Overview of the party and joinder provisions

11.4       A determination of native title rights and interests by the Federal Court takes effect in rem.^[1] This term means that the determination of native title rights and interests is enforceable against ‘the whole world’. A determination therefore results in legal finality.^[2] Participation as a respondent in native title proceedings is a means by which a person may represent their interest in a claim area before a determination is reached.

11.5       Section 84 describes who is or may become a party to native title proceedings under the Native Title Act,and how parties may withdraw or be dismissed from proceedings. The provisions apply in relation to native title determination applications (including non-claimant applications), revised native title determination applications and compensation applications.^[3] The term ‘joinder’ is often used in relation to native title procedure to describe both the s 84(3) method of becoming a party and s 84(5) applications to the Court to be joined as a party. Discussions about joinder under s 84(5), whether judicial or otherwise, may consider other subsections of s 84.^[4]

11.6       Parties to a native title proceeding include the applicant^[5] and the relevant state or territory minister.^[6] Various third party respondents may also become parties to proceedings under s 84(3) by notifying the Federal Court within a specified time that they wish to participate, or under s 84(5) by applying to be joined to proceedings.^[7] Broadly speaking, s 84(3) identifies that certain types of interests will be affected by a native title determination, and provides a mechanism for a person with such interests to become party to proceedings upon compliance with notification procedures. The joinder of a party under s 84(5), however, is subject to the discretion of the Court. These provisions are discussed in detail below.

11.7       Section 225 of the Act provides that a determination must address the interests of third parties, including a determination of:

(c)     the nature and extent of any other interests in relation to the determination area; and

(d)     the relationship between the rights and interests in paragraphs (b) [ie the native title rights and interests] and (c) (taking into account the effect of this Act).

11.8       Party status in native title proceedings brings with it the right to participate in negotiations that may lead to a consent determination under either s 87 or s 87A of the Act. Under s 87, a consent determination requires the agreement of all parties to proceedings. As a result of this, ‘a person who is a party can veto [a consent determination] and … can continue to do so at every stage so that only a judicial determination can resolve the claim’.^[8] Section 87A provides for a consent determination over part of the claim area. This type of consent determination does not require the agreement of all parties, but only the agreement of certain defined parties.^[9] If a person has an interest sufficient to become a party under s 84(3), that person’s agreement will typically be required for a consent determination under s 87A. However, a consent determination may be possible under s 87A without the agreement of persons who join under s 84(5).^[10]

11.9       The party and joinder provisions may need to accommodate Aboriginal and Torres Strait Islander respondents, for example, where there are overlapping claim groups or disaffected members of the claim group. For these respondents, access to justice may involve considerations distinct from, and potentially in conflict with, the considerations of equity for the primary claim group as represented by the applicant.

11.10   The importance of respondent interests being adequately represented in native title proceedings must be balanced against the impact that a large number of respondents may have on the resolution of native title proceedings, and in turn on the members of the claim group. These burdens may be administrative—as the number of parties increases, so too, does the number of persons who must, for example, be served with documents. The interests of claim groups must also be considered, given the context of the beneficial purposes of the Native Title Act.

11.11   Section 37M of the Federal Court of Australia Act 1976 (Cth), which describes the over-arching purpose of civil practice and procedure provisions as the just resolution of disputes according to law ‘as quickly, inexpensively and efficiently as possible’, may also have decisive weight in a particular joinder case.^[11]

Participation by notification under s 84(3)

11.12   Most persons, other than the applicant and the Crown (ie, the relevant state, territory or Commonwealth government), become parties to native title proceedings under s 84(3). Section 84(3) provides that certain persons are a party to native title proceedings if that person notifies the Federal Court in writing to that effect within the prescribed time period. These persons include:

• persons who must be notified of a claim by the Registrar under s 66(3)(a)(i)–(vi), such as registered native title claimants, native title bodies corporate, persons with a registered proprietary interest, the Commonwealth Minister, and local government bodies—s 84(3)(a)(i);

• persons who claim to hold native title in relation to land or waters in the area covered by the application—s 84(3)(a)(ii); and

• persons whose interests in relation to land or waters may be affected by a determination in the proceedings—s 84(3)(a)(iii).

11.13   For the purposes of s 84(3)(a)(iii), the phrase ‘interests in relation to land or waters’ is to be read in conjunction with the s 253 definition of ‘interests, in relation to land or waters’.^[12] That definition provides:

interest, in relation to land or waters, means:

(a)    a legal or equitable estate or interest in the land or waters; or

(b)     any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

         (i)      the land or waters; or

         (ii)     an estate or interest in the land or waters; or

(c)     a restriction on the use of the land or waters, whether or not annexed to other land or waters.

11.14   Proceedings cannot substantively commence until the notification process has concluded and the parties are known.

11.15   Section 84(3) expresses a legislative assumption that the interests of the specified classes of parties will be affected by a determination of native title. The provisions are relatively wide in terms of the nature of an interest affected.

11.16   A consent determination under s 87A requires the agreement of specified categories of persons. These categories include many of the categories of person who may become a party under s 84(3).^[13] A consent determination under s 87A will therefore require the agreement of most persons who are able to become a party to proceedings under s 84(3).

Joinder of parties under s 84(5)

11.17   If a person does not become a party to proceedings under s 84(3),^[14] the person may apply to be joined to proceedings under s 84(5).^[15] Section 84(5) 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.^[16]

11.18   If the threshold questions—whether there is an interest and whether that interest may be affected by a determination—have been resolved in favour of the party making the application, the Court then considers whether it should exercise its discretion to join the person as a party.^[17] Legal action may be well advanced when a person seeks to become a party under s 84(5) (‘late joinder’).

11.19   In exercising its discretion to join a person as a party to proceedings under s 84(5), the Court must first be satisfied that the person’s interests may be affected by a determination. Case law suggests that an ‘interest’, for the purposes of s 84(5), is not limited to a legal or equitable interest, and that it may include some commercial, recreational or other interests.

11.20   The types of interest necessary to be joined to proceedings were considered in Byron Environment Centre Inc v Arakwal People (‘Byron’).^[18] In that case, the Full Court held that a Deputy President of the National Native Title Tribunal had erred in refusing the Byron Environment Centre party status because it could not demonstrate that it fell within the definition of ‘interests in relation to land or waters’ in s 253. Unlike s 84(3)(a)(iii), s 84(5) is not limited to interests in relation to land and waters as defined in s 253.^[19]

11.21   The interests allowing joinder under s 84(5) may include a ‘special, well-established non-proprietary connection with land or waters’, but must not be ‘indirect, remote or lacking substance’.^[20] The interests must be ‘capable of clear definition and … be affected in a demonstrable way by a determination in relation to the application’.^[21] The interests ‘should be greater than that of a member of the general public’,^[22] although there

is no reason why persons who have had and continue to have regular and lawful use or enjoyment of areas of land or waters covered by a claim under the Act should not be afforded the opportunity of being heard as a party before losing their ‘right’ or having it otherwise affected by a native title determination.^[23]

11.22   An interest in using the claim area for bushwalking, hunting or camping, for example, would not appear to be sufficient for joinder under s 84(5),^[24] but ongoing use over many years may be, particularly where the native title claim is for exclusive possession.^[25] A sufficient interest may arise where the person applying for joinder has a number of well advanced applications for mining licences,^[26] although a single application for a licence may be insufficient.^[27] The way in which a person’s interest may be affected is also a relevant consideration.^[28] In Byron, Black CJ considered that the interests of a corporation might be affected if its activities might be ‘curtailed or otherwise significantly affected by the determination’.^[29] In the same case, Merkel J considered that a determination of exclusive native title might affect regular and lawful use and enjoyment of land, but also that those rights are subject to statute, and drew attention to the need to show ‘how they may be actually affected by the determination’.^[30]

11.23   Where a person seeking to be joined under s 84(5) has an interest that may be affected merely because the person has a public right of access over, or use of, an area covered by the application, s 84(5A) provides a discretionary power for the Federal Court to limit the number of parties with the same interest.^[31] The Court may ‘make appropriate orders to ensure that the person’s interests are properly represented in the proceedings’,^[32] but ‘need not allow more than one such person to become a party to the proceedings in relation to each area covered by such a public right of access or use’.^[33]

11.24   Given the range of interests that may be sufficient for joinder under s 84(5) but which are not strictly ‘interests in relation to land or waters’, a consent determination under s 87A may not require the agreement of all persons who join under s 84(5).

Dismissal of parties under ss 84(8) and 84(9)

11.25   Section 84(8) allows the Federal Court to dismiss a party. Under s 84(9), the Court is to consider dismissing a party if that party’s interests in the claim area arise merely because of a public right of access and if the person’s interests are adequately represented by another party, or if the person never had (or no longer has) an interest that may be affected by a determination in the proceedings. A party (other than the applicant) may also withdraw from proceedings by giving written notice before the first hearing,^[34] or at any time with the leave of the Court.^[35]

11.26   The power to dismiss a party has been used, for example, to remove a party from proceedings who refused a consent determination, apparently without basis.^[36]