Native title year in review 2024-2025

What you need to know

• The Court has power under section 84(8) of the Native Title Act to remove a respondent from a native title claim, including an Indigenous respondent asserting competing native title rights and interests.
• Persons seeking to be a respondent to native title claims on the basis that they have native title rights and interests in the claim area are permitted to pursue only a personal claim in those rights and interests; that is, to protect their personal rights and interests from erosion, dilution or discount. A person cannot be joined, or remain, as a respondent if their purpose is to act as a representative to assert native title on behalf of other people (Bates v Attorney General of New South Wales [2024] FCA 1439).
• Indigenous respondents can be removed as parties if they fail to participate in the progress of the claim (Warrabinga-Wiradjuri People #7 v Attorney General of New South Wales (No 4) [2024] FCA 1458).

What you need to do

• Indigenous people seeking to join as a respondent to a native title claim to protect their competing native title rights and interests must be careful to ensure that they assert personal and not representative rights. Representative rights must be asserted by filing an overlapping native title claim.
• The removal of non-active respondents (including Indigenous respondents) is not an unusual step in native title claim proceedings as they move to the stage of active case management towards a consent determination of native title or a hearing. Indigenous respondents must ensure that they comply with Court orders to progress the claim if they wish to remain a party.

Native title respondents to native title claims can pursue only personal claims, not representative ones

In Bates v Attorney General of New South Wales [2024] FCA 1439, the Court ordered the removal of two Indigenous respondents from the Malyangapa native title claim on the grounds that they were asserting representative, not personal, native title rights and interests.

The Court noted that earlier authorities on the issue of joinder and "dis-joinder" had said:

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 their personal rights and interests from erosion, dilution or discount. Conversely, a person cannot be joined, or remain, as a respondent party if their purpose in being so joined is to act as a representative to assert native title rights on behalf of other people.

The two Indigenous respondents in this case failed to convince the Court that they sought to remain respondents to protect their personal native title rights and interests in the claim area. Properly understood, the interests which they sought to assert were representative on behalf of the Wongkumara People, who hold native title nights and interests in the neighbouring land. Both had been applicants in the Wongkumara claim before it was determined.

Indigenous respondents can be removed as parties if they fail to participate in the progress of the claim

In Warrabinga-Wiradjuri People #7 v Attorney General of New South Wales (No 4) [2024] FCA 1458, the Court ordered the removal of 54 Indigenous respondents to the Warrabinga-Wiradjuri People #7 claim because they failed to participate in the progress of the claim after filing their joinder applications many years earlier, despite a number of Court orders requiring them to do so.

The Court noted that section 84 has been interpreted by the Court to place obligations upon a respondent claiming an interest to do more than simply assert a mere interest and then sit back.

The following factors are relevant to the exercise of the discretion to remove a respondent: the legislative purpose to encourage parties to resolve native title claims by conciliation and negotiation; the overarching purpose of facilitating the just determination of proceedings before the Court in the most inexpensive and efficient way possible; the significant time, money and other resources invested in the proceedings by the active and participating parties; the probable delay in, if not significant impediment to negotiating an agreed outcome to the claim; and, whether the parties’ interests are already adequately addressed by the claim group.

In exercising its discretion, the Court took into account the following:

• The non-compliant Indigenous respondents’ claimed Wiradjuri native title interest was expressed in a broad and generic form. It provided no details to identify how each respondent comes to have native title interests in the claim area or why it is that the applicant does not hold rights as claimed. Nor did any of the non-compliant Indigenous respondents supply documentary evidence to support their claim. At no stage since filing the Form 5 did the non-compliant Indigenous respondents make the nature of their claims clear or provide material to support them.
• It may be inferred that since 2017 the active parties, particularly the applicant, incurred considerable expense in the conduct of the proceedings. The Court record indicated that numerous mediations have been conducted over a number of years by a Registrar of the Court, including mediations concerning the interests claimed by the these respondents. The non-compliant Indigenous respondents had participated in none.
• The orders of the Court on 4 December 2023 and 1 March 2024 required the non-compliant Indigenous respondents to take steps in the proceedings, but none were taken.

Key insights

Indigenous people seeking to join as a respondent to a native title claim to protect their competing native title rights and interests must be careful to ensure that they assert personal and not representative rights. Representative rights must be asserted by filing an overlapping native title claim.

The removal of non-active respondents (including Indigenous respondents) is not an unusual step in native title claim proceedings as they move to the stage of active case management towards a consent determination of native title or a hearing. Indigenous respondents must ensure they comply with Court orders to progress the claim if they wish to remain a party.