FEDERAL COURT OF AUSTRALIA
Dieri People v State of South Australia [2003] FCA 187
NATIVE TITLE – motion to dismiss application for native title determination – adequacy of description of persons on whose behalf application was made – applicant group a sub-group of larger native title claim group – consideration of authorisation by all persons in a native title claim group – whether leave to amend application should be given – whether application should be dismissed.
Native Title Act 1993 (Cth), ss 61, 62, 64, 66, 84C, 251B
Native Title Amendment Act 1998 (Cth), cl 21, cl 31
Native Title (Federal Court) Regulations 1998
Quall v Risk [2001] FCA 378 applied
Daniel for the Ngaluma People v Western Australia [1999] FCA 686 cited
Eora People – Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 cited
Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 cited
Daniel v State of Western Australia [2002] FCA 1147 cited
Holborow v State of Western Australia [2002] FCA 1428 cited
State of Queensland v Hutchison (2001) 108 FCR 575 referred to
Bruce v Oldhams Press Ltd [1936] 1 KB 697 cited
Mitanis v Pioneer Concrete (Vic) Pty Ltd (Goldberg J, 10 October 1997, unreported) cited
State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499 referred to
Dieri People v State of South Australia [2000] FCA 1327 considered
Moran v Minister of Land & Water Conservation for New South Wales [1999] FCA 1637 referred to
Ward v State of Western Australia (1998) 159 ALR 483 referred to
Risk v National Native Title Tribunal[2000] FCA 1589 referred to
Tilmouth v Northern Territory of Australia (2001) 109 FCR 240 cited
De Rose v State of South Australia [2002] FCA 1342 referred to
Lawson v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 referred to
Korewal People - Longbottom v NSW Minister for Land and Water Conservation (No.2) (2000) FCA 1237 followed
DIERI PEOPLE, ANGUS WARREN, LINDA WARREN, GRAHAM WARREN, RAELENE WARREN, GREGORY GRAHAM WARREN, PERCY TUCKER & RAYMOND WILLIAM BOLAND v STATE OF SOUTH AUSTRALIA & OTHERS
SG 66 OF 1998
MANSFIELD J
31 MARCH 2003
ADELAIDE
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IN THE FEDERAL COURT OF AUSTRALIA |
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SOUTH AUSTRALIA DISTRICT REGISTRY |
SG 66 OF 1998 |
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BETWEEN: |
DIERI PEOPLE, ANGUS WARREN, LINDA WARREN, GRAHAM WARREN, RAELENE WARREN, GREGORY GRAHAM WARREN, PERCY TUCKER & RAYMOND WILLIAM BOLAND APPLICANTS
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AND: |
STATE OF SOUTH AUSTRALIA & OTHERS RESPONDENTS
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MANSFIELD J |
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DATE OF ORDER: |
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WHERE MADE: |
ADELAIDE |
THE COURT ORDERS THAT:
1. The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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SOUTH AUSTRALIA DISTRICT REGISTRY |
SG 66 OF 1998 |
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BETWEEN: |
DIERI PEOPLE, ANGUS WARREN, LINDA WARREN, GRAHAM WARREN, RAELENE WARREN, GREGORY GRAHAM WARREN, PERCY TUCKER & RAYMOND WILLIAM BOLAND APPLICANTS
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AND: |
STATE OF SOUTH AUSTRALIA & OTHERS RESPONDENT
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JUDGE: |
MANSFIELD J |
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DATE: |
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PLACE: |
ADELAIDE |
REASONS FOR JUDGMENT
1 This is a motion to dismiss the application of the Dieri People for determination of native title in respect of an area of land in the north eastern part of South Australia (the native title determination application). It is not necessary to further describe the land. I shall call it “the claim area”. The motion is brought principally under s 84C(1) of the Native Title Act 1993 (Cth)(the NT Act) on the ground that the application itself does not comply with s 61(1) of the NT Act. Alternatively, it is contended that the native title determination application should be dismissed pursuant to O 20 r 2(1)(a) of the Federal Court Rules (the Rules) on the ground that it is foredoomed to fail.
the CONTEXT OF THE APPLICATION
2 There are a range of respondent parties to the native title determination application. The motion to dismiss it is brought by the respondents called the Edward Landers Dieri People. In a separate application under the NT Act brought on 27 August 1997, and amended by leave given on 4 November 1999, Edward Landers and others have sought a determination of native title under s 61(1) of the Act which, by order of the Court, is known as the Edward Landers Dieri Peoples Native Title Claim (the Edward Landers application). It seeks a determination of native title in respect of an area of land which is entirely within, and substantially occupies, the claim area. The Edward Landers application asserts that it is brought on behalf of the native title claim group comprising the people who hold in common the body of traditional law and custom governing the claim area and who are related by descent from the following apical ancestors:
1. Ruby Merrick (also known as Hannah or Anna) and Tim Maltalinha (also known as Tim Merrick),
2. Kuriputhanha (known as Queen Annie)
3. Mary Dixon
4. Bertha
5. Walter Kennedy, married to Thelma or Selma (a daughter of Ruby and Tim Merrick)
6. Florrie
The description of those apical ancestors is then further detailed in the Edward Landers application. The native title claim group as described in the Edward Landers application as amended then provides:
“The native title claim group however specifically excludes all of those people listed as being the applicant group in the particulars of claim filed in the Federal Court matter No SG 66 of 1999 being the Dieri People Angus Warren and Others, whilst those people’s names appear as members of that applicant group.”
3 Subject to that exclusion, it is not inaccurate to describe the Edward Landers application as being on behalf of the Dieri People.
4 Solicitors then acting for the present applicants in the native title determination application (who I shall call the Dieri Mitha People), who themselves are respondents in the Edwards Landers application, by motion dated 28 October 2002 applied for an order dismissing the Edward Landers application pursuant to s 84C(1) of the NT Act and under O 20 r 2(1)(a) of the Rules on precisely the same grounds as those of the present motion.
5 Section 84C of the Act was introduced as part of the extensive amendments to the NT Act through the Native Title Amendment Act 1998 (Cth) (the amending Act). It came into effect on 27 July 1998. Section 84C(1) provides:
“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.”
A note to this sub-section provides the main application may still be amended even after a strike out application is filed. Section 84C(2) obliges the Court to consider the application made under s 84C(1) before further proceedings take place in relation to the main application.
6 The transitional provisions in Part 5 of Sch 5 of the amending Act, cl 21, provide:
“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.”
Clause 31 of Part 9 of Sch 5 to the amending Act defines the “old Act” to mean the NT Act as in force immediately before the commencement of the amending Act; and the “new Act” to mean the NT Act as amended by the amending Act. I shall adopt that description of the old Act, and shall continue to call the NT Act as then amended the NT Act.
7 Under s 61(1) of the old Act, a table set out the applications that may be made under Div 1 of the old Act and the persons who may make them. The table included a native title determination application under s 13(1). It provided that the persons who may make such an application included:
“A person or persons claiming to hold the native title either alone or with others.”
8 Section 13(1) of the old Act provided for an application for a determination of native title to be made by application to the Registrar of the National Native Title Tribunal (the Tribunal). Section 61(2) and (3) of the old Act then provided:
“(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.”
Section 62 then specified other material necessary to accompany an application for a determination of native title. It required a supporting affidavit, information known to the applicant about interests in relation to any of the land or waters held by persons other than as native title holders, a description of the area over which the native title is claimed, and the name and address of the person who is to be taken to be the claimant.
9 Pursuant to the power contained in s 215 of the old Act, the National Native Title Tribunal Regulations were made on 24 December 1993 (the old Regulations). Paragraphs 4(1)(a), 5(1)(a) and 6(1)(a) required an application for a determination of native title to contain the information specified in Form 1 in Sch 1 to the Regulations. The form then required, inter alia, the identification of the name and address of the applicant, and:
“A.5 A description of the other persons with whom the applicant(s) claim(s) to hold title – if the application is made by (a) person(s) claiming to hold native title with others.”
10 It is against that statutory background that the native title determination application first made by the Dieri Mitha People is to be measured unless, by subsequent action, that application has been amended.
the description of the native title claim group
11 The native title determination claim application was lodged with the Registrar pursuant to s 13 of the old Act on 16 January 1995. It was considered by, and accepted by the Registrar or his delegate on 9 October 1995, pursuant to s 63 of the old Act. The old Act then required the Registrar to undertake mediation. Pursuant to s 72, a mediation conference was duly conducted, but it did not lead to any resolution of the claim so that the Tribunal itself could make a determination under the old Act. Consequently, in accordance with s 74 of the old Act, on 13 May 1998 the Registrar lodged the application with the Court for decision. The native title determination application is taken to have been made to the Court: items 5 and 6 of Sch 5 to the amending Act.
12 The native title determination application as made was expressed to be by eight named people. In response to the information required by par A5 of the form, it said:
“The application is made on behalf of the Dieri People.”
whether the native title determination application has been amended
13 On 2 June 1999 the Dieri Mitha People filed a document entitled “Particulars of Claim”. That is of course after the commencement of the amendments to the NT Act.
14 Section 61(1) provides relevantly that the persons who may make a native title determination application under s 13(1) of the Act are:
“A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group”.
Section 251B explains what it means for a person or persons to be authorised by all the persons in the native title claim group. Section 61(2) provides that the persons then making the application so authorised by a native title claim group are to be called the applicants, and none of the other members of the native title claim group are the applicants. Section 61(4) of the NT Act provides:
“A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:
(a) name the persons; or
(b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.”
Section 61(5) requires the application to be filed in the prescribed form, and to contain such information in relation to the matters sought to be determined as is prescribed in the form.
15 The Native Title (Federal Court) Regulations 1998 (the 1998 Regulations), which commenced on 30 September 1998, prescribed forms, inter alia, for the making of a claimant application for a determination of native title. The form which the 1998 Regulations prescribe requires, inter alia, the applicants to explain the capacity in which they claim to be entitled to make that application, e.g. as persons authorised by the native title claim group to make the native title determination pursuant to s 61(1) of the NT Act. It also requires the following to be included as the native title claim group:
“The names (including Aboriginal names) of the persons (the native title claim group) on whose behalf the application is made for a sufficiently clear description of the persons so that it can be ascertained whether any particular person is 1 of those persons.”
16 Schedule S to the form requires the application, if it is an amended application, to provide details of the difference between the initial or original application on the one hand and the amended application on the other, pursuant to s 64 of the NT Act. Section 64 provides that an application may be amended from time to time, but with some limitations upon the circumstances in which the amendment may be effected.
17 The Edward Landers Dieri people contend that the native title determination application has been amended after 27 July 1998 by two documents. The first is a document entitled “Particulars of Claim” dated 2 June 1999 referred to above. The second is a document entitled “Amended Particulars of Claim” dated 27 July 2001. They argue that, by reason of those amendments after the old Act, the native title determination application must be measured against the requirements of the NT Act, and not simply those of the old Act.
18 If the native title determination application has been amended by either or both of those documents, it has been held the compliance or otherwise of the native title determination application as amended is then to be assessed by reference to the relevant requirements of the NT Act: see per O’Loughlin J in Quall v Risk [2001] FCA 378 at [65]. That view is consistent with decisions requiring amendments for a native title determination application made after the amending Act to comply with the NT Act: Daniel for the Ngalama People v Western Australia [1999] FCA 686 per Nicholson J; Eora People – Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 at [22] per Madgwick J; Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 at [11] per Hely J. It is also consistent with s 66B of the NT Act. It was introduced by the amending Act. It provides for the replacement of applicants in native title determination applications, having regard to the authorisation prescribed by s 251B, whether or not the native title determination application was made before or after the amending Act: Daniel v Western Australia [2002] FCA 1147 (Daniel); Holborow v State of Western Australia [2002] FCA 1428. Section 251B requires the authorisation to be given by all the persons in a native title claim group in the manner provided for.
19 The “Particulars of Claim” dated 2 June 1999 are expressed as being made on behalf of the Dieri people. The named applicants are seven of the previously named eight applicants. They are defined as “the applicant group”. They are further defined or described in relation to their family, kinship and language as Dieri people and in certain other ways. The description of members of the applicant group by reference to family, kinship and language identifies one of the applicants as being a direct descendant of the union of Tim Merrick and Anna, both Dieri people. Another of the applicant group Linda Warren describes her lineal ancestors as including Thelma Merrick and Walter Kennedy (Walter Kennedy is a nominated apical ancestor of the Edward Landers Group) and in turn through Thelma Merrick from Tim Merrick and Anna (both of whom are identified as apical ancestors by the Edward Landers Dieri people). Another applicant, Raelene Warren, identifies her lineal ancestors on one side as ultimately coming from Queen Annie (another apical ancestor identified by the Edward Landers Dieri people) and on another side from a woman named Bertha (also identified as an apical ancestor by the Edward Landers Dieri people). A further named applicant, Raymond Bolan, also identifies his apical ancestors as including persons who can trace back to Bertha, and to Tim Merrick and Anna. Consequently, four of the seven apical ancestors identified by the Edward Landers Dieri people in the Edward Landers application are described as linear ancestors of the nominated applicants in the native title determination application of the Dieri Mitha people.
20 Paragraph 5 of the Particulars of Claim says that each of the applicants are members of the Dieri Mitha Council Incorporated, an association representing the interests of the Dieri people, and one open to all people of Dieri descent including by family, kinship and initiation. It then says, apparently in response to s 61(4) of the NT Act, that certain other named persons “are persons on behalf of whom the application for determination of native title is made”. It names 92 persons. They are defined as meaning “the native title group”. They are described as persons who are descendants of the Dieri people and who share a common genealogy with the seven applicants. It also names a further 34 persons described as persons having “rights and interests” in the claim area pursuant to Dieri law and customs and a further 13 persons who are described as members of the native title claim group by adoption in accordance with relevant traditional laws and customs, including by initiation. The Particulars of Claim then proceeds to describe the native title rights and interests claimed as being those possessed “under traditional laws and customs observed by the applicants and other persons with whom the applicants claim to hold native title” and describes those rights.
21 It is by reference to those particulars (assuming that the Particulars of Claim constitute an amended application for determination of native title) that the Court is to determine whether the application satisfies s 61(1) of the Act. If it does not comply with s 61, it may be struck out.
22 The Dieri Mitha people through the seven named applicants dispute that the Particulars of Claim in fact amended the original native title determination application. The particulars of Claim were filed in Court a little belatedly following directions given on 14 December 1998 that the Dieri Mitha applicants provide information so as to comply with s 61 and other sections of the NT Act (claim area, details of tenure, and particulars of claim).
23 Paragraph 6 of the order made on 14 December 1998 required the Dieri Mitha applicants by 31 May 1999 to file and serve a document called “Particulars of Claim”. This was to contain all particulars, inter alia, of the applicant group (being a description of the persons on behalf of whom the native title determination application is made) and including a list of all identified persons in the applicant group, and those ancestors who are claimed to have held traditional interest in the land or waters at the time of sovereignty. It also directed the particulars to include details of the rights and interests which are claimed, the traditional laws or customs under which each of the rights or interests is said to be possessed, and the facts relied upon to prove contemporary connection with the claim area. The relevant particulars directed are those in par 6.1 of the orders made on 14 December 1998 under the heading “Applicant Group”. They required a description of the persons on behalf of whom the native title determination application is made (applicant group) including:
· a composition of the group by reference to family, kinship, language etc.;
· any relevant sub-groups;
· the criteria for membership of the applicant group and any relevant subgroups;
· a list of all identified persons in the applicant group including in respect of each such a person personal details and genealogy;
· identification of the ancestors who are claimed to have held traditional interests in the land or waters at the time of sovereignty.
24 It is apparent that the directions then given did not reflect precisely the form of application specified under s 61 of the NT Act and the requirements of the 1998 Regulations. That is no doubt because the directions reflected the particulars then sought. It is also apparent that those directions were not intended to have introduced, by the Particulars of Claim, a document which supplanted the application itself. They were intended, according to their terms, to provide particulars of the claim. They were directed to be given under the heading “Particulars of the Claim”.
25 I do not consider that the Particulars of Claim is in substitution for the native title determination application, or an amendment to it. Although it has a series of numbered paragraphs, they do not accord with or follow the form prescribed in the 1998 Regulations. It does state it is an application for determination of native title, and it does not purport to refer to authorisation as required by Part A Section 2 of Form 1. It does not purport to describe the native title claim group in accordance with s 61. The schedules in the form deal with the following topics:
Native title claim group
Identification of boundaries
Maps
Searches
Description of native title rights and interests
General description of native title rights and interests claimed
Activities
Details of any other applications
Details of any s 29 notices
Draft order
Native title representative bodies
Tenure and land use issues
Traditional physical connection
Prevention of access
Membership of any other native title groups
Claims for exclusive possession of off-shore places
Claims to any resources owned by the Crown
Certificate of authorisation
Amended applications
Any other relevant information
26 Each of those headings has a statutory reference point. The Particulars of Claim does not follow that sequence, or purport to present all that information. Nor does it have the details for filing and service required by Part B of the Schedule. It is not supported by any affidavits required by the Form or by s 62.
27 The numbered paragraphs of the Particulars of Claim comprise the following:
· The recital of the application for determination of native title;
· The statement that the application is made “on behalf of the Dieri people”;
· Details of the seven members of the applicant group;
· Details of the family kinship etc. of each of the seven members of the applicant group (including identifying the ancestral lines referred to);
· Details of the Dieri Mitha Council Incorporated and how it may be accessed; and
· The list of the names of persons comprising “the native title group” as described and the claim that they are descendants of the Dieri people who held traditional interests in the land and waters at the time of sovereignty and share a common genealogy with the applicant group, together with the named other persons referred to.
28 It then asserts that the ancestors are those who held traditional interest in the land or waters and were members of the Dieri tribe at the time of sovereignty, but provides no further detail other than that proclaimed area was occupied by the Dieri tribe at that time.
29 There are then paragraphs setting out the native title rights and interests claimed; the traditional laws and customs by virtue of which the Dieri people claim those native title rights and interests; the facts relied upon to prove contemporary connection with the land; details of some sights and dreaming tracks; details of the facts to be relied upon by the applicants to prove their historical connection with the land since sovereignty; and the applicants’ descent, including direct lineal descendancy and descendancy as a result of marriage with direct lineal descendancy, initiation, or other membership of the Dieri tribe in accordance with traditional law and custom.
30 It then seeks a determination of native title rights in favour of the Dieri people to the exclusion of others, and it identifies those areas excluded from the application area in a generic sense.
31 In addition, I observe that no party suggested that the Particulars of Claim generated the obligation to send to the Native Title Registrar a copy of the Particulars of Claim as, or as part of, an amended application by virtue of s 64(4) of the NT Act, or that the Native Title Registrar should give notice under s 66A of the NT Act in relation to the Particulars of Claim, or that the Native Title Registrar re-address the issue of registration under s 190(3) of the NT Act. The procedure for amendment of a native title determination application available under ss 64 or 66B, and under O 78 r 7 of the Rules was not adopted. I refer also to the observations of Kiefel J in State of Queensland v Hutchison (2001) 108 FCR 575 at [21].
32 For those reasons, I do not consider the Particulars of Claim constituted an amendment to the native title determination application. That is not to say, of course, that the Particulars of Claim have no significance. They fill in the claim of the Dieri Mitha people, so that the respondents know the case they have to meet and to enable the respondents to prepare for trial: Bruce v Oldhams Press Ltd [1936] 1 KB 697 at 712-713, Mitanis v Pioneer Concrete (Vic) Pty Ltd (Goldberg J, 10 October 1997, unreported). The line between pleading material facts, and particulars, is often hard to draw and in modern pleading the Court is reluctant to draw too sharp a distinction between material facts and particulars when determining whether a pleading satisfies the requirements of the Rules: see e.g. per Drummond J in State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499. However, where the Court is faced with prescriptive requirements such as those in s 61 of the NT Act, and the Dieri Mitha people have not claimed that the Particulars of Claim were, on their part, an attempt to amend the native title determination application, I do not consider the Particulars of Claim should be treated as amending it.
33 I turn to consider the second of the two documents which the Edward Landers Dieri people contend is an amendment to the native title determination application.
34 By motion dated 24 May 2002 the State of South Australia, sought an order that the Dieri Mitha people by the named applicants provide the information and particulars requested by them in a document entitled “Request for Further Information and Particulars”. The Request for Further Information and Particulars is a lengthy document. It used the expression “Claimant Group” to include the seven named applicants, the 92 further named members defined as the native title group, and the 13 further persons described as members of the native title group having been so adopted by initiation or in accordance with relevant traditional laws and customs. It explained that if the 34 named persons who were said to have “rights and interests in the claimed area pursuant to Dieri law and customs” were also persons on whose behalf native title was claimed, they too were to be included in the “Claimant Group”.
35 The Request included a request for compliance with the order made on 14 December 1998 because no or insufficient details were provided regarding family, kinship or language of each of the named applicants or each member of the Claimant Group. It asserted that the Particulars of Claim contained no details of sub-groups, and insufficient detail of the criteria for membership of the Claimant Group or any relevant sub-group. The Request complained that no personal details of the members of the native title claim group, or how they were said to form part of the claim group, and provided no genealogies of those persons had been provided. Under the heading “Membership of the Dieri People” the Request sought full particulars of how membership of the Dieri people was acquired, including the meaning of “kinship” and “marriage”, and full particulars of “the Dieri people who held traditional interests in the land and waters at the time of sovereignty”, including their identities, their holdings, and the means of transmission of those traditional interests. It sought full genealogies of the claimed group and of the relationship between the applicant group and the native title claim group; full particulars, inter alia, of any persons (other than the claimant group) with whom the applicants claimed to hold native title, and the traditional laws and customs governing the rights and interests of those persons; and details of lineal descendancy and of the traditional laws and customs which govern the constitution and membership of the Dieri tribe.
36 The motion was resisted. On 15 September 2000 I gave judgment on the motion: Dieri People v State of South Australia [2000] FCA 1327. It is apparent in that decision that the focus of the submissions was not the adequacy of the native title determination application. The objections to responding to the Request were that it sought the disclosure of evidence, that the information had been provided through an affidavit of Ian John Tranthen sworn on 14 December 1999 or exhibits to that affidavit, and that in part the information should not be produced because it was confidential. It was also argued that in part the Request went beyond the particulars ordered on 14 December 1998. There was no focus at all on whether the Particulars of Claim satisfied the requirements of s 61. There was no suggestion that it stood in lieu of the native title determination application. As I identified at [13] the issue was whether the Particulars of Claim satisfied the order made on 14 December 1998, either alone or in conjunction with the further information.
37 I did not consider that the Tranthen affidavit was a sufficient or satisfactory means of complying with the order. In a number of respects I determined that the Particulars of Claim did not comply with the order of 14 December 1998, and that further particulars should be given, including particulars of par 6.1 of the order of 14 December 1998 concerning the applicant group. There was no focus on whether the Particulars of Claim either alone or with the original native title determination application satisfied the requirements of an application specified under s 61 of the NT Act. I determined that the Particulars of Claim and the further information provided by the applicants did not adequately provide detail of the composition of the applicant group, the existence and composition of any sub-group, or details of members of the applicant group (using the expression “applicant group” as defined in the Particulars of Claim rather than by reference to the native title claim group as that expression is used in s 61 of the NT Act).
38 On 25 October 2000 I made an order that the applicants file and serve a document or documents to be called “Further Particulars of Claim” complying, inter alia, with numbered identified paragraphs of the order of 14 December 1998 by providing the relevant further information and particulars requested in the Request.
39 On 27 July 2001 the applicants filed a document entitled “Amended Particulars of Claim”, expressed to be pursuant to the order made on 25 October 2000.
40 The Further Particulars of Claim also does not purport to follow Form 1 of the 1998 Regulations, and in particular Part A containing details of the authorisation. It does not follow the schedules specified in the form, and so does not describe the names of the persons (the native title claim group) on whose behalf the application is made or a clear description of those persons, so that it can be ascertained whether any particular person is one of those persons. It asserts in par 2 that the application is made on behalf of the Dieri people and lists the same seven applicants. It then says that, in addition to those applicants, the persons referred to in par 5 are persons on behalf of whom the application is made. They are then called the applicant group.
41 Paragraph 5, so far as relevant, reads as follows:
“The composition of the applicant group is comprised in the Schedule A annexed to these particulars.
5.1 The applicant group comprised persons who attained Dieri status in the following manner:
5.2 through direct ancestry;
5.3 through adoption into the Dieri tribe sometimes as a result of marriage to a Dieri person and through acceptance of the Dieri laws and customs;
5.4 through initiations into the Dieri tribe;
5.5 the basis of each individual’s status as a Dieri is itemised in Schedule A …”
42 Schedule A comprises a list with some details of 87 persons.
43 Paragraph 6 of the Further Particulars of Claim says that the ancestors who held traditional interests in the land and waters at the time of sovereignty comprised the Dieri tribe, and which include a woman known as Queen Annie (Kuriputhana) from whom many of the applicant group have a biological connection. It also asserts that other such known Dieri persons recorded in the historical literature include Dieri tribal chiefs Jipalma and Tjampina and Pinabusthima (known as Pompey). It also refers to a list of persons, 115 in number, compiled in 1904 of residents at the Kilpalpaninna Mission Station referred in the Tranthen affidavit.
44 I consider that the Further Particulars of Claim purports exhaustively to enumerate the composition of the Dieri Mitha people by reference to Schedule A. That is its plain meaning. But that is not to accept that the Further Particulars of Claim amount to an amendment of the native title determination application or a substitution for it by amendment.
45 Essentially for the same reasons as I have concluded that the Particulars of Claim did not amount to an amendment to the native title determination application, I have reached the view that the Further Particulars of Claim are themselves not an amendment of the native title determination application. Indeed, as the background to the Further Particulars of Claim shows, that document is in reality a further document filed to comply with the order made on 14 December 1998.
46 I will therefore address the present motion by reference to the native title determination application as originally filed, and the requirements for a valid application prescribed in the old Act.
47 However, lest I am wrong about the status of the Particulars of Claim and the Further Particulars of Claim, so that they should be treated as amendments to the native title determination application, I propose to determine also whether the native title determination application (assuming it to have been amended by those documents) meets the requirements for a valid application prescribed in the NT Act.
the evidence on the motion
48 The Edward Landers Dieri people on the motion relied upon the affidavit of Steven Kenny affirmed on 8 July 2002 only to the extent to which it exhibited a report of Dr Deane Fergie of July 2002 entitled “Analysis of Dieri Group Composition” with reference to the Dieri Mitha and Ngayana Dieri Karna native title claim groups. The reference to the Ngayana Dieri Karna group is to the Edward Landers Dieri people. Within that document, reference was made only to limited material. Reference was made to pars 18-19 in the section of the report dealing with the informants upon which the genealogical information was, in part, based. Reference was also made to pars 28-29 (which did little more than identify the description of the native title claim group in the Edward Landers’ application). Reference was also made to par 91 referring to the apical ancestors known as Tim and Anna Merrick, and to a document entitled Figure 3, as a schematic representation only of descendants and members of the two claim groups. It shows some connections between all the apical ancestors in the Edward Landers application, but only a selection of their descendants. Figure 3 was also tendered together with the document which comprises Appendix 3, and which is detailed genealogical research, and the Dieri data base “Genealogy Reports” of the descendants of named apical ancestors in Schedule A of the Edward Landers Dieri people application.
49 Dr Fergie’s evidence, introduced through the affidavit of Mr Kenny, was that each of the native title determination application and the Edward Landers application was made on behalf of the one native title claim group, namely the Dieri people. Indeed, the Edward Landers application is explicitly in those terms, save for it expressly excluding the Dieri Mitha people as the native title claim group in the native title determination application. I was told by senior counsel for the Edward Landers Dieri people that it was expressed that way for the pragmatic reason of avoiding any overlapping of claim groups, and to avoid the impediment to its registration which s 190C(3) might otherwise have produced. Ms Raelene Warren, one of the applicants in the native title determination application, who appeared for those applicants, did not gainsay that position. Dr Fergie was cross-examined, but her view that each application was in essence for all the Dieri people was not challenged.
50 The cross-examination of Dr Fergie was largely directed to demonstrating that Dr Fergie had not properly consulted with representatives of the Dieri Mitha people in completing her genealogies, and that in some respects her genealogies may be erroneous either by excluding people who should be included, or by including people who should be excluded. The suggested errors did not concern each of the seven apical ancestors identified by Dr Fergie.
51 Figure 3 identifies seven apical Dieri ancestors. They are the persons referred to in [2] above. The document indicates that certain of the present applicants on the native title determination application have ancestors from four of those apical ancestors. That is consistent with the Particulars of Claim which, as noted, also referred to apical ancestors beyond Queen Annie. The Particulars of Claim indicate that the present applicants acknowledge apical ancestors who are Walter Kennedy, Anna and Tim Merrick, Bertha and Queen Annie. Figure 3 also shows that of the present persons named on the native title determination application as Dieri people, their apical ancestors would extend to Queen Annie, Mary Dixon, Bertha, Walter Kennedy and Anna and Tim Merrick, and possibly to the Sam Dintibana group. It also indicates that not all of the present applicants and in particular Linda Warren and Angus Warren (the latter only apparently being Dieri by marriage) have an apical ancestry traceable back only to Queen Annie (as asserted on the native title determination application).
52 The other evidence was from the applicants. It was not the subject of cross-examination. Raelene Warren’s affidavit of 28 November 2002 explains her Dieri ancestry and knowledge. There is no issue about it. She explains how the native title determination application came to be made. The main meeting at which it was resolved to proceed with the present application was held on 9 and 10 June 1994 at Marree, following an extensive public advertising campaign to inform those eligible that they could attend, and a process of informal consultations and invitations to Dieri people. She deposes to some persons who are now part of the Edward Landers Dieri people being invited, but declining, to attend. Some did attend. The meeting was open to all members of the Dieri community. A resolution was passed at that meeting to proceed with the native title determination application and to engage solicitors to do so. On 23 and 24 June 1994 at Marree there was a meeting to approve the draft application. On 10 November and 17 November 1994 at Port Augusta, the home of Angus Warren, authorisation was given that the application be made in the name of the named applicants. The affidavit evidence continues:
“In conjunction with those meetings there were traditional tribal meetings attended by initiated persons and elders at which each stage of the application for native title including the boundaries to be claimed were authorised under the traditional laws and customs of the Dieri by a process of traditional decision making.”
It therefore appears that decisions were made according to traditional laws and customs which were made on different occasions from meetings held on the named dates. The affidavit of Angus Warren is to the same general effect.
53 Ms Warren, in the course of her contentions in opposition to the motion, acknowledged the following:
. the Dieri Mitha people accept that the native title determination application is made for the Dieri people;
. the Dieri Mitha people agree that the Dieri people comprise a greater number of persons than the 87 persons named in the Further Particulars of Claim, and that it was not intended by listing those 87 persons to comprehensively and exclusively identify the native title claim group.
consideration
(a) the Particulars of Claim and the Further Particulars of Claim
54 Section 61(1) requires that the native title determination application be brought by persons authorised by all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed. Section 61(4) requires the native title determination application to name the persons, or otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular persons is one of the persons, who comprise the native title claim group. The authorisation to which s 61(1) refers must be in accordance with s 251B of the NT Act, namely authorisation by all the persons in a native title claim group.
55 As French J said in Daniel at[11], it is of central importance to the conduct of native title determination applications and the exercise of the rights that flow from their registration, that those who bring such applications and who exercise such rights on behalf of a group of persons claiming to hold native title rights have the authority of the group to do so. See also per Wilcox J in Moran v Minister of Land & Water Conservation for New South Wales [1999] FCA 1637 at [48]. In Quall v Risk O’Loughlin J at [67] described the proper identification of the native title claim group as going to the heart of a native title determination application. I think each of those observations, with which I respectfully agree, is warranted by the clear words of s 61(1) and s 61(4) of the NT Act. In my view, the provisions of the NT Act do not permit the making of a claim by a native title determination application by a subgroup of the native title claim group, or the grant of native title to a subgroup of the real native title claim group: see Ward v State of Western Australia (1998) 159 ALR 483 at 541, Risk v National Native Title Tribunal[2000] FCA 1589 at [60], Tilmouth v Northern Territory of Australia (2001) 109 FCR 240.
56 In my judgment, the native title determination application (treating it as amended by the Particulars of Claim and by the Further Particulars of Claim), does not satisfy the requirements of s 61(1) and s 61(4) of the NT Act. The native title claim group, that is the persons on whose behalf a grant of native title should be made if the native title determination application is successful, is the community of persons comprising the Dieri people. The acknowledgment of Ms Warren on behalf of the applicants in the native title determination application, and the evidence, indicate that the native title claim group as described in the native title determination application is not the same group of persons. It is a smaller group of some Dieri people whose application claims to be made on behalf of some Dieri people only. The smaller group, as expressed, is not the group of people who should exclusively enjoy the communal native title, yet that is the purport of the native title determination application. It is, I find, not the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprised in the particular native title claimed. In addition, as it is apparent that the authorisation granted to the present seven applicants was granted by a group of persons who are a smaller group than, albeit part of, the native title claim group, the necessary authorisation prescribed by s 251B of the NT Act was not given.
57 It is not necessary, in the circumstances, to address whether in other respects the authorisation granted complied with s 251B of the NT Act. It requires all the persons in the native title claim group to have authorised the particular applicants to have made the claim. The requirement was explained by O’Loughlin J in De Rose v State of South Australia [2002] FCA 1342 at [928] and by Stone J in Lawson v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517. Section 251B provides for two mutually exclusive forms of authorisation. First, where there is a process of decision-making under traditional laws and customs of the native title claim group for authorising such things, the persons in that group must have authorised the applicants to bring the claim in accordance with that process. The alternative, available only where there is no such process, is authorisation by an agreed and adopted process of decision-making by persons in the native title claim group. The nature of the authorisation in this instance, as described in the affidavits of Raelene Warren and Angus Warren, and set out briefly in [52] above, does not clearly evidence that the first process of authorisation was adopted and does not set out to establish that the alternative process of authorisation was available, and adopted, because the primary process of authorisation did not exist.
58 I also am not satisfied that the native title determination application complies with s 61(4). The native title claim group is specified in the Particulars of Claim and then in the Further Particulars of Claim. Ms Warren accepts it does not name all the persons in the native title claim group. She said it did not intend to do so. It provides no other description by which the persons truly in the native title claim group can be sufficiently ascertained so that the question whether any particular person is one of the persons in the native title claim group can be answered. It does not identify any traditional law and custom by which the descendants of certain apical ancestors are excluded, if indeed it was intended that they should be excluded.
(b) the native title determination application
59 In the light of my conclusion that the native title determination application has not been amended, its status must be determined by reference to the provisions in the old Act.
60 In my view, the native title determination application does not satisfy the requirements of reg 5(1)(a) of the old Regulations. Section 61(2) of the old Act required it to contain such prescribed information. I have set out in [8] above the terms of the requirements, and the information given. I do not consider that the statement that the application is made “on behalf of the Dieri people” is a sufficient description of the persons other than the applicants who hold the claimed native title. I share the view of Madgwick J in Korewal People - Longbottom v NSW Minister for Land and Water Conservation (No.2) [2000] FCA 1237 at [11] that there must be some actual description or means of identification of who the other people are. In that case, his Honour found that the expression “The Korewal Aboriginal People” did not alone comply with the requirements of reg 5(1)(a) of the old Regulations.
61 I think the same process of reasoning, and the same conclusion, applies in relation to the native title determination application. I have considered whether there is other material in the native title amendment application which might provide information relevant to compliance with reg 5(1)(a). Although there is elsewhere a description of the physical and spiritual connection between the claimant groups and the claim area, it is not in terms which indicate whether such matters go to identifying the native title claim group (e.g. residence in the claim area) and it does not advance the identification of how any particular person can be seen to be a Dieri person.
The order
62 I have concluded that the native title determination application did not, and does not, comply with the requirements of s 61 of the NT Act or s 61 of the old Act.
63 I accept, as Ms Warren said during contentions, the native title determination application was made to secure native title for all the Dieri people. But in its terms it does not seek to do so. It is apparent that there is a different group of persons, the Edward Landers Dieri people, who similarly are apparently seeking the determination of native title in respect of a large part of the claim area. I do not have any confidence that adjourning the application to give the present applicants an opportunity to amend it will result in it being able to proceed in compliance with ss 61 and 62 of the NT Act.
64 Any amendment would attract the provisions of the NT Act, including the authorisation procedure prescribed by s 251B. At present, the picture is one of conflict between two groups of persons as to who are entitled to represent the Dieri people. If there is a means by which, according to traditional laws and customs of all the Dieri people, the issue of authorisation can be resolved, that process can be adopted. It can be adopted in any fresh application made under the NT Act for determination of native title over the claim area.
65 At present, in the light of the difficulties experienced by the present applicants thus far, as evidenced by the terms of the Particulars of Claim and by the terms of the Further Particulars of Claim, and having regard to Ms Warren’s acknowledgments about the true nature of the native title claim group, in my view the appropriate order is to dismiss the application. As I have indicated, that does not prevent a fresh application for determination of native title in respect of the claim area being made by persons authorised under s 251B of the NT Act in respect of the claim area.
66 I order that the native title determination application be dismissed.
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I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. |
Associate:
Dated: 17 March 2003
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Counsel for the Applicants: |
The applicants, the Dieri People and others appeared in person, by Ms R Warren and then with Mr R Boland |
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Counsel for the Edward Landers Dieri people: |
Mr S Tilmouth QC with Mr S Kenny |
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Solicitor for the Edward Landers Dieri people: |
Camatta Lempens Pty Ltd |
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Counsel for the State of South Australia: |
Mrs G Brown |
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Solicitor for the State of South Australia: |
The Crown Solicitor for South Australia |
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Counsel for the Cooper Basin Oil and Gas Producers |
Dr M Perry |
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Solicitor for the Cooper Basin Oil and Gas Producers |
Kelly & Co. |
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Counsel for the Pastoralists: |
Mr TJ Mellor |
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Solicitors for the Pastoralists: |
Mellor Olsson |
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Counsel for the Aboriginal Legal Rights Movement: |
Ms G Cotton |
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Solicitor for the Aboriginal Legal Rights Movement: |
Aboriginal Legal Rights Movement |
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Counsel for Western Mining Corporation |
Ms A Maddern |
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Solicitor for Western Mining Corporation: |
WMC Resources Ltd |
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Counsel for Lorraine Susan Merrick: |
Mr A Potter |
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Solicitor for Lorraine Susan Merrick: |
Adrian Potter Solicitor |
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Date of Hearing: |
30 January 2003 |
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Date of Judgment: |
31 March 2003 |
