FEDERAL COURT OF AUSTRALIA

Dieri People v State of South Australia [2000] FCA 1327

NATIVE TITLE - proceedings arising out of claim under the Native Title Act 1993 (Cth) - Orders made that the applicants provide certain particulars and information in relation to a number of aspects of the applicants’ claim - applicants filed further particulars and further information - respondents complained that the additional material filed did not satisfy those orders - consideration of the extent to which normal principles of pleadings under the Federal Court Rules apply in such proceedings - consideration of requirements as to pleadings under the Native Title Act 1993 (Cth) - whether claim that some of the information requested is confidential excuses obligation to comply with Order - whether Order complied with by reference in general way to extensive affidavit of proposed evidence.

Federal Court of Australia Act 1976 (Cth) s 50

Native Title Act 1993 (Cth) s 82

Federal Court Rules O1 r 8, O 10, O 10 r 1(2)(a)(v), O11, O 12, O 78 r 3(2)

Petroleum Act 1940 (SA)

Petroleum Act 2000 (SA)

Dare v Pulham (1982) 148 CLR 658 considered

Ward and others (on behalf of the Miriuwang and Gajerrong People) v State of Western Australia (1998) 159 ALR 483 considered

Jones and others of the Dalungbara, Batchala and Ngulungbara People of Kgari v Queensland (Queensland Supreme Court, 3 November 1998, unreported, par 21) considered

Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 considered

State of Western Australia v Ward (on behalf of the Miriuwung Gajerrong People) (1997) 145 ALR 512 applied

Clarrie Smith v Western Australia [2000] FCA 526 applied

Daniels v State of Western Australia [1999] FCA 686 applied

Strickland v Native Title Registrar (1999) 168 ALR 242 distinguished

Western Australia v Ward & Ors (2000) 170 ALR 159 applied

Mabo v Queensland (No 2) (1992) 175 CLR 1 followed

THE DIERI PEOPLE, ANGUS WARREN, LINDA WARREN, GRAHAM WARREN, RAELENE WARREN, GREGORY GRAHAM WARREN, PERCY TUCKER, RAYMOND WILLIAM BOLAND v THE STATE OF SOUTH AUSTRALIA and OTHERS

SG 66 OF 1998

MANSFIELD J

15 SEPTEMBER 2000

ADELAIDE

REASONS FOR JUDGMENT

1                     On 14 December 1998, O’Loughlin J made orders in this matter, inter alia, that

“4.       Claim Area

On or before 26 February, 1999, the Applicants are to file and serve a map and a document precisely identifying the area subject of the native title determination application (“the claim area”), showing:

4.1               the geographic boundaries of the claim area identified by Auslig coordinates; and

4.2               which (if any) of the land or waters set out within the geographic boundaries of the claim area are excluded from the claim, for example, any land or waters which are or have been subject of any particular form of land tenure or governmental reservation or dedication.”

…

6.              Particulars of the Claim

On or before 31 May, 1999, the Applicants are to file and serve a document or documents (called “Particulars of Claim”) containing full particulars of their claim including the following:

6.1               Applicant group

6.1.1    a description of the persons on behalf of whom the native title determination application is made (“Applicant group”), including:

6.1.1.1      the composition of the Applicant group by reference to family, kinship, language, etc;

6.1.1.2      any relevant sub-groups within the Applicant group;

6.1.1.3      the criteria for membership of the Applicant group and any relevant sub-group; and

6.1.1.4      a list of all identified persons in the Applicant group including in respect of each such person (so far as is reasonably practicable):

6.1.1.4.1                    his or her name (both Aboriginal and European and names by which that person is or ever has been known)

6.1.1.4.2                    his or her current place of residence

6.1.1.4.3                      his or her date and place of birth

6.1.1.4.4                    the basis on which the person is said to form part of the Applicant group

6.1.1.4.5                    genealogy showing the person’s biological, adoptive or other connections to those ancestors who are claimed to have held traditional interests in the land or waters at the time of sovereignty

6.1.1.5      identification of those ancestors who are claimed to have held traditional interests in the land or waters at the time of sovereignty

6.2               Rights and Interests

6.2.1    A list of the rights and interests which it is claimed are native title rights and interests in respect of the subject land and water.

6.2.2    In respect of each such right and interest referred to in sub-paragraph 6.2.1 above, a description of:

6.2.2.1      where within the claim area the right or interest exists;

6.2.2.2      if the right or interest is not held by all members of the Applicant group, which individual or sub-group holds the right or interest, and;

6.2.2.3      whether the right or interest confers possession, occupation, use and enjoyment of the relevant area upon the holders or claimants to the exclusion of all others

6.3               Traditional laws and customs

A description of the traditional laws or customs under which each of the rights and interests referred to in sub-paragraph 6.2.1 are possessed.

6.4       Connection with the land and waters

6.4.1         An outline of the facts to be relied on by the Applicants to prove their contemporary connection with the claim area to show, inter alia;

6.4.1.1               the Applicant group’s possession, occupation, use and enjoyment of the area

6.4.1.2               how the traditional laws and customs referred to in sub-paragraph 7.3 above are acknowledged and observed and

6.4.1.3               any dreaming tracks, stories and ceremonies of the Applicant group concerning the claim area

6.4.2         A map or maps showing the major sites and dreaming tracks on or near the claim area, cross referenced to the information referred in sub-paragraph 6.4.1.3 above.

6.4.3         An outline of the facts to be relied on by the Applicants to prove their historical connection with the area, to show, inter alia;

6.4.3.1               the possession, occupation, use and enjoyment of the area by Aboriginal persons at the time of British sovereignty

6.4.3.2               the fact and kind of descent (if any) of members of the Applicant group from the Aboriginal persons referred to in the above sub-paragraph

6.4.3.3               when and how the Applicant group or a relevant sub-group or named members of the Applicant group, and their predecessors, acquired:

6.4.3.3.1                 the right to speak for the area or any part of the area, and/or

6.4.3.3.2                 custodial rights for the area and/or any part of the area, and

6.4.3.3.3                 from whom, and

6.4.3.3.4                 by means of what traditional laws or customs.

6.5       The determination sought.  A precise statement of the determination sought by the Applicants.”

2                     I have set out those orders in full as the matters now before the Court concern whether the applicants have complied with those orders.  It is convenient to refer to the paragraphs of the Order in those reasons without repeating their terms.

3                     On 2 June 1999, the applicants filed and served Particulars of Claim (“the Particulars”).  The first respondent, the State of South Australia (“the State”), through its solicitors, then corresponded with solicitors for the applicants about whether the Particulars satisfied the Order.  On 17 January 2000 the State filed and served a request for further information and particulars from the applicants (“the State’s Request”).  The applicants filed and served a document providing further information in relation to the State’s Request on 27 March 2000 (“the Further Information”).  It did not satisfy the State.  On 24 April 2000 the State applied for an order that the applicants provide to the State the further information and particulars contained in the State’s Request, subject to omitting certain paragraphs from the State’s Request because the Further Information provided the detail sought, and subject to certain minor corrections to the terms of the State’s Request contained in an affidavit of Peter Stanley Psaltis sworn on 24 April 2000 (“the State’s Motion”).  Those minor corrections were not contentious, and this application has been argued on the basis that the State’s Request has been so corrected.

4                     The State also sought further particulars of information provided in the Particulars and in the Further Information, but that request was not pursued at the hearing of its motion.

5                     The applicants resist the State’s Motion.  They claim that the Particulars and the Further Information satisfy the terms of the Order.

6                     The respondents Alliance Petroleum Australia Pty Ltd, Basin Oil Pty Ltd, Origin Energy Resources Ltd, Bridge Oil Developments Pty Ltd, Delhi Petroleum Pty Ltd, Novis Australia Resources NL, Oil Company of Australia Ltd, Reef Oil Pty Ltd, Santos Ltd, Santos Australian Hydrocarbons Pty Ltd, Santos (BOL) Pty Ltd, Santos Petroleum Pty Ltd, and Vamgas Pty Ltd (together, “the Producers”) by separate motion filed on 17 July 2000 also seek orders that the applicants provide them with further details of the Particulars (“the Producers’ Request).  The Producers’ Request largely, but not entirely, seeks clarification of what is meant by the term “resources” in the Particulars.  In other respects, the Producers supported the claims of the State.

7                     The applicants resist providing any further details as sought by the Producers.

8                     There were a number of other parties to this proceeding who did not seek to be heard in relation to either the State’s Request or the Producers’ Request.  The group of respondents known as the Pastoralists appeared by counsel to support the position of the State but made no separate submissions.  One party described as the Kujani claimants provided a short written submission in support of the applicants’ submissions.  The respondent Aboriginal Legal Rights Movement also appeared by counsel and made brief oral submissions in support of those of the applicants, principally focussing on the Court recognising the confidentiality of certain of the information which it has described to be provided.

general considerations

9                     The matter was argued upon the basis that, in general, the normal principles regarding the content of pleadings under O 11 and O 12 of the Federal Court Rules (“the Rules”) should apply to determine whether the Particulars complied with the Order.  Section 82 of the Native Title Act 1993 (Cth) as amended in 1998 and O 78 r 3(2) of the Rules support that position.  In Dare v Pulham (1982) 148 CLR 658 at 664 the High Court (Murphy, Wilson, Brennan, Deane and Dawson JJ) described the functions of pleadings and particulars as follows (references omitted):

“… they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of a plaintiff’s claim in aid of the defendant’s right to make a payment into court.”

10                  O’Loughlin J has clearly endeavoured, by the order, to fashion directions which have regard to the nature of the litigation under the Native Title Act 1993 (Cth) (“the Act”).  That course was also adopted by Lee J in Ward and others (on behalf of the Miriuwang and Gajerrong People) v State of Western Australia (1998) 159 ALR 483 at 495-496.  Lee J also pointed out at 504 the need to give cognisance to the evidentiary difficulties faced by Aboriginal people in presenting claims under the Act.  The Order, having regard to its terms, clearly reflects that awareness.  O’Loughlin J directed the State by 26 February 1999, well before the Particulars were to be filed, to file and serve documents and information concerning the history of land tenure in the claim area, and current land status of the claim area, and the rights and interests in the claim area held by the State or granted by the State to any person.  His Honour also qualified certain pars of the Order (eg. par 6.1.1.4) by directing the Particulars contain certain information “so far as is reasonably practicable”.

11                  Three matters of principle emerged from the submissions:

(1)               the applicants contend that, in many respects, the State’s Request amounts to a request for the disclosure of evidence rather than the eliciting of material facts or particulars directed to be provided under the Order;

(2)               the applicants contend that much of the information sought in the State’s Request is to be found in the affidavit of Ian John Tranthem sworn on 15 December 1999 or the exhibits to that affidavit (“the Tranthem affidavit”) and so need not be further provided; and

(3)               the applicants contend that in a number of respects the State’s Request requires the disclosure of confidential information, and that any such information should not presently be pleaded but should simply be adduced at trial when orders can be made as to the extent to which (if at all) such evidence should be published to other persons.

12                  They also, at certain points in their submissions, contended that certain information sought by the State’s Request or by the Producers’ Request was not necessary to be provided not because it was not required by the Order, but despite the terms of the Order.  There has been no application to O’Loughlin J or at this hearing to vary or discharge any part of the Order.  I do not therefore consider that it is necessary or appropriate to further consider that supplementary contention.  The Order stands.  If it requires the applicants to provide more information to comply with the Order, then I shall direct that it be provided.  If the applicants real concern is that the Order directs the provision of information beyond that necessary to fulfil the purpose of the pleadings, then it is clear that in the first place any application to vary or discharge that order whilst the claim is proceeding should be made to the Justice who is responsible for the case management of the proceeding generally:  see eg. O 10 of the Rules.

13                  In my view, the applicants are not excused from pleading in the Particulars facts which the Order requires to be pleaded, simply because that will require the disclosure of evidence of those facts to be adduced at the hearing.  The Order states the facts which are to be pleaded.  They are the material matters upon which the claim is based.  They are facts which it is necessary to be established if the claim is to succeed.  The question of how those facts are to be established, that is as to the evidence to be adduced to prove those facts, is a different matter.  Sometimes the line between material facts or particulars, and evidence, is hard to draw.  But in the present matter, the order identifies and describes the facts to be pleaded.  The question for my consideration is whether the Particulars, either alone or in conjunction with the Further Information, satisfy the Order.

14                  It is also my view that the reference to the Tranthem affidavit is not a sufficient or satisfactory means of complying with the Order.  The Tranthem affidavit reviews a series of published information about the claim areas or those who have lived on it between about 1874 and the 1980s.  It has ninety-nine exhibits comprising some 2,500 pages in eleven lever arch files, mostly being historical or archaeological publications.  The State has been through that material.  I accept that, from its point of view, it has been unable to identify material which shows a contemporary connection of the applicants or the Dieri people with the claim area.  The applicants dispute that; they contend that such material is part of the Tranthem affidavit.  The fact of that disagreement indicates that the incorporation of the Tranthem affidavit by general reference only is an unsatisfactory way of complying with the Order.

15                  The State claims, and the applicants dispute, that certain information in the Tranthem affidavit is inconsistent with the facts alleged in par 4.4.7 of the Particulars.  That is no reason to strike out par 4.4.7 of the Particulars, but it provides a further illustration of the unfair disadvantage to the State, and to the other respondents, which may emanate from permitting the applicants to refer to the Tranthem affidavit only in a general and non-specific way as a means of complying with the Order.  The unsatisfactory nature of pleading by extensive general reference to documentary materials was pointed out by Muir J in Jones and others of the Dalungbara, Batchala and Ngulungbara People of Kgari v Queensland (Queensland Supreme Court, 3 November 1998, unreported, par 21).  Of course, in an appropriate case, a Justice of the Court may give directions concerning defining issues other than by way of pleadings (O 1 r 8 and O 10 r 1(2)(a)(v)) in the interests of case management:  see Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 394-395 per Wilcox and Gummow JJ.  In this matter, however, the issue is whether the Order has been complied with.  The general and non discrete reference to the Tranthem affidavit does not, in my judgment, fairly serve as complying with the Order.  It is necessary, however, to consider whether the Particulars and the Further Information satisfy its terms notwithstanding also their reference to the Tranthem affidavit.

16                  The claim to confidentiality is also one which I am not prepared to accept as providing a foundation for having complied with the Order, or as an explanation for not having complied with it.  Of course confidential evidence should be protected from publication in appropriate circumstances and upon appropriate terms, but mere assertion of confidentiality (unless acknowledged by the other parties) will rarely provide a proper basis for an order under s 50 of the Federal Court of Australia Act 1976 (Cth):  see discussion in the judgment of Hill and Sundberg JJ in State of Western Australia v Ward (on behalf of the Miriuwung Gajerrong People) (1997) 145 ALR 512 at 520-522, and of Madgwick J in Clarrie Smith v Western Australia [2000] FCA 526.  I discerned in the submissions of counsel for the State that, even at the point of pleadings, the State would submit to appropriate orders that certain pleaded facts be restricted in their publication to nominated persons or to persons of a particular sex.  Thus, if necessary, the confidentiality of any facts which the Order requires to be pleaded may be protected.  At present, however, there is no application for any such direction.  The Order should be met in accordance with its terms.  If the applicants claim that compliance with its terms would lead to the disclosure of confidential information, they will have ample time to seek an order fashioned to limit the publication of that part of the information.  The parties envisage that, if the State’s Request leads to an order that further information be provided, the applicants will be given substantial time to provide that information.  During that period they can make an application to restrict the publication of confidential information which is required by the Order to be provided.

17                  In the light of those reasons, it is necessary now to address the State’s Request, and the Producers’ Request.

the state’s request

Order, par 4.2:  Claim Area

18                  Paragraph 12.3 of the Particulars identifies as excluded from the claim area all area in respect of which certain acts “validly took place” on or before 23 December 1996.  It then lists ten categories of acts by reference generally to a provision of the Act.  It does not identify any land or waters within the claim area which are accepted by the applicants as excluded because they fall within one or more of those generic categories.  Nor does it identify any particular acts which fall within those generic categories, and which the applicants accept as valid.  The Further Information indicates that the applicants have the data available to be more precise, but claim the mapping programme is beyond their resources.

19                  In my view, the applicants have not complied with par 4.2 of the Order.  If they accept that certain of the land or waters within the claim area is excluded from the claim, they should indicate what areas that land or waters covers.  The identification of the area over which the claim is made under the Act is fundamental:  see s 62 of the Act, and the discussion of that provision of R D Nicholson J in Daniels v State of Western Australia [1999] FCA 686 at [17-38].  The respondents will not then need to investigate the applicants’ claims with respect to those areas, and will not have to address any issues of extinguishment with respect to them.  The State was sympathetic to the complexity and difficulty of the applicants providing a detailed and accurate map.  It indicated that the applicants might identify the excluded areas by identifying each of the areas described in the particular acts or dealings to which the generic descriptions in par 12.3 of the Particulars refer, perhaps together with an approximate or rough map.  There may be particular acts or dealings which require a precise map.

20                  The applicants contend that strict compliance with par 4.2 of the Order is “unrealistic” as it requires extensive investigation, and ultimately findings of fact and law on contentious issues.  They refer to the comments of French J in Strickland v Native Title Registrar (1999) 168 ALR 242 at 258.  That case concerned review of the registrar’s decision not to register certain native title applications under the Act.  The exclusions from the claim area were identified by generic descriptions of classes of acts, in much the same way as par 12.3 of the Particulars.  French J expressly agreed with the description of the subjective requirements of s 62 referred to above, but regarded the adequacy of the description in the context of the registration test as being determined by a different measure:  see at 258 [52-55].  In the present matter, the Order was directed to ensuring that it is clear what areas within the claim area are excluded by the applicants from their claim.  They have not made that clear.  They have had the benefit of the tenure information provided by the State.  It provides a foundation for them to better comply with par 4.2 of the Order.  There is, at least potentially, a significant benefit to all parties in the saving of time and expense both pre-trial and at the hearing if the claims of the applicants are clear.

21                  I note that the applicants have filed and served a document on 19 May 1999 which contains a series of title references of land which is within the claim area and which they accept is excluded from the claim.  That list relates to freehold land only, and so in a practical sense may identify clearly the land which the applicants have in a generic way described in par 12.3.3 of the Particulars as excluded from the claim.  It does not relate to the generic descriptions of excluded land and waters otherwise given in par 12 of the Particulars.

Order, par 6.1:  Applicant Group

22                  In this section of my reasons I use the expression “applicant group” as it is defined in par 6.1.1 of the Order.

23                  The Particulars contain the following:  the names, addresses and date and place of birth of the seven personal applicants (par 3) and some detail of their family and kinship (par 4).  It is pleaded that those applicants are members of the Dieri Mitha Council Inc, an association representing the interests of the Dieri people (par 5.1) and of which membership is open to all people of Dieri descent including by family, kinship and initiation (par 5.2).  In addition there are three further groups of people identified by name:

(a)                ninety-two people who are descendants of the Dieri people who have traditional interests in the claim area at the time of sovereignty and who share a common genealogy with the seven personal applicants (pars 5.3 and 5.4),

(b)               thirty-four people who have “rights and interests in the claim area pursuant to Dieri law and customs” (par 5.5), and

(c)                thirteen people who are also members of group (a) by having been adopted in accordance with relevant traditional laws and customs, including by initiation (par 5.6).

24                  The State complains that the information in pars 4.1-4.7 is insufficient, that there is no information as required by par 6.1.1.1 of the Order with respect to the people named in pars 5.3, 5.5 and 5.6, that there is no information concerning any sub-groups as required by par 6.1.1.2 of the Order, that pars 5.2 and 5.3 do not satisfy par 6.1.1.3 of the Order, that par 5.5 does not satisfy 6.1.1.4 of the Order, and that only two ancestors who held traditional interests in the claim area are identified in par 4.4.7 of the Particulars.

25                  The applicants submit that pars 4.1-4.7 of the Particulars are sufficient to satisfy the Order, and that with respect to the persons identified in pars 5.3, 5.5 and 5.6 it is not reasonably practicable to provide further information.  There are, it is contended, sufficient particulars of sub-groups, and of the matters required to be addressed by pars 6.1.1.3 - 6.1.1.5 of the Order.  They also submit that if they are required to supply further information to comply with the Order, the Order requires the disclosure of evidence or of confidential information, or of information which is referred to in the Tranthem affidavit or which is not material.  I have indicated that I do not consider that either of those matters satisfy the Order.

26                  The Order was clearly made in light of principles concerning claims for recognition of native title.

27                  The nature and incidents of native title are discussed in the judgment of Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 58-62.  That passage illustrates the need to establish the existence of the rights and interests which constitute native title at the time of sovereignty, and the continued substantial connection with the land to the present time by the acknowledgment of the traditional laws and the observation of traditional customs by an identifiable group of people connected with the area over which native title rights are claimed.  That group must also show a biological descent from those who observed the traditional laws and customs at the time of sovereignty.  Where there are sub-groups or groups who are “anchored in areas of country by a particular site or geographic feature with which they had a special bond”, those special claims or characteristics of the claims may enhance and refine the native title claim:  see eg. Lee J in Ward and others (on behalf of the Miriuwang and Gajerrong People) v State of Western Australia (1998) 159 ALR 483 at 529.  It is necessary to identify those sub-groups and those special bonds to fairly put the State on notice about the nature of the claim or claims advanced by the applicants.  In addition, s 225 of the Act requires the Court to determine the nature and extent of native title rights and interests in relation to a particular claim area, although not precisely which members of the community may exercise or enjoy those rights:  Western Australia v Ward & Ors (2000) 170 ALR 159 per Beaumont and von Doussa JJ at 211.  In fairness to the State, it should be aware of the nature and extent of the rights claimed, including whether they include the exclusive right to possess, occupy use and enjoy the claim area, or whether the rights claimed or some of them are not exclusive or are limited in some other identified way.  That information will enable the State and the other respondents to investigate the claims, to be prepared to dispute such evidence as it or they wish to dispute or to acknowledge certain claims, and so to ensure the fair preparation for the hearing and the efficient conduct of the hearing.  It is in that context that it is necessary to determine whether the information provided by the applicants in the Particulars and in the Response complies with the order.

28                  I do not consider that the Particulars and the Further Information comply with par 6.1 of the Order in the following respects:

(1)               The composition of the applicant group is unclear.  It comprises the persons identified in pars 4 and 5.3 of the Particulars.  It is unclear whether the persons named in par 5.5 of the Particulars are part of the applicant group and if so upon what basis.  It is also unclear whether the persons in par 5.6 of the Particulars are persons included in the applicant group by reason of biological descent in some sense, or by more recent relationship with others in the applicant group.  The State is entitled to know whether it is asserted that, for example, those persons are included in the applicant group only by reason of recent initiation, or whether there is some more longstanding biological, kinship, family, language or other element of their eligibility to membership of the applicant group.

It is necessary for the applicants to describe the applicant group in terms which are clear, although of course it is not necessary to name all the relevant individuals.  Nevertheless, I do not consider that the Particulars and the Response identify adequately the criteria by which membership of the applicant group are to be identified.  It does not identify clearly what are the family, kinship, language or other criteria by which the applicant group is to be identified.  The kinship system is not identified.  The relevant language is not identified.  No other relevant criteria are clearly identified, except initiation.  Paragraph 5.2 of the Particulars does identify one additional (presumably alternative) criterion, namely initiation, but pars 5.3 and 5.4 refer to “descendants” who “share a common genealogy” apparently as an exclusive criterion.  As noted, par 5.5 does not indicate whether those persons are members of the applicant group, and if so on what basis.  Paragraph 5.6 does not identify, except in an unsatisfactorily general way, what criteria apply to result in apparently non-biological descendants being entitled to constitute members of the applicant groups.  Accordingly, in my view, pars 6.1.1.1 and 6.1.1.3 of the Order have not been complied with.

(2)               The existence and composition of any sub-groups is unclear.  With the possible exception of par 5.5, none are identified in the Particulars.  The applicants’ written submission claims that pars 5.3 - 5.6 of the Particulars contain that information.  I do not consider that par 6.1.1.2 of the Order is satisfied by those references; it does not emerge clearly that any relevant sub-groups are said to exist, and if so the criteria for membership of those sub-groups.  Somewhat surprisingly, in the light of the Further Information, counsel for the applicants in the course of submissions said that there were no relevant sub-groups.  Paragraph 8.4 of the Further Information refers to the seven applicants, and the persons identified in par 5.5 of the Particulars, each as a “subset” of the applicant group.

Clearly, in my view, pars 6.1.1.2 and 6.1.1.3 of the Order have not yet been properly complied with.

(3)               There is limited information about the personal details of members of the applicant group.  Subject to the uncertainty about whether the persons named in pars 5.5 and 5.6 of the Particulars are members of the applicant group, there are specific personal details only about the seven applicants.  The persons named in par 5.3 of the Particulars are said in par 5.4 to be descendants who share a common genealogy with the seven applicants.  There is no personal information about the persons named in pars 5.5 and 5.6 of the Particulars.

Paragraph 6.1.1.4 of the Order directs the disclosure of personal information about the identified members of the applicant group “so far as is reasonably practicable”.  Such information has been given only in respect of the seven applicants.  The Further Information and the applicants’ written submission claim that it is not reasonably practicable to have supplied further information.  That is surprising, as the applicants in the Further Information (par 2.2) assert the existence of a full genealogical report in respect of persons identified in the Particulars.  A full genealogical report of those who are comprising native title applicants is commonly ordered (and seems to have been contemplated by par 6.1.1.4.5 of the Order).  It also appears that two genealogy reports have been prepared and provided to the State.  The applicants did not gainsay the State’s assertions that the many persons listed in those reports do not include the persons named in pars 5.3, 5.5 or 5.6 of the Particulars, or that there is no information in those reports about gender, or dates or places of birth, or that in other respects those reports do not fully meet the terms of par 6.1.1.4.5 of the Order.  It is not apparently the same document as that referred to in par 2.2 of the Further Information.

I am not persuaded in those circumstances that it is not reasonably practicable for the applicants to provide further information in accordance with par 6.1.1.4 of the Order.  There may be concern as to the confidentiality of certain of that information, but that is not a reason not to comply with the Order.  The resources available to the applicants may also limit their capacity to comply in all respects with par 6.1.1.4 of the Order; that is why it is expressed as it is.

Accordingly, in my judgment, the applicants should be directed to further comply with par 6.1.1.4 of the Order.  It may be that the full genealogy of the persons comprising the applicant group contains all or most of that information, and that its disclosure (perhaps on terms to protect any confidential information) will satisfy that requirement.

(4)               Paragraph 6.1 of the Particulars, in response to par 6.1.1.5 of the Order, identifies “the members of the Dieri tribe at the time of sovereignty”.  It is a matter for the applicants as to what information is provided on such a matter.  The information provided will provide the foundation for the admissibility of evidence at the hearing; it is not now appropriate to foreshadow rulings which might be made on such matters, but if the applicants are presently unable to be more precise then they may be faced with objection at the hearing if they seek to lead evidence on the topic beyond the generality of par 6.1 of the Particulars.  I note also that, in the applicant’s written submission, there is non-specific reference to the Tranthem affidavit; if it is intended to adduce that affidavit or certain of its exhibits in evidence on the topic identified by par 6.1.1.5 of the Order, the facts which will be sought to be proved should presently be capable of being set out in a document responsive to the Order.

I do not give any direction concerning further compliance with par 6.1.1.5 of the Order.  I am not persuaded that the applicants can provide further information on that topic.  However, there is reason why the applicants should revisit the terms of their response in the light of my comments above.

Order, par 6.2

29                  Paragraphs 7.1.1 -7 .1.13 of the Particulars sets out the native title rights and interests claimed.  Although it is not expressly stated in the Particulars, it was said in submissions that each of those claimed rights and interests is communal (that is, is not confined to a sub-group), and is exclusive, and is pervasive (that is, is not confined to any particular area.)

30                  The State contends that the applicants have failed to identify the physical location within the claim area of the rights and interests which they assert, and have not indicated which rights or interests are held by which members of the applicant group.  The Producers have certain further concerns about the adequacy of the Particulars which I will separately address.

31                  I direct that the applicants confirm in writing to the State the position that they adopt, namely that each of the claimed rights and interests is

·                      communal, and not confined to any sub-group

·                      pervasive, that is not confined to any particular area, and

·                      exclusive, that is not shared with any other persons.

That is because it is important that the State and the Court know clearly what the applicants’ case is.  There is a possibility that the submissions at the time may not have fully addressed the true nature of the applicants’ claims.  Indeed, I perceived at some point that it was being put that the people incurred in par 5.5 of the Particulars  were of a different tribunal group or a sub-group who enjoyed limited shared rights only.  If the applicants’ case on those aspects is different from that which I have understood from submissions, then they should provide the information directed by par 6.2 of the Order in response to the State’s particular concerns.

Order, par 6.3

32                  Paragraph 8.1 of the Particulars responds to par 6.3 of the Order only in general terms.  It asserts that, at the time of sovereignty, the traditional Dieri laws and customs gave rise to the rights and interests (described in pars 7.1.1 - 7.1.13 of the Particulars) exclusively, and that

“The Dieri people were entrusted with knowledge of significant and spiritual sites, dreamings, songs and dances …”

33                  The State submits that that information fails to provide any details of the traditional laws and customs, or if the relationship between those laws and customs is in relation to any particular claimed right or interest.

34                  I accept the State’s submission.  Paragraph 6.3 of the Order directs attention to the traditional laws or customs under which each of the claimed rights and interests are possessed.  The Particulars contain no such focus.  I direct the applicants to provide that further information.  I do not consider that the task is necessarily onerous, as an appropriate response may not require a detailed description of a particular song or dance (or as the case may be).  It may be that an appropriate reference to an anthropological report may provide the relevant information.  The non-specific reference to the information in the Tranthem affidavit does not, in my view, satisfy par 6.3 of the Order.

Order, par 6.4

35                  Contemporary connection with the claim area is a critical element of the applicants’ claim.  Paragraph 9 of the Particulars refers to twenty-one matters (two with subheadings) which are said to demonstrate that connection.  The State contends that that enumeration is merely of activities conducted on the claim area, but does not indicate where or when or how or by whom those activities are engaged in.  It also contends that, in some instances, the activities are too loosely described.

36                  In my judgment, the information provided by the applicants does comply with pars 6.4.1.1 and 6.4.1.2 of the Order.  I accept the submission of the applicants that the additional information requested by the State is not necessary to serve the purposes underlying the Order.  In that ruling, I have had regard to the additional information which the applicants will be required to provide in response to par 6.3 of the Order.  The applicants may also need to review, and perhaps refine, their response to par 6.4.1.2 of the Order if they claim that certain native title rights and interests set out in par 7 of the Particulars are not communal, pervasive and exclusive; that is a matter for the applicants.

37                  The State also submits that the Particulars do not comply with par 6.4.1.3 of the Order.  In part, the applicants acknowledge that they have not complied with par 6.4.1.3 of the Order, based upon the confidentiality of the material to be disclosed having dealt with that issue earlier in these reasons.  Paragraph 10.1 of the Particulars refer to “various” sites and dreaming tracks of which four are referred to by name only.  I do not consider that that response complies with par 6.4.1.3 of the Order.  I direct that the applicants comply further with par 6.4.1.3.  Issues of confidentiality can be addressed in the manner I have referred to above.  It follows that par 6.4.2 of the Order has also not been complied with, as only one map of a particular dreaming trail has been produced.  Again, issues as to confidentiality do not justify non-compliance with the Order and can be addressed.

38                  It is equally the case that historical connection, as with contemporary connection, is a critical issue in establishing a native title claim.  Paragraph 6.4.3 of the Order is directed to that topic.  Paragraph 11 of the Particulars, in terms almost identical with those in par 9 of the Particulars concerning contemporary connection, contains the applicants’ response on that topic.  It must be read as describing the use of the claim area between the time of sovereignty and up to contemporary times.  The State contends that the information provided does not comply with par 6.4.3.1 of the Order because it does not have particular historical details about the use and enjoyment of the claim area.  I do not persuaded that par 11 of the particulars does not comply with par 6.4.3.1 of the Order.  I will not repeat the matters to which I referred in considering pars 6.4.1.1 and 6.4.1.2 of the Order and par 9.1 of the Particulars.  I think the same considerations apply.  I do not direct the applicants to provide any further information in response to par 6.4.3.1 of the Order.

39                  Paragraph 11.2 of the Particulars refers to direct lineal descendancy, descendancy as a result of marriage with direct lineal descendants, tribal initiations carried on from generation to generation, “constitution and membership” of the Dieri tribe in accordance with its traditional law and custom, and continuous exercise of the rights referred to in par 11.1 of the Particulars.  The State submits that, apart from the biological connections of the seven applicants given in pars 4.1 - 4.7 of the Particulars, no details of any of those matters or of the traditional laws, or rules or customs governing the passing of rights from generation to generation, have been provided.

40                  I indicate that in my view the present information in par 11.2 of the Particulars is not sufficient.  It does not indicate what kind of descendancy entitled persons to enjoy the interests and rights from time to time, nor what content of Dieri traditional law and custom identified that kind of descendancy.  It does not indicate whether, for example, direct lineal descendancy is a requirement of that law and custom or is an alternative to it (that is, for example, is par 11.2(a) an alternative to or an illustration of or the requirement of the law and custom referred to in par 11(2)(d)).  Similar points could be made of the other subpars of par 11.2 of the Particulars.  The additional information to be provided to comply with pars 6.1 and 6.3 of the Order is likely to satisfy the State’s concerns in part.  It will probably not entirely do so.  I direct that the applicants provide further information in response to par 6.4.3.2 of the Order in the light of these reasons.  If appropriate, they may provide that further information by reference to other information which I have directed them to provide.

41                  Paragraph 11.3 of the Particulars is in response to par 6.4.3.3 of the Order.  It describes the acquisition of rights by descent and at stages:  birth, initiation or adoption, or marriage.  It identifies when the rights referred to in par 6.4.3.3 of the Order were acquired (either at birth or upon initiation).  It therefore does not explain the significance of adoption or marriage to the inheritance of or accession to rights referred to in par 11.3.1 of the Particulars.  The State also submits that the applicants do not give details of when or how the applicant group (as distinct from individual members) acquired those rights, nor of the traditional laws or customs by which those rights were acquired (par 6.4.3.3.4 of the Order).  In those respects, I do not think that the information provided by the applicants complies with the Order.  I direct that further information be provided to comply with par 6.4.3.3 of the Order.  It may be that there are different rights enjoyed by different members of the applicant group, by reason of lineage or sex or other factors; if so those matters should be readily explained.  I consider that it is necessary to comply with them to comply with par 6.4.3.3 of the Order.

the producers’ request

42                  The Producers’ specific focus is upon the extent to which the applicants claim native title rights and interests in respect of “resources” as expressed in par 7.1 of the Particulars.  Paragraph 7.1.1 claims “possession use occupation ownership and full beneficial enjoyment of the land and its resources”.  Paragraph 7.1.4 claims the right to use and enjoy the resources, including the right to take materials such as “ochre stones minerals wood bush medicine and feathers”; they fall within the generic description of surface resources.  Paragraphs 7.1.5 - 7.1.7 claim rights to control the use and enjoyment of others of the resources, to trade in the resources, and to receive a portion of resources taken by others (a right which seems inconsistent with the absolute right over resources which is claimed, and with the absolute right to control access to the claim area).

43                  The Producers want the applicant to identify the native title rights and interests claimed in respect of resources to ascertain the extent to which their interests are affected by the claim.  The use of “resources” may encompass underground minerals such as petroleum, and surface features such as water.  The fact that minerals deep underground may be unlikely to have been the subject of traditional use might indicate, they submit, that the applicants do not claim them or, if they do, that the basis of their claim should be clear.  There are other rights claimed in par 7.1 of the Particulars which also affect directly the Producers’ interests and which, they submit, are not clearly spelled out.  These include the right to exclude others from the claim area if not authorised by traditional law, the right to decide on the use and enjoyment of the claim area, and the right to protect sites of spiritual significance.

44                  The applicants submit that “resources” has its normal and natural meaning, and that they have sufficiently particularised their claim.  The submission makes it clear that the claim extends to underground resources.  However, in my view it does not indicate clearly whether that claim is made on the basis that it is a claim directly based on native title rights and interests, or is a claim made in some more inchoate way by virtue of actual native title rights and interests or is a practical consequence (for example) of the exclusive right to control access to the claim area.  As counsel for the Producers pointed out, there is also some disharmony between the relevant claims as expressed in par 7 of the Particulars and as expressed in par A.9 of the applicants’ initiating Native Title Determination Application.  The observations of Beaumont and von Doussa JJ in Western Australia v Ward & Ors (2000) 170 ALR 159 at 288 [17] also indicate that it is important that, in the context of a native title claim, the claim to “resources” should be clearly identified.

45                  The identification of that claim, especially having regard to the excluded areas of the claim (at present) acknowledged only in a generic way in par 12.3 of the Particulars, is important.  The extent to which the Producers may assert, and seek to establish, extinguishment will be clear only in the light of it being clearly expressed.  I have ordered that further detail of the excluded areas be given in accordance with par 4.2 of the Order, when dealing with the State’s Request.

46                  It is also important to the Producers to know the classes of resources over which native title rights by traditional use or custom are claimed, as the Producers’ activities or proposed activities in relation to the claim area may involve access to particular areas, water usage, and surface disturbance for various aspects of their operations.

47                  As the Producers apparently claim certain rights with respect to the extraction of “petroleum” from the claim area granted under the Petroleum Act 1940 (SA) (using that term as defined in that Act), and to “regulated resources” as defined in the Petroleum Act 2000 (SA), their request for particulars makes specific reference to those terms.  There is, therefore, some overlap in the request for particulars concerning the terms ‘Underground Resources’, ‘Regulated Resources’ and ‘Petroleum”.  I do not consider that any hardship would be caused to the applicants by having to deal with those separate questions.  The Petroleum Act 2000 (SA) has not yet been proclaimed.  It will repeal the Petroleum Act 1940 (SA) but will preserve the rights or licences granted under that Act.  It is my view that it is sensible to permit the producers to obtain further particulars of the claims of the applicants in terms which are readily understood by reference to those two enactments.

48                  In my judgment, the Particulars as presently expressed do not identify clearly those matters about which the Producers are concerned.  That is not a criticism of the Particulars as presently expressed, but is really a consequence of the refined interest of the Producers in this proceeding.  I also regard the Producers’ concern as a reasonable one.  The further information requested will, when supplied, more clearly indicate the potential areas of dispute and will enable the focus on issues at the hearing to be more confined.  The particulars sought will therefore be of benefit in securing a fair hearing, and an efficient hearing.  I do not consider that they will be onerous to provide; I suspect counsel for the applicants would have provided them, or most of them, orally if pressed during submissions.

49                  Accordingly, subject to the following, I am disposed to direct the applicants to provide to the Producers further detail of the Particulars in accordance with the Sch 2 to the Producers’ notice of motion dated 17 July 2000.  In a few respects, however, I propose to alter that schedule as I consider it requests a little more than the Producers reasonably require and is a little too open ended.  I accordingly propose to alter that schedule by inserting in par 1.1 line 1 after “resources” the following “(eg water)”.  I also require the Producers to further limit that request by reference to “resources” which they foresee may touch upon any claims they may have to access to the claim area or to extract resources (whether surface or underground resources) from the claim area.

50                  I also propose to give the applicants the opportunity to make further submissions as to whether they should be required to give the further particulars sought in pars 1.2.2, 1.3.2, 1.4.2, 1.5.2, 1.6.2, 1.7.3, 1.9.1, 1.11, 1.13, 1.14, 1.16 and 2 as that information will largely have to be provided (although not in the same form) in accordance with my rulings on the State’s Request.  It may be that, in the light of my rulings on the State’s Request, the Producers will no longer separately pursue those particulars.

51                  For the sake of completeness, I note that the Producers have sought the additional particulars whilst reserving their position that the native title rights and interests outlined in pars 7.1.5, 7.1.6 and 7.1.7 of the Particulars are not claimed in the applicants’ Native Title Determination Application.

orders

52                  I direct that the State draw up an order to reflect the reasons and rulings given on the State’s Request.

53                  I will hear the applicants and the Producers further on the matters referred to in par 50 above, and will direct the Producers to draw up an order to reflect the reasons and rulings given on the Producers’ Request and in the light of further consideration on that remaining aspect.

Associate:

Dated:              15 September 2000