Evans on behalf of the Yarla-Gu Bunna Nangatjara People v State of Western Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 10 November 2021
• Neutral Citation: [2021] FCA 1382
• Court: Federal Court
• Date: 10 November 2021

Federal Court of Australia

Evans on behalf of the Yarla-Gu Bunna Nangatjara People v State of Western Australia [2021] FCA 1382

File number(s):	WAD 213 of 2021
Judgment of:	GRIFFITHS J
Date of judgment:	10 November 2021
Catchwords:	NATIVE TITLE – interlocutory application seeking joinder as respondent and summary dismissal or strike out of a s 61 native title determination application – where joinder warranted given interlocutory applicant’s overlapping native title claim – whether overlapping native title claim should be struck out under s 84C(1) of the Native Title Act 1993 (Cth) (NT Act) for want of authorisation – where s 61 applicant’s evidence on authorisation inconsistent concerning requirements of s 251 of NT Act – no reasonable prospects of establishing native title claim was properly authorised – whether native title claim should be summarily dismissed for abuse of process – where consent determination imminent in overlapping claim save for a limited trial on s 47B issues – where s 61 applicant involved in previous unsuccessful native title claims and interlocutory applications involving the overlapping claim – where State satisfied overlapping claim is capable of being supported by connection evidence and considers latest native title claim to be unmeritorious – native title claim filed at late stage to disrupt finalisation of overlapping claim – native title claim summarily dismissed and/or struck out
Legislation:	Federal Court of Australia Act 1976 (Cth) s 31A(2) Native Title Act 1993 (Cth) ss 47B, 61, 62, 66B, 84C, 84D, 203BE(2)(a), 251B
Cases cited:	Bates on behalf of the Malyangapa Part B Claim Group v Attorney-General of New South Wales [2021] FCA 1198 Clarrie Smith v Western Australia [2000] FCA 1249; 104 FCR 49 Dieri People v State of South Australia [2003] FCA 187; 127 FCR 364 Evans v Native Title Registrar [2004] FCA 1070 Forrest on behalf of the Nangaanya-ku Native Title Claim Group v State of Western Australia [2021] FCA 467 Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177; 273 FCR 350 Harkin on behalf of the Nangatjarra People v State of Western Australia (No 2) [2021] FCA 3 Lawson on behalf of the Badimaya Barna Guda People v State of Western Australia [2020] FCA 104 TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2016] FCA 553
Division:	General Division
Registry:	New South Wales
National Practice Area:	Native Title
Number of paragraphs:	86
Date of hearing:	8 November 2021
Counsel for the Yarla-Gu Bunna Nangatjara Applicant:	Ms Maisie Harkin, Ms Sandra Evans, Mr Leonard Wells and Ms Ann Edwards appeared in person on behalf of the Yarla-Gu Bunna Nangatjara Applicant
Counsel for the Nangaanya-ku Applicant:	Mr S Wright SC
Solicitor for the Nangaanya-ku Applicant:	Central Desert Native Title Services
Counsel for the State of Western Australia:	Mr G Ranson SC
Solicitor for the State of Western Australia	State Solicitor for Western Australia

ORDERS

		WAD 213 of 2021
BETWEEN:	SANDRA EVANS & ORS ON BEHALF OF THE YARLA-GU BUNNA NANGATJARA PEOPLE Applicant
AND:	STATE OF WESTERN AUSTRALIA Respondent

order made by:	GRIFFITHS J
DATE OF ORDER:	10 November 2021

THE COURT ORDERS THAT:

1. The applicant in the Nangaanya-ku claim (WAD460/2018) be joined as a respondent in the Yarla-Gu Bunna Nangatjara claim (WAD 213/2021).

2. The Yarla-Gu Bunna Nangatjara application for native title determination filed on 8 September 2021 (WAD213/2021) be summarily dismissed and/or struck out.

3. If the parties are unable to agree on costs, within 21 days hereof each is to file brief submissions not exceeding three pages in length which explains their respective positions on costs. The issue of costs will then be heard and determined on the papers and without a further oral hearing.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1. By an interlocutory application filed on 6 October 2021, the applicant seeks to be joined as a respondent in what may conveniently be described as the Yarla-Gu Bunna Nangatjara claim (WAD213/2021), which was filed on 8 September 2021. The applicant for joinder is the applicant in what may conveniently be described as the Nangaanya-ku claim (WAD460/2018), which was filed on 9 October 2018. The basis for the joinder claim is that the applicant in the Nangaanya-ku claim has a registered native title claim over the whole of the Yarla-Gu Bunna Nangatjara claim area and therefore has an interest which may be affected by any determination in that other proceeding where the claim areas overlap.

2. The Nangaanya-ku applicant also seeks to have the Yarla-Gu Bunna Nangatjara claim summarily dismissed or struck out on various grounds, including abuse of process.

The Nangaanya-ku applicant’s evidence summarised

3. The Nangaanya-ku applicant relied upon an affidavit of Mr Giacomo Boranga affirmed on 1 October 2021, which may be summarised as follows.

4. Mr Boranga described the history of previous overlapping native title claims, being the Nangaanya-ku claim and the Nangatjarra claim (WAD348/2017) and deposed that when the Nangaanya-ku claim was filed on 9 October 2018, the applicant included Mr Leonard Wells. I accept that evidence.

5. Mr Boranga stated that the applicant in the Nangatjarra claim included Ms Maisie Harkin. I accept that evidence.

6. As part of the procedural history in those overlapping claims, on 17 September 2019, Ms Harkin filed an affidavit in support of her interlocutory application in the Nangatjarra claim seeking various orders, including orders removing certain persons from the applicant in that claim. On 5 November 2019, that interlocutory application was dismissed.

7. On 20 October 2020, the Nangaanya-ku applicant filed an interlocutory application seeking strike out or summary dismissal of the Nangatjarra claim.

8. On 26 November 2020, the Court made orders replacing the applicant in the Nangaanya-ku claim, which had the effect of removing Mr Wells and Mr Bruce Smith as members of the applicant in that claim.

9. On 18 January 2021, the Court made an order in the Nangatjarra claim that a competing native title determination application filed on 7 July 2017 by the Nangatjarra People (including Ms Maisie Harkin) be summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (see Harkin on behalf of the Nangatjarra People v State of Western Australia (No 2) [2021] FCA 3 (Harkin (No 2)).

10. On 18 March 2021, Ms Harkin filed an interlocutory injunction seeking to be joined as a...