Background
Ms Desarae Bennell applied to be joined as a respondent in the Nangaanya-ku Part B native title determination proceeding under s 84(5) of the Native Title Act 1993 (Cth). The Nangaanya-ku claim concerns land in Western Australia. Part A of the claim was determined in 2021 (by consent) to hold native title. Part B was excised pending resolution of questions concerning the application of s 47B of the Native Title Act to areas covered by certain mining leases.
Ms Bennell asserted that she descends from an ancestor named Minina and claimed native title rights within the Nangaanya-ku application area pursuant to Western Desert traditional laws and customs. She sought joinder arguing that determinations concerning claim group composition, descent attribution, and the identification of apical ancestors may affect whether her family line would be recognized within the claim group for Part B. The remaining issues in Part B are narrow: whether s 47B applies to exclude native title over certain mining-lease areas.
Ms Bennell brought her application after the Part A determination had been made and years into the Part B proceedings. The application was determined on the papers without oral argument.
The Court’s Holding
Jackson J dismissed Ms Bennell’s application on the ground that she had not satisfied the requirements of s 84(5). The Court held that Ms Bennell is not a person whose interests may be affected by the proposed Part B determination in a “demonstrable way.” Under the existing terms of the Nangaanya-ku determination, the native title holders are broadly defined as persons who hold native title rights and interests according to traditional laws and customs through one or more of: birth on the application area, birth of an ancestor there, religious or sacred authority, or long traditional association. The list of named apical ancestors is expressly stated as inclusive, not exhaustive. Therefore, if Ms Bennell’s descendants hold native title under Western Desert law and custom (as she appears to claim), they would be capable of recognition under these existing terms without need to alter the determination.
The Court found that the issues Ms Bennell wished to raise—claim group composition, apical ancestry, and descent attribution—are not live issues in this proceeding. The Part A determination conclusively resolved these matters for Part B as well. The only remaining substantive issue is whether s 47B of the Native Title Act applies to certain mining leases, which turns on specific occupation evidence, not on disputes about who qualifies for membership in the claim group.
Separately, the Court held it would not be in the interests of justice to join Ms Bennell, even assuming arguendo that her interests were affected. Joinder would introduce new issues unrelated to the remaining s 47B question, causing further delay to an already protracted proceeding. The ambiguities and inconsistencies in Ms Bennell’s position and materials would risk prejudicing a fair trial. Critically, the Court characterized disputes about claim group composition as “intramural disputes”—disputes between members or potential members of a group about who belongs—which are properly handled post-determination rather than through the determination proceeding itself, reflecting a policy preference inferred from the Native Title Act.
Key Takeaways
- Under s 84(5), a party seeking joinder must show that their interests may be affected by the determination in a demonstrable, not merely general, way. Broad expressions of interest are insufficient.
- Disputes about claim group composition and membership are properly characterized as intramural and should ordinarily be resolved post-determination through the prescribed body corporate or other mechanism, not litigated in the determination proceeding itself.
- A native title determination using an inclusive definition of native title holders—one not limited to named apical ancestors—does not trigger joinder rights for persons not listed but capable of qualifying under the broader criteria.
- The discretion to join a party is exercised having regard to procedural fairness, case management concerns (including advanced programming and imminent trial), and the history of proceedings.
Why It Matters
This decision clarifies the temporal and procedural boundaries of native title determination litigation. It distinguishes sharply between (1) the question of who, according to traditional law and custom, holds communal native title rights in an area (resolved by the determination) and (2) the post-determination question of precisely which individuals are members of the native title-holding group for administrative and entitlement purposes (resolved intramurally by the group or its corporate trustee). By refusing to litigate membership disputes at the determination stage, the Court has enforced a procedural division that allows determinations to proceed while reserving questions of individual membership for later resolution in a context better suited to peer decision-making and customary dispute resolution.
The decision also demonstrates that joinder applicants bear the burden of showing not only that they claim an interest capable of recognition, but that the determination sought will affect their interests in a way not remediable by existing legal frameworks or post-determination processes. For future joinder applications in native title proceedings, it signals that mere allegation of descent or relationship to country will not suffice without demonstrating a concrete gap between what the applicant can establish under the determination’s terms and what recognition they seek.