FEDERAL COURT OF AUSTRALIA

Thomas v State of South Australia [2004] FCA 951

NATIVE TITLE – application to strike out native title claim under s 84C Native Title Act 1993 (Cth) – principles applicable on strike out application for lack of authorisation under s 251B(a) Native Title Act 1993 (Cth)

Native Title Act 1993 (Cth) ss 61, 84C, 251B

Williams v Grant [2004] FCAFC 178 applied

Grant v Minister for Land & Water Conservation for the State of New South Wales [2003] FCA 621 cited

Quall v Risk [2001] FCA 378 cited

Moran v Minister for Land and Water Conservation for NSW [1999] FCA 1637 cited

Edward Landers v State of South Australia [2003] FCA 264 cited

Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 790 cited

Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 cited

Branfield v Wharton [2004] FCAFC 138 cited

Wilkes v State of Western Australia [2003] FCA 1140 cited

Bodney v State of Western Australia [2003] FCA 890 cited

Booth v The State of Queensland [2003] FCA 418 cited

Simms v Minister for Land & Water Conservation [2002] 193 ALR 257 cited

Webster v Lampard (1993) 177 CLR 598 applied

Johnson, in the matter of Lawson v Lawson [2001] FCA 894 cited

Daniel v State of Western Australia (2003) 194 ALR 278; [2002] FCA 1147 cited

ROGER JAMES THOMAS & DANIEL ERNEST CLIFTON ON BEHALF OF THE KOKATHA PEOPLE v STATE OF SOUTH AUSTRALIA & OTHERS

SG 6013 of 1998

MANSFIELD J

22 JULY 2004

ADELAIDE

THE COURT ORDERS THAT:

1.         The strike out application of 24 November 2003 be dismissed.

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

REASONS FOR JUDGMENT

1                     Ningal Richard Reid (Mr Reid) by notice of motion dated 24 November 2003 seeks to strike out this application under s 84C of the Native Title Act 1993 (Cth) (the Act).  Section 84C provides:

‘(1)

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.

(2)

The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1).

(3)

The Registrar of the Court must advise the Native Title Registrar of the making of any application under subsection (1) and of the outcome of the application.

 (4)

This section does not prevent the making of any other application to strike out the main application.’

2                     The principles upon which such an application might be struck out under s 84C were recently addressed by the Full Court in Williams v Grant [2004] FCAFC 178.  In that case, Lander J (with whom North and Dowsett JJ agreed) said at [48]:

‘However, an application under s 84C, if successful, has the very serious consequence that the native title application is struck out.  Such a result is akin to a court proceeding being summarily dismissed, or at least dismissed before any hearing on the merits.  No court proceeding is summarily dismissed except in a very clear case: Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129.’

His Honour at [49] went on to say that the power under s 84C ‘should be exercised sparingly and with caution, and only when the Court is satisfied that the moving party has made out a clear case that the applicant has not complied with the relevant section and cannot, by amending the application, comply.’

3                     The primary application is for the determination of native title.  It is brought by Roger Thomas and Daniel Clifton (the claimants) on behalf of a native title claim group called the Kokatha People (the native title claim group).  It is in respect of an extensive area north of Port Augusta, comprising some 34,230 square kilometres with the eastern side of Lake Torrens forming much, but not all of its eastern boundary.  It was instituted on 30 September 1998, the date upon which significant provisions of the Act were amended by the Native Title Amendment Act 1998 (Cth) (the amending Act).  The primary application was then amended on 30 March 1999.

4                     The parties are agreed that the motion should be determined by reference to the primary application as amended (which I shall call the native title claim), and that the Act as amended by the amending Act applied to the native title claim.  Consequently, s 61 of the Act required the claimants to have been authorised by the native title claim group to bring the native title claim.  Authorisation is addressed in s 251B of the Act.  It provides:

‘For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)              where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)       where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.’

It is common ground that any authorisation was given under s 251B(a) of the Act.

5                     Mr Reid’s motion therefore requires him to show very clearly that the claimants were not authorised under s 251B(a) of the Act by the native title claim group to bring the native title claim on their behalf, so that the native title claim does not comply with the requirements of s 61 of the Act.  It would follow then that the claim should be struck out pursuant to s 84C of the Act.

6                     The native title claim asserts as to authorisation the following:

‘The applicants have authority to make this application on behalf of all persons in the native title claim group by virtue of resolutions passed at a meeting of the native title claim group on 30^th and 31^st January 1999, which meeting was convened by the Aboriginal Legal Rights Movement Inc., the native title representative body for the area covered by the application, for the purpose of fulfilling its functions under s 202(4)(d) of the Native Title Act.’

7                     As required by s 62(1) of the Act, each of the claimants by affidavit deposed to having been authorised by the native title claim group to make the native title claim and to deal with all matters arising in relation to it on behalf of the native title claim group.  They identified in their affidavit a resolution of the native title claim group made on 30 and 31 January 1999.

8                     The amendment of the application was made pursuant to an agreement at the meeting on 30 and 31 January 1999 (the Stirling North meeting) at which it was apparently resolved to amalgamate two applications for the determination of native title.  The resolution at that meeting included that the claimants should have authority to make the then proposed amended application (the native title claim) and deal with matters arising in relation to it on behalf of all other persons in the native title claim group.

9                     Subsequently, on 9 April 1999 the Aboriginal Legal Rights Movement Inc (ALRM), (the relevant representative Aboriginal and Torres Strait Islander Body) certified the native title claim under the then s 202(4)(d) of the Act on the basis that it held the opinion that the requirements of the then s 202(5)(a) and (b) of the Act have been satisfied.  At the time, s 202(5) obliged a representative body not to certify under s 202(4)(d) unless it held the opinion that the applicants/claimants had the authority to make the application and to deal with matters in relation to it on behalf of all other persons in the native title claim group.  Section 202 was amended to provide for such certification as part of the amending Act, in that case taking effect from 30 October 1998:  see Sch 3 Pt 1 cl 6 of the amending Act, but was then repealed on 1 July 2000 by the same amending Act:  see Sch 3 Pt 2 cl 25.  The amendments thus took effect at different times.  In addition, a more sophisticated structure for the recognition of representative bodies and of their functions was enacted by the amending Act and came into force on 30 October 1998:  see Sch 3 Pt 1 cl 11.  The point is simply that, at the relevant time, the ALRM, as the representative body, certified in accordance with then s 202(4)(b) because it held the opinion that the claimants had authority to make the application on behalf of the native title claim group.  The certification included reasons for that opinion.  It described the Stirling North meeting, and the means by which notification of it was given.  There were a series of public notices of the meeting.  There were about 150 persons present, who ‘were representative of the key family groups that make up the claim group’.  The ALRM engaged an anthropologist Ms Hodgson who provided that description of the attendees.  She based her knowledge of the claim group on her own inquiries of a number of members of the claim group, consultation with researchers engaged by the claim group, historical and genealogical material, attendance lists at previous meetings and archival verification of those persons understood to comprise the native title claim group.

10                  That material does not necessarily suggest the Stirling North meeting adopted a process of traditional law and custom decision-making.  It may have done so.  However, the certification of the ALRM included the following:

‘It should be noted that although the issue of authority was formalised by way of resolutions, authorisation in ALRM’s opinion was given in accordance with par 251B(a) NTA.’

11                  The evidence adduced by the ALRM in opposition to the present application includes an affidavit of Mr Agius, the Executive Officer of ALRM.  He confirms in an assertive way, rather than a descriptive way, that the native title claim group authorised the claimants to bring the native title claim.  He too, relies in part upon Ms Hodgson’s views, and exhibits a copy of a ‘confidential draft report’ provided by her which includes a description of the Stirling North meeting, and the following comment:

‘The constitution and carriage of the Community Meeting held in January 1999 where applicants were authorised to proceed reflects traditional decision making practices.’

The document is edited and it is not possible to give much weight to it without knowing what the deletions are.  It, too, is assertive rather than descriptive.  However, Mr Agius independently asserts that ‘the constitution and carriage of the community meeting was reflective of traditional decision making practices’.  The claimant Roger Thomas has deposed to having been present at the Stirling North meeting.  He says that the resolution authorising the claimants to bring the native title claim as proposed to be amended was passed at that meeting without dissent.  He says that because there were in attendance at the Stirling North meeting ‘Kokatha law men’ included in the 150 Kokatha people, as well as law men from remote communities with responsibility for Kokatha laws and customs (including Mr Reid), the authorisation by way of resolution was an authorisation provided by a process of traditional decision-making.

12                  It might be observed that, in the face of such material, it will be an extraordinary circumstance in which the onus apparently cast upon a person seeking under s 84C to strike out an application for failure to comply with s 61 of the Act will be able to be discharged.  Unless it appears from the face of the application and supporting affidavits filed in accordance with s 62, there will rarely be a circumstance in which that onus can be discharged.  It is not the function of the Court upon such an application to determine the reliability of competing evidence and where the truth lies in relation to some disputed question of fact:  Webster v Lampard (1993) 177 CLR 598 at 602 – 603.

13                  More recently, there has been a meeting at Spear Creek convened by the National Native Title Tribunal as part of its ‘Central West Mediation Strategy’ in South Australia.  It was designed to explore mediated resolution of a number of overlapping claims, including claims overlapping with the native title claim.  It was facilitated by the ALRM.  It is not necessary to refer to that meeting in any detail.  It led to some agreement about how certain of the overlapping claims should be resolved.

14                  The material records that, at that meeting, senior Kokatha law men, including Roger Thomas and Mr Reid, met and told their stories.  An agreement was reached between these people.  A document entitled ‘Outcomes of meeting of Senior Law Men with Kokatha Men at Spear Creek on Friday 21 May 2004’ was signed by Roger Thomas, Mr Reid and Andrew Starkey.  This document stated that Mr Reid was ‘responsible for all Aboriginal law, culture and heritage’ and that Roger Thomas was ‘Spokesperson and responsible for the native title application and all related matters’.  Hence, it may be seen that Mr Reid is, at least at that point, recognised as a senior traditional elder of the native title claim group.  Mr Reid, says that at no time has he been consulted by Ms Hodgson.  He comments that she could not, without having consulted him, formed any reliable anthropological opinion about the traditional decision-making processes of the native title claim group.  He describes the Stirling North meeting as a democratic process involving a vote by show of hands, and not one made pursuant to the traditional laws and customs of the native title claim group.  His views are supported by an affidavit of Murray George, the Chairman of Tjukurpa Anangu Pitjantjatjara Yankunytjatjara Law and Culture Aboriginal Corporation.

15                  If that evidence is correct, it would seem to follow that the authorisation of the claimants at the Stirling North meeting was not an authorisation contemplated by s 251B(a) of the Act.  In that event, so long at least as the native title claim stays in its present form, it should be dismissed.  I do not need to decide whether, if that evidence is correct, it would necessarily be the case that the authorisation did not satisfy s 251B(a).  See e.g. the remarks of Stone J in Johnson, in the matter of Lawson v Lawson [2001] FCA 894, and of French J in Daniel v State of Western Australia (2003) 194 ALR 278;[2002] FCA 1147 at [14].

16                  However, that evidence does not go so far as to demonstrate clearly that it is that the claimants were not authorised in accordance with s 251B(a) to bring the native title claim.  It shows that there is a real and serious issue about authorisation.  But it does not demonstrate clearly that the evidence relied on by the claimants and by the ALRM to show such authorisation is erroneous.  I am therefore not persuaded to the necessary degree that the native title claim was not authorised as requested by s 61 or that it be struck out.

17                  The decision of the Full Court in Williams v Grant, as noted, indicates that the onus upon a party seeking to strike out a native title determination application under s 84C is in essence the same as that applicable to a strike out application under O 20 r 2 of the Federal Court Rules.  The reasons of Lander J do not indicate that the question was fully argued on the appeal.  The approach of Wilcox J at first instance (Grant v Minister for Land & Water Conservation for the State of New South Wales [2003] FCA 621) was apparently to decide the question of authorisation on the evidence, applying the normal onus of proof.

18                  There is much to be said for approaching a strike-out application under s 84C as putting the claimants to proof of their authorisation in accordance with s 251B by the native title claim group, or as putting the party seeking the strike-out to proof of the absence of authorisation, on the balance of probabilities.  The hearing and determination of native title determination applications is prolonged and expensive.  That is so in relation to both the pre-hearing and hearing stages.  Where there is a serious issue whether the applicants in such an application have been authorised in accordance with s 251B of the Act to bring the application on behalf of the native title claim group, it may be both efficient and economic that such an issue be resolved prior to the full hearing of the matter.  That may of course depend upon the nature of the dispute.  If, as here, a member of the native title claim group contests the validity of the authorisation process, the resolution of the issue may be on confined evidence.  Where a party disputes authorisation because there is said to be, in reality, no longer any native title claim group or no longer continuing traditional laws and customs of the native title claim group, there may be such an overlap of evidence as to make that course of action undesirable.  The issue in such circumstances, should be heard as part of the overall hearing.  Section 84C(2), obliging the Court to consider (but not necessarily to determine) the application before any further proceedings may accommodate those alternatives.

19                  Section 84C(4) contemplates the availability of a strike out application under O 20 r 2 of the Federal Court Rules.  In such an application, the high hurdle traditionally applied to strike out applications would clearly be applicable.

20                  There has not been uniformity in the approach of single judges of the Court to the question.  The approach of different judges would appear to reflect the approach of parties in particular cases, rather than to any considered view reached after full argument.

21                  In Quall v Risk [2001] FCA 378 at [66] O’Loughlin J highlighted the Court’s reluctance to summarily dismiss a claim.  In stating this, his Honour made reference to the comments of Wilcox J in Moran v Minister for Land and Water Conservation for NSW [1999] FCA 1637 (Moran).  Moran involved an application for summary dismissal under O 20 r 2 of the Federal Court Rules.  There was no reliance upon s 84C in Moran.  In Edward Landers v State of South Australia [2003] FCA 264, the parties adopted the conventional strike-out test:  see at [7].  However, it appears that Emmet J in Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 790 adopted a somewhat different approach.  After considering the evidence before the Court concerning authorisation, his Honour at [39] stated that he was not satisfied that there was authorisation.  His Honour did not consider whether there was a higher burden on the party seeking the application be struck out and the point does not appear to have been argued.  His Honour would have struck out the application.  However, he did not do so for other reasons:  see also Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 and Branfield v Wharton [2004] FCAFC 138.

22                  Wilcox J has considered circumstances similar to the present on a number of occasions.  In Wilkes v State of Western Australia [2003] FCA 1140 there was no formal defect in the application, and the strike out application was dismissed.  In Bodney v State of Western Australia [2003] FCA 890 his Honour found at [41] that, as the applicant could not produce satisfactory evidence of the authorisation, he failed to establish the authorisation under s 251B.  See also his Honour’s decision in Grant (referred to above), where his Honour was invited by the parties to weigh the evidence.  Tamberlin J in Booth v The State of Queensland [2003] FCA 418 and Lindgren J in Simms v Minister for Land & Water Conservation (2002) 193 ALR 257; [2002] FCA 15 may also have determined the strike out application under s 84C on the evidence and on the balance of probabilities, rather than by reference to the higher standard of proof imposed on a strike out application under O 20 r 2 of the Rules.  See also Dieri People v South Australia (2003) 127 FCR 364.  However, in each of the cases referred to in this paragraph, the evidence of a failure to have complied with s 61 was quite clear so the nature of the test to be applied under s 84C may not have required express consideration.

23                  In the light of the Full Court decision in Williams v Grant, the approach to be adopted is now clear.  It may nevertheless be appropriate to order under O 29 r 2 of the Federal Court Rules that the question whether the claimants are authorised in accordance with s 251B(a) to bring the native title claim be heard and determined before other issues in the proceeding.  If the application is not authorised, then the application must fail.  In that event, there will be a considerable saving in time and expense.  In addition, the ALRM and the State of South Australia each acknowledge that if the native title application were not authorised in accordance with s 251B(a), any subsequent amendment of the native title application to give effect to resolutions made at the Spear Creek meeting might be of no effect.  There may be a need to institute a fresh native title determination application to give effect to the resolution made at the Spear Creek meeting.  The issue of authorisation in accordance with s 251B(a) is not one on which the State of South Australia takes a position.  I suspect other respondent parties adopt a similar attitude.  The determination of that issue is unlikely to result in findings which may affect the fairness of later determining the other issues in the native title claim, principally of course the ‘connection issue’.

24                  For the reasons given, the orders sought on the motion are refused.  I emphasise that that does not reflect a decision whether in fact the native title claim in the name of the claimants was authorised in accordance with s 251B(a) of the Act.  I will hear the parties as to whether any order should be made under O 29 r 2 of the Federal Court Rules for the separate trial of an issue.

Associate:

Dated:              22 July 2004