 2021, the Darlot claim group again considered the claim group description in light of the joinder applications at a meeting held on 13 December 2021. Over 120 Darlot claimants were present and a resolution passed by consensus that stated that the Darlot claim group did not support the inclusion of the nominated ancestors or their descendants on the basis of descent in the claim group description. The resolution went on to say that the nominated ancestors "are not recognised as Darlot persons or holders of rights and interests in accordance with traditional laws and customs in the Darlot claim area". 24 It is also relevant to note that the fact that additional persons were asserting rights and interests in the Darlot claim area was flagged to the Darlot applicant in April 2021 and that in October 2021 there was Court facilitated mediation between some of the proposed joinder applicants and the Darlot applicant which attempted to resolve their dispute. I would infer that the joinder applications were made when mediation failed to resolve that dispute. 25 It is clear that there is a dispute between the Darlot applicant and the joinder applicants as to whether the nominated ancestors should be included in the Darlot claim group description as well as whether the joinder applicants and other descendants of those nominated ancestors are native title holders by virtue of their descendancy from those ancestors. It is also clear that the position taken by the Darlot applicant is consistent with that of the Darlot claim group as expressed through resolutions made by that group. 26 The position in relation to the assertions made by Kado and Talbot Muir and Alwyn Anderson that they hold native title rights in parts of the Darlot claim area by virtue of holding religious, sacred or ritual authority does not seem to be in contest. The submissions made by the Darlot applicant is that those persons have established a prima facie interest in the Darlot claim area but that those interests are already accommodated in the claim group description under the religious, sacred or ritual authority limb. The nature of the dispute between the Darlot applicant and those persons seems to be limited to whether or not they should be expressly identified in the claim group description. 27 The joinder applicants effectively characterise the dispute as a membership dispute. They contend that it is appropriate that in making a determination of native title, the Court should resolve that membership dispute by listing in the group description of native title holders in any determination made the nominated ancestors as ancestors who are recognised as having (or having had) native title rights and interests in the Darlot claim area by virtue of their long association with that area as well as individually listing Kado and Talbot Muir and Alwyn Anderson as recognised native title holders by virtue of their holding of religious, sacred and ritual authority. 28 The joinder applicants and NTSG say that it would not be appropriate to leave the membership dispute to be resolved post-determination under the membership rules of the prospective prescribed body corporate (prospective PBC) appointed by the Court under s 56 of the Act to hold the native title on trust for the native title common law holders. They fear that membership of the prospective PBC would be denied to them on the basis that they are not native title common law holders given that the prospective PBC would likely be controlled by the same persons in the Darlot claim group who have already refused to recognise their native title and their claim to be members of the Darlot claim group. 29 The joinder applicants rely on their assertion that the membership dispute is more appropriately resolved as part of the making of a native title determination as the basis for their contention that I should be satisfied that joinder is in the interests of justice. NTSG echoed that contention. 30 The joinder applicants did not directly address the first two elements of s 84(5) as to why the Court should be satisfied that their interests may be affected by a determination. Part of their written submission directed to the issue of '[t]he interests of justice' stated that the making of a native title determination that did not recognise themselves or their nominated ancestors would "affect their interests in a negative manner, by imposing a condition precedent on their recognition as native title holders". Whilst the "condition precedent" was not expressly specified, the suggestion was that the condition precedent to the recognition or exercise of the native title rights of the joinder applicants (should what they seek be denied to them) was the unlikely acceptance of their status as native title holders by the prospective PBC. 31 Whilst their stated position on this issue is somewhat unclear, I will proceed on the basis that: (a) the "interests" that the joinder applicants contend may be affected are the native title rights and interests they assert they hold in the Darlot claim area; and (b) the joinder applicants contend that those interests "may be affected by a determination in the proceeding" because, if the determination is not made in the terms they seek, the recognition and exercise of those interests will be compromised in circumstances where the prospective PBC is unlikely to recognise those interests. 32 It is convenient that I first consider whether I am satisfied that the interests of each joinder applicant may be affected by a determination in the proceedings. The onus of satisfying the Court of that and each of the elements of s 84(5) naturally falls upon the applicant for joinder. 33 I am satisfied that each of the joinder applicants has identified an interest of a kind contemplated by s 84(5), namely, a native title interest in the lands and waters of the Darlot claim area. Each has demonstrated that such an interest is arguably held by the person concerned. It is sufficient for the purposes of s 84(5) that I be satisfied on an arguable or prima facie basis that such an interest is held. 34 A native title interest in lands and waters is clearly an interest within the meaning of s 84(5) of the Act. 35 In Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 (Black CJ, Lockhart and Merkel JJ), the Full Court addressed a different but relevantly indistinguishable provision of the Act to s 84(5). The Court held that the words "interests may be affected by a determination" encompass but were not restricted to an interest in lands and waters: see at 6 (Black CJ), 19 (Lockhart J) and 40-41 (Merkel J). The Full Court considered that the words "interests" and "affected" were not to be narrowly construed, with Black CJ observing that the emphasis the Act places upon mediation and consensus and the nature of the rights given to a party (including the capacity to effectively veto a consent determination) tell against taking the widest view of the scope of the words "interests" and "affected" (see at 5-7). 36 The Chief Justice considered that "interests" did not include an indirect or remote interest or an interest lacking substance. His Honour stated that "the interests must be capable of clear definition and, equally importantly, that they are of such a character that they may be affected in a demonstrable way by a determination in relation to the application" (at 7). Similarly, Merkel J stated (at 42): In my view when regard is had to the subject matter, scope and purpose of the relevant provisions of the Act standing as a party under the Act is restricted to persons whose interests: • may be genuinely, demonstrably and not indirectly affected by a determination of native title • are not remote or so insubstantial that it will be mere speculation as to whether and, if so, how they may be actually affected by the determination • can be defined with reasonable certainty and is in each case readily ascertainable as a matter of fact and law. 37 In TR (Deceased) on behalf of the Kariyarra – Pipingarra People v State of Western Australia [2016] FCA 1158, North ACJ at [35] cited Byron as authority for the proposition that "[t]he interest must be capable of clear definition, not be indirect or lacking in substance. It must be of such a nature that it may be affected in a demonstrable way by [a] determination of native title". 38 His Honour went on to say at [36] that concerns about intramural matters do not ground an interest of the type that justifies a person being a respondent. Although for reasons I will later address it seems to me that the concerns held by the joinder applicants are also intramural, I do not take the view that they have failed to identify a relevant interest. 39 However, I am not satisfied that the joinder applicants' native title interests "may be affected by a determination in the proceedings" (emphasis added). The phrase "be affected by" in the context of s 84(5) as a whole requires satisfaction that a determination in the proceeding may adversely affect the particular interests of the joinder applicants in question. Whilst the word "may" only requires that the Court be satisfied that the adverse affectation be a real possibility, it is the making of a determination and no other cause which the Court needs to be satisfied may likely bring about the adverse effect. 40 The adverse effect relied upon by the joinder applicants is an impediment to the recognition or exercise of their native title interests. The cause of that adverse effect will not be a determination which in identifying the native title holders reflects the Darlot claim group description because, on their own case, the joinder applicants are each encompassed by that description. Nor is it the joinder applicants' case that the Darlot claim group description is so ambiguous and prone to misapplication that it will inherently affect their interests. What the joinder applicants fear is a misapplication by the prospective PBC, hostile to their interests, of the membership criteria specified in a determination which reflects the Darlot claim group description. The joinder applicants have not identified that their interests may be directly affected by a determination which may be made in the proceeding. At best their submission points to an indirect effect which may be brought about not by the determination itself, but by the misapplication of it. 41 The requirement of directness that emerges from the judgments of the Full Court in Byron primarily deals with the nature of the interest that must be demonstrated. Nevertheless, the approach taken on that question by the Full Court supports a conclusion that the nature of the causative link between the interest and the adverse effect should, ordinarily, also be direct. As Merkel J observed (at 42), the interest "may be genuinely, demonstrably and not indirectly affected by a determination of native title". That is not to say that there will not be cases where a slender causal relationship will suffice. The facts of each case must be considered on their own terms. But, in my view, this is not a case in which a sufficient causal link is established. 42 My conclusion on that issue is not out of step with any authority to which my attention has been drawn or any authority that my own research has revealed. It broadly accords with the conclusion reached by Mortimer J in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 1) [2021] FCA 1463 where her Honour dismissed three applications for joinder including an application made by Ms Lucy Hobson. Her Honour considered that Ms Hobson lacked a sufficient interest to be joined as a respondent in circumstances where all that Ms Hobson sought to achieve as a party was to have a more expansive description given of her ancestor by linking that ancestor to a more recent ancestor (her grandfather) in the determination to be made (see at [51] and [63]). 43 I turn then to consider the third element of s 84(5) and whether it is in the interests of justice for the joinder applicants to be joined as respondents. The considerations here raised overlap with those relevant to the exercise of my discretion and may therefore be considered in tandem. 44 There are many considerations raised. Some favour joinder, but most do not. A balance is to be struck and in my view the interests of justice provide a further reason why the applications for joinder should not succeed. 45 Striking the right balance to accommodate the interests of justice will often not be an easy task, including because so much depends upon the particular circumstances at hand. Unsurprisingly given the fact dependent nature of the exercise, no authority to which I have been referred or which my own research has discovered is directly on point. Nevertheless, some general assistance is provided by the cases. 46 One theme in the authorities which is of significance is that a dissentient member of a native title claim group will only be permitted to become a respondent to a native title determination in rare or exceptional circumstances: see Starkey v South Australia (2011) 193 FCR 450 at [61]-[63] (Mansfield J); Far West Coast Native Title Claim v South Australia (No 2) (2012) 204 FCR 542 at [38]-[39] (Mansfield J); Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [58] (Mansfield J); Jacob v State of Western Australia [2014] FCA 1106 at [4] (McKerracher J); Harkin on behalf of the Nanatadjarra People v State of Western Australia [2020] FCA 1015 at [10(h)] (Griffiths J). 47 There are a number of reasons why the joinder as a respondent of a person who is also represented by the applicant should be an exception to the rule. The following list is by no means intended to be exhaustive. First, it is generally incongruent with the very idea of adversarial litigation that the same litigant should be permitted to participate on both sides of the ledger. As Barker J said in Drury v Western Australia (2016) 244 FCR 294 at [24], an applicant for joinder "cannot reasonably expect to have one foot in the claimant camp and the other foot outside it, in order to cover all possible eventualities". That, of course, is to be contrasted with a situation where a person is not represented at all and joinder as a respondent is appropriate to accommodate the participation in the one proceeding of all parties whose interests may be affected by a determination: see Gamogab v Akiba (2007) 159 FCR 578 at [64] (Gyles J, with whom Sundberg J agreed). I accept that the in rem nature of a determination supports joinder where a person's interests are not already represented by the applicant, a matter to which I next turn. 48 Second, the Act has established a scheme for the representation of claim group members in a native title determination proceeding. The existence of that scheme is generally inconsistent with the separate participation of a group member as an individual party. As Mansfield J recognised in Starkey at [55], s 251B of the Act requires authorisation in accordance with traditional law and custom or according to a decision-making process agreed to by the claim group. Section 251B does not require unanimity among members of the claim as part of that process. To the contrary it contemplates that in many cases there may be dissent among members of the claim group. Those who disagree will nevertheless be bound by the decision of the claim group as a whole in accordance with the Act. If dissatisfied members of the claim were routinely afforded the elevated status of a respondent to a proceeding in order to agitate interests adverse to the will of the claim group as a whole, including by delaying the proceeding or withholding their consent to a negotiated outcome, it would undermine the representative function of authorisation under the Act: see generally Starkey at [55]-[56]. 49 Third, a dissentient member will often be in dispute with the non-dissentient majority represented by the applicant over a matter which is internal or intramural to the claim group and best resolved, at least at first instance, within the group rather than by the Court: see Starkey at [55] and [63] (Mansfield J); Banjima People v State of Western Australia (No 2) [2013] FCA 868 at [528] (Barker J); Far West Coast Native Title Claim v State of South Australia (No 6) [2013] FCA 1270 at [80] (Mansfield J); TR (Deceased) at [36] (North ACJ). 50 That is so for a range of reasons including because an internal resolution is likely to provide a dispute resolution process in tune with traditional laws and customs and for that reason alone more likely to provide a lasting resolution. Curial proceedings, on the other hand, tend to impose coercive rather than cooperative processes, are prone to accentuate differences rather than encourage compromise and provide 'winner-takes-all' outcomes which tend to make lasting resolutions elusive in the context of the ongoing group dynamic in which internal disputes arise. 51 Disputes about whether a particular person or persons are members of a native title holding group generally fall within the intramural category. It is necessary in this regard to say something of the role required by the Act of the Court in making a native title determination. The Court's function requires it to prescribe the criteria by which membership of the native title holding group is attained. There is, however, no requirement for the Court to apply the criteria for membership determined upon to rule upon whether or not a particular person or persons fall within it. 52 As the Full Court stated in Moses v Western Australia (2007) 160 FCR 148 at [370] (Moore, North and Mansfield JJ), in the case of group claims the requirement made by s 225(a) that the persons holding group rights be specified in the determination may well be satisfied simply by specifying the name of the group; there is no automatic or necessary requirement to "set out in detail how the group membership is constituted or the criteria by which membership is attained". However, whether a group of persons is "sufficiently described" by its group name will depend on the circumstances and "where the constitution of the membership of the group is unclear, the determination will need to clarify by supplying some definition of the way membership of the group is attained so that s 225(a) can be satisfied": at [370]. 53 In Banjima (No 2) at [528]-[529], Barker J distinguished between the resolution of disputes concerned with intramural or internal relations and the need to resolve, in making a native title determination, questions concerning the criteria for membership. His Honour considered that the Court was not called upon to resolve the former and regarded those disputes as "matters that should be left to the prescribed body corporate to determine" at [528]. In contrast, as his Honour said at [529], in any given case there may be a question concerning the broad description of the people or the group and the criteria for its membership and that in such a case "it would ordinarily appear appropriate, if not necessary, for the Court to deal with such a question should it arise". 54 The criteria for membership of a native title holding group is not an intramural question for that group to determine post-determination. That is because the criteria for membership of the native title holding group is an element in proving native title and must be resolved by the Court in making a native title determination. So much is apparent from the reasoning of the Full Court in State of Western Australia v Graham on behalf of the Ngadju People [2013] FCAFC 143 at [82]-[93] (Jagot, Barker and Perry JJ) where it was held that whether or not a particular apical ancestor held native title at sovereignty was not an intramural question to be left for later determination by the claim group but a matter that had to be resolved in the determination of native title. Resolving a membership issue such as whether a particular apical ancestor was a member of the relevant native title holding group at sovereignty will often be a necessary aspect of the Court defining the criteria by which membership of the current native title holding group is attained. 55 Contrary to the submissions made by the joinder applicants and by NTSG, it is that kind of membership dispute that the Full Court had in mind in Clifton when it said at [37] that the resolution of a dispute as to the true membership of a native title claim group was an inherent aspect of the determination of an application made under s 13(1) of the Act. That is also the kind of membership dispute (ie a dispute about the criteria for membership) that the applicant for joinder in Jacob relied upon and in respect of which McKerracher J held joinder to be appropriate. The same is true of Bell on behalf of the Wakka Wakka People #4 v State of Queensland [2020] FCA 695 (Rangiah J) where ambiguity in the description of the membership criteria was held to justify joinder: see at [39]. 56 Neither [37] of Clifton nor Jacob stands for the proposition that an inherent part of the Court's task in making a native title determination is to resolve whether or not particular individuals are encompassed by the membership criteria of the native title holding group determined by the Court to be appropriate. If that were so, the Court's task would never end because group membership is fluid and post-determination disputes about it will arise from time to time. 57 I do not mean to say that on the way to making a native title determination the Court cannot make a finding as to whether particular persons are native title holders where pragmatism and the interests of justice encourage that course. Fulton v Northern Territory of Australia [2016] FCA 1236 (White J) is an example of a dispute as to the membership of a claim group being determined by way of a separate question. I do, however, mean to say that, on the authorities as I understand them, a preference has been expressed for disputes of that kind to be dealt with post-determination and intramurally in order to reflect a policy preference inferred from the Act. 58 The implications of that analysis for these joinder applications turns then, in large part, on what kind of membership dispute they are really seeking to address by their joinder. Is it a dispute about the appropriate membership criteria of the native title holding group or is it merely various disputes about individual membership of that group? I will return to that issue shortly. 59 A second theme redolent in the authorities is that prejudice and in particular prejudice brought about by the unexplained delay of the joinder applicants making their application may tell against joinder. In circumstances where significant prejudice and unexplained delay are demonstrated, a compelling justification for the joinder sought will ordinarily be required: Wakka Wakka People #2 v State of Queensland [2005] FCA 1578 at [7] (Kiefel J); Jacob at [51] (McKerracher J); TR (Deceased) at [30], [48] and [50] (North ACJ); Harkin at [10(i)] (Griffiths J); Ross at [25]-[26] (Mortimer J). 60 I turn then to apply those considerations to the facts at hand. 61 On the case as presented by the joinder applicants, they are dissentient members of the Darlot claim group in dispute with the Darlot claim group about whether or not they are members of that group. They seek to be joined in order to facilitate the curial resolution of that dispute. Their applications for joinder are premised upon the expectation that if the Court makes findings reflected in a native title determination that: (a) their nominated ancestors were native title holders because they were recognised under traditional law and custom as having rights in some or all of the Darlot claim area through long association with that area; and (b) Kado and Talbot Muir and Alwyn Anderson are native title holders because they are recognised under traditional law and custom as having rights in some or all of the claim area through their holding of religious, sacred or ritual authority; then the prospective PBC will be required to recognise them as common law holders of native title and admit them into membership of the PBC so as to effectuate the exercise and enjoyment of their native title rights. 62 The joinder applicants are not to be criticised for asserting the rights they contend they have. They are well entitled to do so. The key question is whether it is in the interests of justice for them to be permitted to agitate their claims in this proceeding or whether, instead, they should be left to assert their claims, at least at first instance, before the prospective PBC. 63 In my view, to a very substantial extent, that question turns on the kind of membership dispute the joinder applicants are involved in. On their own case, that dispute seems to me to be a dispute about the proper application of the membership criteria for the native title holding group which the Darlot applicant seeks to have included in a native title determination. Although the joinder applicants seek to change the form of the membership criteria being pursued by the Darlot applicant by having the findings referred to above at [61] reflected in it, they do not seek any change of substance. Their case is that the membership criteria now pursued by the Darlot claim group already encompasses them. They seek that the application of the membership criteria, in so far as it relates to them, be expressly recorded in the determination to be made. On their own case, they are not in a membership criteria dispute. On their own case, they are in a dispute as to the application of the membership criteria to their circumstances. That, as I have tried to explain, is a very different dispute to a dispute about the substance of a membership criteria such as who were the native title holders at sovereignty. The latter cannot be dealt with intramurally and absent a compelling justification the former should be dealt with intramurally. 64 No compelling justification has been demonstrated by the joinder applicants as to why the disputes in question should not be dealt with intramurally. There is nothing inherently flawed about the long association limb or the religious, sacred or ritual authority limb of the membership criteria being pursued by the Darlot applicant. They each provide a definition by which a person's membership under that criterion is attained. If there is ambiguity in the definition given, it would not be resolved by including the names of some of the persons who have attained membership through that criterion. That is especially so in relation to a criterion which seeks to define a class which is fluid and evolving. There is no comparative unfairness by reference to the way in which the descent limb of the Darlot claim group description is dealt with by the supplementation provided in paragraph (b). The descent limb is based on a criterion which necessarily requires that the apical ancestors at sovereignty be identified because, without that, the criterion would lack any definition. The apparently non-exhaustive structure of the descent limb may well be a problem but, if so, it is not a problem which is of present relevance. 65 I appreciate that there may be some inconsistency in the way the birth limb and the long-standing association limb are dealt with. The specification provided in paragraph (b) may well include a person or persons who have attained membership through the birth limb. That is not clear on the evidence before me. However, even if there be some inconsistency, it would be of little moment for the issues here being considered. So long as the group description provides a sufficiently clear criterion or definition of the way or ways in which membership of the group is attained, its inclusion of the names of some persons who have attained membership (either past or present) is superfluous to that which is essential to the making of a native title determination. 66 The consequence for the joinder applicants of not being joined does not provide a compelling justification for their joinder. On their own case, their native title interests will not be directly affected by the making of a determination for the reasons I have given at [35]-[42] above. If the joinder applicants are encompassed by the native title holding group description being pursued by the applicant but post-determination the prospective PBC misapplies that description to deny their membership of the prospective PBC, they are not without a remedy. 67 First, it ought not to be assumed that the prospective PBC will misapply the native title holding group membership criteria provided by a determination made by the Court. Second, an internal resolution of an intramural dispute has the advantages earlier identified and, furthermore, I would infer from the evidence before me relating to the extent of anthropological research done to date that the prospective PBC will have an opportunity to consider more comprehensive anthropological material than that which was previously available to the Darlot claim group when it made the decisions it made about the membership of the joinder applicants. 68 Third, unlike the context in which the Darlot claim group previously determined its position on membership, the decisions about membership that may need to be made by the prospective PBC would be made in the context of the legal obligation imposed on a prescribed body corporate by s 144-10(3A) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). 69 The prospective PBC will be a 'registered native title body corporate' and an 'Aboriginal and Torres Strait Islander Corporation' within the meaning of the CATSI Act. Section 141-25(2) of that Act requires that the constitution of a registered native title body corporate "must include eligibility requirements for membership that provide for all the common law holders of native title to be represented, directly or indirectly". Section 144-10(3A) provides that directors of a registered native title body corporate must accept a membership application if the application complies with paragraphs (2)(a) and (b) of s 144-10 which provide for the following conditions: (a) the applicant applies for membership in the required manner; and (b) the applicant meets the eligibility for membership requirements of the corporation. 70 The provisions to which I have just referred were introduced by the Native Title Legislation Amendment Act 2021 (Cth). The Revised Explanatory Memorandum to that Act relevantly explains that the amendments made to s 144-10 of the CATSI Act were intended to remove the discretion of directors of registered native title body corporates to refuse to accept a membership application. The Revised Explanatory Memorandum noted that there have been cases of directors using that discretion to arbitrarily refuse to accept a membership application in circumstances where a person was otherwise eligible for membership. The purpose of the amendments was to remove that discretion: see Revised Explanatory Memorandum at [313]-[314]. 71 Section 586-5(1) of the CATSI Act confers jurisdiction on this Court in respect to civil matters arising under the "Aboriginal and Torres Strait Islander Corporations Legislation" which the definition provision in s 700‑1 defines to include the CATSI Act. Exclusive jurisdiction is provided to this Court in respect of a civil matter arising under the CATSI Act where those proceedings relate to a registered native title body corporate (see s 581-30). Section 576-25(2) of the CATSI Act relevantly empowers this Court to grant an injunction including at the instance of any person whose interests have been, are or would be affected by the refusal or failure of a person to do an act or thing that the person is required by the CATSI Act to do. The provision empowers the Court to grant an injunction on such terms as the Court thinks appropriate requiring the person who has refused or failed to do the act in question to do that act or thing. 72 Beyond any remedy provided for by the CATSI Act, as Mortimer J observed in Dhu v Karlka Nyiyaparli Aboriginal Corporation RNTBC (No 2) [2021] FCA 1496 at [274]-[281], this Court has jurisdiction to resolve disputes about membership of native title holding groups under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) because there would be a matter arising under the Act about the application of a native title determination made by this Court under that Act. I note in passing, however, that s 586-1(2) of the CATSI Act provides that the Division in which jurisdiction is conferred on this Court by that Act operates to the exclusion of s 39B of the Judiciary Act. 73 It is apparent then that the joinder applicants will not be left without a remedy should their contention that they are common law holders of native title encompassed by a native title determination which reflects the Darlot claim group description be erroneously rejected by the directors of the prospective PBC. 74 NTSG contended that the interests of the joinder applicants would be prejudiced by a post-determination curial resolution because, in the period between the making of a determination and the curial resolution of the membership disputes, the joinder applicants would be excluded from participating in the activities and business conducted by the prospective PBC. I accept that that kind of prejudice is a possibility but I am not able to give that possibility much weight in circumstances where the contention made was supported by no more than speculation. 75 In contrast, I am persuaded that the prejudice that would be suffered by the Darlot applicant and the Darlot claim group as a whole if joinder was permitted is likely to be real and extensive. That would be so because the joinder would likely lead to the need for an extensive contested hearing which would delay the making of a native title determination by at least 12 months and possibly far longer. Substantial resources would also be required in circumstances where the Court has been informed by the Darlot applicant that the progression of the Darlot claim has been consistently hampered by funding pressures. 76 I accept the position of the Darlot applicant that joinder would jeopardise the making of a consent determination that is otherwise on track for consideration by the Court in the very near future. The Darlot applicant submitted, and it was confirmed by NTSG, that in October 2021 a draft minute of a proposed consent determination of native title for the Darlot claim was agreed to by all respondent parties to the claim, save for NTSG. Further, on 13 December 2021 the Darlot claim group nominated a prescribed body corporate to hold and manage the determined native title. An updated timetable for the resolution of the proceeding provided to the Court on 13 August 2021 suggested that the claim was ready to be determined by way of a consent determination on a date to be fixed after 17 December 2021. 77 Whilst to date NTSG has withheld its consent to a consent determination, I infer from the evidence before me and the position here taken by NTSG that its withholding of consent is based on its position that the claims of the joinder applicants should be dealt with prior to the making of any determination. If that is not to occur, as I have decided it will not, I have no reason to believe that there is some other basis for NTSG to withhold its consent. No such basis was put forward by NTSG and, if there is another basis, I have no reason to presume that such a basis would successfully resist any application that may be made to have NTSG removed as a respondent in circumstances where its opposition was the sole impediment to the resolution of the proceeding by the making of a consent determination. Further, I note that the only other impediment to the Court considering a consent determination of which I am aware – an overlap with the Jardu Mar claim (WAD 4 of 2021) – has now been removed by the dismissal of that application in Dimer on behalf of the Jardu Mar People v State of Western Australia [2022] FCA 64. 78 The detriment to native title holders of the ongoing dispossession of their lands and waters need not be here recounted. The possibility of that dispossession being extended even if only for a comparably short period in circumstances where the imminent recognition of native title was justifiably anticipated is potentially devastating. I accept the evidence to that effect given by a number of the Darlot claimants including their genuine fears that by reason of further delay several of the claimants may pass away before any native title determination is made. All of that prejudice is irreparable. 79 I have also taken into account and given some, but not substantial weight, to the delay of the joinder applicants in making their applications. I accept that some of the delay has been somewhat explained or, in any event, is somewhat explicable. Nevertheless, if the joinder applicants had lodged their applications much earlier, as they could have, at least the whole of 2020 would have been available to resolve the membership disputes (perhaps by more extensive mediation based upon more extensive anthropological research), without delaying the Court's consideration of a proposed consent determination. 80 I have not been persuaded by the joinder applicants that I should be satisfied that their interests may be affected by a determination in the proceedings and that it is in the interests of justice to join them as respondents. Accordingly, the joinder applications will be dismissed. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromberg. Associate: Dated: 16 February 2022