A short summary on Aboriginal and Torres Strait Islander respondents to native title claims

Pursuant to s.84(5) of the Native Title Act 1994 (Cth) (the NTA) the Federal Court of Australia (the Court) may at any time join a person as a party 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. This needs to be done by making an application to the Court to be joined as a Respondent. This is called an ‘interlocutory application’. Aboriginal and Torres Strait Islanders can also be joined as respondents when a claim is in the notification period, by filing the required form. More information about that process is available through the National Native Title Tribunal and the Federal Court of Australia.

Joining as a respondent gives the individual Aboriginal and Torres Strait Islander respondents an opportunity to hear and test the evidence and participate in the way the native title claim is progressed.

What does the Court need to look at?

For the purposes of s.84(5), if an Aboriginal and Torres Strait Islander wants to join a native title claim, the Court must be satisfied that:

The person has an interest;
The interest may be affected by a determination; and
It is in the interests of justice to join the person.

The power pursuant to s.84(5), NTA is up the Court, or ‘discretionary’,[1] although if the Court is satisfied that the person’s interests may be affected and that it is in the interests of justice that the person be joined, the person must be joined.[2] In determining whether the person’s interests may be affected the Court must not decide on contested questions of fact.[3]

How does the Court work out if an Aboriginal or Torres Strait Islander should be joined?

A native title interest is a sufficient interest for the purposes of s.84(5), NTA.[4] A respondent cannot seek or obtain a determination of native title[5] and cannot act in a representative capacity on behalf of others,[6] but they can defensively assert a personal right in order to protect it from erosion, dilution, or discount.[7] This defensive assertion cannot result in a determination of native title that recognises any native title rights and interests claimed by the individual, unless they are also a member of the native title claim group.

Intramural matters are not interests of the type justifying joinder,[8] however a contest about the membership or composition of the claim group is not an intramural matter.[9]

A claim group member should not be described as dissentient if their contentions differ from the Applicant’s as to the composition of the claim group and as to the area of land and waters in respect of which native title is held.[10] Where a claim group member is disputing the composition of the claim group, the Court is more likely to permit joinder.[11] A determination of native title rights and interests in the form sought by the Applicant would affect that person’s interests because of the conflict between the two.[12]

The traditional connection of a member of a different Aboriginal society is an interest capable of being affected in a demonstrable way by a determination of native title.[13]

How does the Court work out what is in the interests of justice?

Key matters for consideration as to whether it is in the interests of justice to join a party to the proceedings, include:[14]

The overarching objects and purposes of the NTA and the overarching purpose of civil practice and procedure in s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth). This includes the facilitation of the just resolution of disputes efficiently, in a timely manner and at a cost proportionate to the dispute’s importance and complexity;
That proceedings for a determination of native title are proceedings in rem (they bind non-parties), and it is fundamental that an order that directly affects a third person’s rights or liabilities should not be made unless the person is joined as a party[15];
Whether consideration of the rights and interests of the joinder party would lead to a more accurate definition of the native title claimed[16];
Whether the person seeking joinder has given a satisfactory exploration for any delay;
The prejudice that may be caused to existing parties if the person is joined;[17]
Whether the interest asserted can be protected by some other mechanism;[18] and
The history of the proceedings.[19]

Are there any other issues to consider?

The native title system is complex. For example, if an application to be joined as a respondent is contested and lost, there are risks. This includes risks of costs being awarded against unsuccessful joinder applicants. Further, even if an application to join is successful, the respondent may still be removed later, including if it is impacting a native title determination agreed by all other parties.[20] Importantly, even if an individual remains as a respondent, they cannot have native title rights recognised in a native title determination without a native title claim. There may be good reasons why a native title claim is not possible or appropriate in the circumstances.

For more information about Aboriginal and Torres Strait Islander respondents to native title claims, contact us.

This is a general summary only and is not legal advice. You should seek legal advice from a native title lawyer if you are unsure how this summary may apply to your circumstances.

[1] Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia [2023] FCA 930 (Dimer), at [41] (O’Bryan J).

[2] Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369, at [18] (Rangiah J).

[3] Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310 (Chippendale), at [16] (Greenwood J).

[4] Dimer, at [41]; see also Chippendale, at [15].

[5] Commonwealth v Clifton (2007) 164 FCR 355, at [57]-[58] (Branson, Sundberg and Dowsett JJ).

[6] Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 (Miller), at [110] (White J).

[7] Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942, at [18] (Reeves J); Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321, at [17] (Reeves J).

[8] TR (Deceased) on behalf of the Kariyarra – Pipingarra People v State of Western Australia [2016] FCA 1158 (Kariyarra–Pipingarra People), at [36] (North ACJ).

[9] Kariyarra-Pipingarra People, at [36]-[37]; see also Miller, at [125].

[10] Dimer, at [116]-[117] (O’Bryan J).

[11] Bell on behalf of the Wakka Wakka People #4 v State of Queensland [2020] FCA 695, at [45] (Rangiah J).

[12] Dimer, at [117].

[13] Davis-Hurst v New South Wales Minister for Land and Water Conservation [2003] FCA 541, at [27] (Branson J).

[14] Dimer, at [41].

[15] Gamogab v Akiba (2007) 159 FCR 578, at [59], [60] (Gyles J).

[16] Akiba and Others on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 2) (2006) 154 FCR 513 (Akiba), at [37] (French J).

[17] See too Worimi Local Aboriginal Council v Minister for Lands for New South Wales (2007) 164 FCR 181 (Worimi), at [37] (Bennett J).

[18] Akiba, at [38].

[19] Worimi, at [5], [34].

[20] See for example Forrest on behalf of the Kakarra Part A Native Title Claim Group v Western Australia (No 2) [2025] FCA 140.