FEDERAL COURT OF AUSTRALIA

Ford v NSW Minister for Land & Water Conservation [2000] FCA 1913

ESTHER FLORENCE FORD v MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AND ORS

NG 6030 OF 1998

LINDGREN J

19 DECEMBER 2000

SYDNEY

THE COURT ORDERS THAT:

The application be struck out under s 84C of the Native Title Act 1993 (Cth).

THE COURT NOTES THAT:

There will no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     In this proceeding, a motion is brought by notice of motion filed on 26 October 2000 by the second respondent (“the Land Council”) seeking an order:

“that the native title claim lodged at the National Native Title Tribunalon 9 April 1996 … be dismissed.”

2                     The order sought is not in terms an order for striking out under s 84C of the Native Title Act 1993 (Cth) (“the Act”), but appears, on its face, to invoke the Court's jurisdiction under O 20 r 2 of the Federal Court Rules.  Order 20 r 2 provides as follows:

“2(1)   Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding –

                        (a)        no reasonable cause of action is disclosed;

                        (b)        the proceeding is frivolous or vexatious;   or

                        (c)        the proceeding is an abuse of the process of the Court,

the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.

(2)       The Court may receive evidence on the hearing of an application for an order under sub-rule (1).”

3                     The submissions made on behalf of the Land Council were not, at least in terms, directed to establishing any one of the three grounds mentioned in O 20 subr 2(1).  Rather, they were directed to establishing that the application did not comply with certain provisions of the Act. 

4                     Subsection 84C(1) of the Act provides as follows:

“If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application”.

5                     Section 84C was introduced by the Native Title Amendment Act 1998 (Cth) (No 97, 1998) which amended the Act extensively.  In accordance with convention, I will call the Act as it existed prior to the amendments “the old Act”, and I will call the Act as it was amended “the new Act”.  A transitional provision found in cl 21, Part 5, Schedule 5, to the amending Act is as follows:

“Section 84C of the new Act applies where the main application mentioned in that section was made either before or after the commencement of that section.  If the main application was made before the commencement, the reference in that section to section 61 or section 62 is a reference to section 61 or section 62 of the old Act.”

6                     Section 84C commenced to operate on 30 September 1998.  Accordingly, s 84C is available in relation to an application made under the old Act but is to be read in such a case as if it referred to s 61 or s 62 of the old Act rather than to those sections of the new Act.

7                     In view of the way that the submissions were made, that is, as being concerned with the compliance or otherwise of the native title determination application in question with s 61 of the old Act, I will treat the motion as seeking a striking out of the application under s 84C.  A striking out of the application, being the document which commenced proceedings, has the same result as a summary dismissal; in each case a fresh application can be made.

8                     On 9 April 1996, the application in question was made to the National Native Title Tribunal by being lodged with it on that date.  It was given the number NC 96/11.  The Registrar of the Tribunal registered the application on the same day.  It was an application by a person or persons claiming to hold native title.  The named applicant was Esther Florence Ford (nee Bell).  Section 61 of the old Act imposed requirements in relation to such an application.  Subsections 61(2) and (3) of the old Act provided as follows:

“(2)     An application must be in the prescribed form and be given to the Registrar.  It must also contain such information in relation to the matters sought to be determined as is prescribed.

(3)               An application made by a person or persons claiming to hold native title, or to be entitled to compensation, with others must describe or otherwise identify those others.  In doing so, it is not necessary to name them or to say how many there are.”

9                     The National Native Title Tribunal Regulations were made under the old Act.  Subregulation 4(1) provided that for the purposes of subs 61(2) of the old Act, a native title determination application must be in accordance with Form 1 in Schedule 1 to the Regulations.  Subregulation 5(1) provided that for the purposes of subs 61(2) of the old Act, in the case of a native title determination application the information specified in Form 1 was prescribed.  The prescribed form of application was to the effect that the applicants applied for a determination of native title and provided for information to be supplied under various headings.  The headings of present relevance required the applicants to describe the other persons with whom the applicant claimed to hold native title and details of the native title rights and interests possessed.  The Land Council's case is that application NC 96/11 did not comply with these two requirements.

10                  On 12 August 1996, the Deputy Registrar of the Tribunal referred the matter to Mr J.H. Wootten QC, a Presidential Member of the Tribunal because the Registrar considered that the requirements of s 62 of the old Act were not complied with.  (Subsection 64(1) provided that, if the Registrar considered that the requirements of s 62 were not complied with in relation to an application, the Registrar must refer the application to a presidential member.)  The particular way in which the Registrar was not satisfied that the application complied with s 62 was that it did not comply with the requirement of par 62(1)(c) that an application must contain a description of the area over which the native title is claimed.  Paragraph 64(2)(a) of the old Act provided that if a Presidential Member also considered that the requirements of s 62 were not complied with, the Presidential Member must advise the applicant in writing of the fact and give the applicant a reasonable opportunity to satisfy the Presidential Member that the requirements were complied with. On 4 September 1996, Presidential Member Wootten wrote to Esther Florence Ford, the applicant, requesting further information in relation to the description of the land.

11                  By an undated letter from Mr Reuben Brown to the Presidential Member, Mr Brown sought an extension of time in which to comply with the letter of 4 September 1996. 

12                  On 19 September, 22 October and 18 November 1996, Mr Brown wrote to the Presidential Member in relation to the question of amending the description of the area the subject of the application.

13                  On 2 December 1996, Mr Brown submitted the following draft of the determination sought by the applicant:

“(a)     Native title exists in the area the subject of the claims.

(b)               The native title is held by the Elouera Aboriginal People and the living descendants of the Woolongoolow Clan.

(c)       The native title rights confer possession, occupation, use and enjoyment of the land and waters to the exclusion of all others, subject to any rights and interests or applicable laws preserved by the Native Title Act.”

The evidence does not reveal what prompted Mr Brown to submit this draft determination.

14                  On 4 December 1996, the Presidential Member gave his decision in writing on the reference that had been made to him by the Deputy Registrar on 12 August 1996.  In his Decision, the Presidential Member stated that the Deputy Registrar had been of the view that the application did not adequately describe the land over which native title was claimed, mainly because of difficulties in relating the written description to the maps that had been attached to the application.  The Presidential Member stated that since he had been of the same opinion as the Deputy Registrar as to one of the issues raised, he had written to the representative of the native title claimant, giving the applicant an opportunity to satisfy him that the requirements of s 62 were complied with.  The Decision then continued as follows:

“The representative of the applicant had now submitted a number of amendments and clarifications.  As a result I consider that the requirements of s. 62 are now complied with and I direct the Registrar to accept the application.

The Deputy Registrar also pointed out the exclusion of freehold in the claim was not in the terms put forward in the Tribunal’s Revised Guidelines.  It is however an exclusion of most freehold land, and I do not consider that such differences as exist would justify a refusal to accept the claim.”

15                  On the same day, 4 December 1996, a delegate of the Registrar accepted the application.

16                  The concern of the Deputy Registrar and therefore of the Presidential Member appears to have been confined to the matter of compliance with par 62(1)(c) of the old Act which required that a native title determination application by a person claiming to hold the native title in relation to an area must “contain a description of the area over which the native title is claimed.”

17                  On 30 September 1998, the application that had been made to the Tribunal (NC96/11), was taken to have been made to this Court: see Native Title Amendment Act 1998 (No 97, 1998) Schedule 5, Part 3, Items 5 and 6.  It has become the present proceeding in this Court.

18                  Although it is not directly relevant to the present application by the Land Council, I note that item 11(4) of Schedule 5 had the effect that the Registrar was required to consider the claim under s 190A of the new Act, and that on 3 May 1999 the Registrar did so and decided not to accept the application for registration.  Accordingly, on the same day, 3 May 1999, particulars of the application were removed from the Register of Native Title Claims.

19                  On the present application, the Land Council concentrates its submissions on the adequacy of the identification of the other claimants, that is, the claimants other than Esther Florence Ford, and on the identification of the native title rights and interests.  I will deal with these two matters in turn, but note that at an earlier time, the Land Council also submitted that on two other grounds (failure to identify adequately the area covered by the application and failure to submit a draft determination as required) the application should be dismissed.  Those two grounds are no longer pressed.

20                  In the application as lodged with the Tribunal, Mrs Ford identified the other claimants as “The Elouera people”.  The Land Council has on many occasions before the Court, contended that this is an inadequate identification of the other claimants, that is, that it does not comply with the requirement of subs 61(2) of the old Act.  I agree.  Identification in those terms without more is not meaningful to the Court.  Identification in those terms alone does not make it clear whether a particular person is a person on whose behalf Mrs Ford is making the claim.  I accept that no matter what description is used, there can be debate about whether a particular individual is or is not such a person, but the mere words "The Elouera People", without any elaboration, does not convey meaning to the Court, or to individuals who may be contemplating applying to be joined as a party.

21                  I note that a similar approach was taken by Madgwick J to the expression, “the Korewal Aboriginal People”, in Korewal People - Longbottom v NSW Minister for Land & Water Conservation (No 2) [2000] FCA 1237, at pars 10-12. 

22                  Mrs Ford made an affidavit, apparently on 27 July 2000, which was filed on 28 July 2000, in which she apparently sought to overcome the inadequacy of the description.  Although the material contained in that affidavit is lengthy, I propose to set out pars 3, 4 and 5 of it, because they indicate the kind of problem that one encounters in seeking to extract from diffuse affidavit material an identification of the other claimants on whose behalf Mrs Ford is claiming.  Paragraphs 3, 4, and 5 are as follows:

“3.  Section 190B(1)(3) of the Act provides that the ‘Registrar must be satisfied that:  (a) the persons in the native title claim group are named in the application;  or (b) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.’  The native title claim group is comprised of the persons identified at point 3.1, 3.2 and 3.3 below.

By way of preface to identifying the native title claim group, I wish to point out that my original native title application only nominated myself as the applicant but was on behalf of the Elouera people.  That is, all persons who have common law rights in respect of native title over the area that is the subject of the claim.  The following particulars identifies those persons.

3.1       The native title claim group is (firstly) comprised of the following individuals: 

(a)   Mrs Esther Florence FORD (nee Bell),

(b)   Mrs Gwendoline Laura BROWN (nee Bell)

(c)    Mr Ernest William DUREN,

These persons also have native title interests in regards to NG6006/98, NG6098/98 (for which and without prejudice, leave of the Court is being sought to withdraw the claim);  NG6100/98 (for which and without prejudice, leave of the Court is being sought to withdraw the claim);  and NG6099/98.

The native title claimant group as identified here, are descended from one or more of the persons identified at point 5 below.

In the matter VG6011/98 (VC97/9) Wadi Wadi claim, this native title claim was considered to have passed the Registration Test (decision date 31/05/2000) in relation to section 190B(1)(3) on the basis of identify the applicants as the descendants of named forebears.  The National Native Title Member in reaching the decision that the description of the claimant group met the requirements of the Act, said:  'It is my view that this simple and discrete description is sufficiently clear to enable it to be ascertained whether a particular person is or is not a member of the native title claim group' going on to say: 'the description is supported by genealogical information ....'

Genealogical particulars relevant to the persons named at point 3.1(a), (b) and (c) have been provided to the Crown Solicitor's Office in response to an outcome of the first Mediation Conference in regard to NG6006/98.  This includes Family Trees detailing biological links of those persons to the forebears named at point 5 below.  A response from the Crown Solicitor's Office as to the credibility of the evidence is anticipated on or about the 1st September 2000.

3.2   The native title claim group is (secondly) comprised of those persons who are:  (d) current members of the Korewal, Elouera and Jerrungarugh Tribal Elders Corporation (the body corporate).

These persons include those who are known to the native title applicant group identified at 3.1(a), (b) and (c) as having genealogical links to those apical ancestors identified at point 5 below.  The description of them as being current members of the body corporate does no more than state their current position.  That is, that they are not personally named in this Affidavit but are known to have common law rights and interests in the area that is the subject of this claim.

In the Federal Court Case Western Yalanji or Sunset People v Alan and Karen Pederson & Ors heard before Justice Drummond (18/10/1998) the native title holders were identified in terms of their apical ancestor.  'The actual descendants were not, it seems, required to be individually named'.  (Negotiating the Registration Test for native title claims, A manual for Anthropologists working with Native Title representative bodies, pp12).

3.3   The native title claim group is (thirdly) comprised of:  (e) all future members of the body corporate.

Membership of the body corporate is open to all Aboriginal people who meet the criteria detailed at Point 6 below.  Associate membership is available to all other people who support the aims and objectives of the corporation.  Associate Members do not have common law native title rights.

3.4   The native title claim group identified at point 3.1(a), (b) and (c) acknowledge that there are persons known to them, who meet the criteria at point 6 below, but are not members of the body corporate.

Justice Woodward has suggested:  'Some form of incorporation for Aboriginal groups will be necessary for land-owning purposes, and if it is sufficiently flexible to cover both communities and clans, it may well be practicable for different Aboriginal people to organise themselves as they see fit'.  (Building on Land Rights for the Next Generation, Report on the Review of the Aboriginal Land Rights [Northern Territory] Act 1976, pp1).

The body corporate was incorporated in 1994, to (among other things) work to protect the common law rights of all common law native title holders.  Not all people who are known by the native title group to meet the criteria detailed at point 6 have chosen to become members of the body corporate.  People choose to organize themselves as they see fit.  However the common law would include, not exclude, all persons who are determined on evidence to have common law rights.  This is further discussed at point 4.

3.5   The native title claim group identified at point 3.1(a), (b) and (c) acknowledge that there are persons unknown to them, who would meet the criteria at point 6 below.  Common law would include, not exclude, all persons who are determined on evidence to have common law rights and any such persons are thereby included, not excluded, from this native title application.  This is further discussed at point 4.

4.         Identification of the claimant group and authorisation:  In the period June 2000 (approximately) to the present time, Ms Phillips (Barrister) as Counsel for the Native Title Unit (NTU) of the NSW Aboriginal Land Council, has instigated a number of discussions about native title claim NG6030/98 and others of which I am a member of the claimant group.  I believe discussions have been held between Ms Phillips and Mr Adam McLean (Barrister) who was briefed by the NTU to represent me in this matter (NG6030/98) and other native title claims to which I am a member of the native title claim group.  Further discussions have taken place between Ms Phillips (Barrister) and Mr Reuben Brown (Chairperson of the body corporate and contact person for this application) and Mr Geoff Moore who acts as a consultant to the body corporate.

The subject of these discussions has been alleged defects as to form of the original native title applications that are now before the Court, that (in the opinion of Ms Phillips) warrant dismissal by the Court.  Identification of the claimant group and authorisation are two of the alleged defects.  These discussions have resulted in the recommendation by Ms Phillips, that this (and other native title claims) be withdrawn by the applicant(s).

These matters have been formally stated by Mr Danny Chapman, Manager of the NTU, in a letter dated 6th July 2000, in which he requested the withdrawal of this and other subject native title claims.  During a meeting with Mr Chapman and Mr Reuben Brown, Mr Geoff Moore and representative members of the body corporate, on the 13th July 2000, Mr Chapman addressed the matter of identifying the claimant group and authorisation.  Specifically, he outlined a procedure of:  (1) calling of public meetings of interested parties;  (2) identification of a claimant group;  (3) the election of a person to act on behalf of the claimant group and (4) authorisation.

I envisage that such a process could result in the identification of a claimant group that may include people who do not have traditional links to the area that is the subject of the native title claim.  It has been my experience that a number of Aboriginal people purport to have traditional links to a geographical area that are false.  I also foresee the election of a person other than myself, during this process, as the authorised applicant.

It has also been my experience, that the NTU has continually opposed this (NG6030/98) and other native title applications to which I am a member of the claimant group.  I believe that the recommendation by counsel for the NTU to withdraw applications, is an example of this opposition.

In 1995 Gaynor Macdonald from the University of Western Sydney, made the following comments at a workshop conducted by The Australian Anthropological Society and The Native Titles Research Unit Australian Institute of Aboriginal and Torres Strait Islander Studies in February 1995 (published in Anthropology in the Native Title Era, Native Title Research Unit Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra (ISB O 85575 283-1), pp 58-59):-

'In NSW I think we've got a slightly different situation, which I think may potentially become a problem.  And that is whether the group that has been identified as a Representative Body is representative at all.  And there's a conflict of interest within that representative group, which is the NSW Aboriginal Land Council.'

'There would certainly be people within this Representative Body who would not have the interests of certain native title claimants at heart in NSW.'

An example of opposition to this native title application (and others) has been the continual denial of funding to our body corporate, for the engagement of professional assistance in the development of credible evidence in support of this and other native title applications.  I qualify this by pointing out that the NTU has offered to provide the professional assistance of at least two Anthropologists that they have engaged.  At one time the body corporate accepted this assistance on the proviso that assurances of confidentiality would be given.

Gaynor Macdonald pointed out the difficulties involved in terms of confidentiality of material by saying:  (if)  '...I for instance, enter into a contract with the Representative Body to conduct research on behalf of particular claimants, what happens to the material I produce?  The people I will call my clients for the moment are really concerned that that material will end up in the offices or files of that Representative Body.  They don't want that to happen.  I don't know how I will address that problem.  I'm just feeding that in as a very real problem we have in NSW.'

In my experience these problems remain unresolved.

I also point out that during a meeting held with Mr Danny Chapman, Manager of the NTU, on the 13th July 2000, it was pointed out that S251B(a) of the Native Title Act provides for traditional decision making in regards to authorisation.

Mr Chapman said that the NTU would not stipulate the method to be used, although he and Counsel for that body have promoted and continue to promote, withdrawal of this application and the development of a fresh application in accordance with the methodology determined by the Representative Body.  In regard to identification of the native title group, I point out that section 225(a) of the Native Title Act provides for the Court to determine 'who the persons, or each group of persons, holding the common or group rights comprising the native title are.'

Authorisation under section 251B(a) is discussed at point 9 below.

5.  The apical ancestors of the native title claim group are:

a) An Aboriginal named William Walker (Wollongolow) who was born at Shellharbour in 1815 (approximately two years before the first Land Grants were issued in the Illawarra area in January 1817) and died on the 24th January 1895 (as per original Death Certificate).

b) Maggie (or Margaret) Potter/Potta daughter of Potter who was born at La Perouse (Sydney) between 1820 and 1825 and died between 1880 and 1890.

Maggie was the daughter of an Aboriginal named Potter from La Perouse who was described in a May 1806 historical report as assisting ship wreck survivors and in 1822 was a member of a group of Aborigines who were consulted by members of the Philosophical Society about the landing at Botany Bay by James Cook in 1770.

The Death Certificate of William Walker (Wollongolow) does not identify the name of his wife, however, other records do.  For example the Death Certificate of his eldest daughter Lousia (married name Hoskins) shows that her parents were Walker William and Maggy maiden name unknown.  The Death Certificate of their daughter Esther Bell (nee Walker) records her parents names as William Walker and Margaret Potter.

Historical research shows that these apical ancestors were traditional members of the tribe that occupied the coastal areas of the Sydney, Illawarra and Shoalhaven regions, prior to colonization.  The name of the tribe has been identified as the 'coastal people' (Collins), and the Dharawal (Mathews).

Elouera (often spelt as Alowra, Allowra, Illowra, Illowree (etc), was identified by early Europeans, as the geographical name for an area that is within the boundaries of this native title claim.  David Allen who obtained a Land Grant in the area in 1817 named this Illowree Farm as noted by Colonial Botanist Allan Cunningham who visited the area in 1818 and recorded: '23rd October - we arrived at the farm about 3 pm .... This farm, for which the native name Illowree or Allowree is retained is the property of David Allan, Esquire.' (Organ. Michael: The Illawarra Aborigines 1770-1850;  Aboriginal Education Unit, Wollongong University, 1990, pp 104).

Historical evidence (including the particulars above), that has been prepared in support of this native title claim (NG6030/98), is also relevant to native title claim NG6006/98 (NC95/09).  This evidence has recently been provided to the Crown Solicitor's Office as an outcome of the first Mediation conference held in regard to NG6006/98 and is currently being assessed as to credible evidence standards of the State.” (emphasis in original)

23                  I do not think it necessary for me to analyse all of the material in the lengthy extract set out above.  Suffice it to say that if the meaning of the affidavit is that the three persons named in subpars 3.1(a), (b) and (c) together with all the current members of the Korewal, Elouera and Jerrungarugh Tribal Elders Corporation together with all future members of that corporation are the claimants and are to be substituted for “The Elouera People” (it is not clear to me whether the deponent intends that they be substituted or added), the identification of the other claimants is still inadequate.  One need only note by way of illustration the reference to "all future members of the body corporate" to appreciate the difficulty.

24                  Moreover, again I mention that no proposed amended form of application has been provided.

25                  I turn now to the other ground on which the Land Council relies, that is, a failure to identify the rights and interests claimed.  In the application, Mrs Ford identified the native title interests as follows:

“The connection between the claimants and the claimed area is that

1.         several hundred of them still live in the area and their ancestors have always done so as far as anyone can remember and as far back as the written records go, and indeed back into the distant past as indicated by archaeological sites and burial grounds (some up to 17,000 years old)

2.         various internment camps and cemeteries existed within this area and contain the bodies of immediate Koori ancestors, many being children and also mothers who died during incarceration during World War II.

3.         the tribe still meet regularly and fish, and use various parts of the area for recreation and to maintain a spiritual connection to the land.  The waters of Lake Illawarra and off the Five Islands (off Port Kembla) are particularly important in these respects.

Detailed family trees and all sorts of documentation can be produced showing continued occupation and usage of this area by the Koori peoples making this claim.  The tribe wish to preserve their lands and sites from destructive and unsympathetic activities and developments and exploitations and they wish to continue to perform and be able to carry out their traditional laws, customs and activities unhindered on the land and waters claimed.”

26                  The passage set out above does not purport to identify what are the rights and interests claimed.  One would expect the description to commence with an identification of rights or interests and, if appropriate, to identify the area the subject of the claim in respect of which those rights and interests are said to exist.  But the application does not do that.  I do not think that the reference to “meeting” and “fishing” can, for example, be read as a claim of a native title right of conducting regular meetings or ceremonies or fishing in respect of any particular part of the area or the whole of the area the subject of the application.  For this additional reason, in my view, the application did not comply with subs 61(2).

27                  Mr Lee, solicitor, has said both in writing and orally all that, I think, can be said in favour of the present application.  In particular, he submits, as a fallback position, that there should be an opportunity to amend.  However, there is no amendment actually proposed.  An amendment which merely took in what is contained in Mrs Ford's affidavit would also be doomed to fail for the reasons mentioned.  The Land Council has invited Mrs Ford on numerous occasions to amend but the invitation has never been taken up.  Of course, I appreciate that until Mr Lee came into the matter recently there may have been a problem in that Mrs Ford has not had the benefit of legal advice.  But still no amended application has been formulated.  There ought not to be leave to amend.  Rather, the application should be struck out.  This will not prevent a fresh application being made.

28                  The orders of the Court will be that the application be struck out under s 84C of the Native Title Act 1993 (Cth) and I will note that there will be no order as to costs.

Associate:

Dated:              21 December 2000