FEDERAL COURT OF AUSTRALIA

Kokatha Native Title Claim v The State of South Australia [2005] FCA 836

NATIVE TITLE – parties – registered native title claimant in respect of overlapping claim already party – overlapping claim struck out – whether that person thereby ceases to be a party

NATIVE TITLE – parties – application for joinder as respondent parties under s 84(5) of the Native Title Act 1993 (Cth) – basis that respective and individual rights and interests will be affected by a determination of native title in favour of the claimants – no competing claim for native title over claim area by group whose members include putative parties – whether putative parties eligible for party status where interests claimed are communal in character and there is no authorisation under s 251B – whether assertion of such rights by an individual to become eligible as a party may provide alternative route to a determination of native title

Native Title Act 1993 (Cth)

Native Title Amendment Act 1998 (Cth)

Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 cited

Tilmouth v Northern Territory (2001) 109 FCR 240 cited

Munn v Queensland  [2002] FCA 486 approved

Davis-Hurst v New South Wales Minister for Land and Water Conservation (2003) 198 ALR 315 cited

Yarmirr v Northern Territory (unreported, Olney J, 4 April 1997) cited

Quall v Risk [2001] FCA 378 cited

Western Australia v Ward (2000) 99 FCR 316 distinguished

Attorney-General of the Northern Territory v Ward [2003] FCAFC 283 cited

Rubibi v Western Australia (No.3) (2002) 120 FCR 512 distinguished

KOKATHA NATIVE TITLE CLAIM v THE STATE OF SOUTH AUSTRALIA AND OTHERS

SAD 6013 of 1998

MANSFIELD J

24 JUNE 2005

ADELAIDE

THE COURT ORDERS THAT:

1.                  The notices of motion of Michael McKenzie dated 12 April 2005 and Cecil Brady dated 12 April 2005 be stood over to 9.30 am on 8 September 2005 for further consideration.

2.                  Leave to file and serve such further evidence on their respective motions as they may be advised by 26 August 2005.

3.                  Leave to call on their motions on five days’ notice.

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

REASONS FOR JUDGMENT

1                     There are three motions before the Court, each under s 84(5) of the Native Title Act 1993 (Cth) (the Act).  They respectively seek the joinder of Mark McKenzie, Michael McKenzie and Cecil Brady (together called the party-applicants) as respondent parties to the application. 

2                     The application (the Kokatha claim) is made by Daniel Clifton and Roger Thomas on behalf of the Kokatha People (the Kokatha claimants) for the determination of native title in respect of an area of land north-east of Port Augusta in the State of South Australia (the claim area).  There was previously an application for the determination of native title over an area of land also north-west of Port Augusta and a somewhat more extensive area in Federal Court Native Title Determination No SG.6004/98 (the Kuyani claim).  Mark McKenzie was the named applicant on behalf of the Kuyani People in the Kuyani claim.  On 27 January 2005, that claim was struck out. 

3                     Prior to the striking out of the Kuyani claim, and by virtue of s 84(3) of the Act, Mark McKenzie had become a respondent party to the Kokatha claim.  That is, by reason of being a registered native title claimant in respect of an area of land which encompassed the claim area, he had been notified by the Native Title Registrar pursuant to s 66(3)(a)(i) of the Kokatha claim so as to satisfy s 84(3)(a)(i), and he had responded by notice to the Court within the permitted period in accordance with s 84(3)(b) of the Act. 

4                     The Kokatha claimants, and the Aboriginal Legal Rights Movement (the ALRM) (as the relevant representative body), contend that by reason of the Kuyani claim having been struck out, Mark McKenzie ceased to be a party to the Kokatha claim.  That is the first issue to be addressed.  If, despite the striking out of the Kuyani claim, Mark McKenzie remains a party to the Kokatha claim, his notice of motion is otiose.  There would be no need to make any order on it.  So far as I am aware, and including the researches of counsel, the particular issue has not previously arisen.

Is Mark McKenzie Still a Party to the Kokatha Claims?

5                     Section 84(3), the provision by which Mark McKenzie became a party to the Kokatha claim, is expressed in the present tense.  That is, by virtue of his status at the time he gave notice under s 84(3)(b) to the Court, he ‘is’ a party to the Kokatha claim.  The Act does not then expressly address his status once the Kuyani claim was struck out.

6                     Section 84(8) empowers the Court generally, at any time, to order that a person cease to be a party to proceedings under the Act.  Section 84(9) informs the exercise of that power.  It provides:

‘The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:

(a)               the following apply:

(i)                 the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and

(ii)               the person’s interests are properly represented in the proceedings by another party; or

(b)       the person never had, or no longer has, interests that may be affected by a determination in the proceedings.’

Significantly in my view, the discretionary power under s 84(8) may be exercised in respect of a person if that person no longer has interests that may be affected by a determination in the proceedings.  Clearly it contemplates that there is no automatic removal of a party if the interests which previously led to that person becoming a party cease to exist.

7                     Senior counsel for the Kokatha claimants submitted that s 66(4)(b) applies directly to Mark McKenzie so that he ceased to be a party to the Kokatha claim because the Kuyani claim in which he was the named applicant was struck out.  I do not accept that contention.  Section 66(4) applies in different circumstances.  Its purpose is clear.  Upon the Native Title Registrar receiving a copy of an application for determination of native title under s 63, the Registrar must give certain notice of the application.  In the first place, such notice must be given as soon as reasonably practicable to the relevant State or Territory minister.  Section 66(3) provides that, subject to other provisions of the section, notice must also be given to a range of other persons including by public notification.  Section 66(3) does not apply in the circumstances to which s 66(4) refers.  It provides:

‘Subsection (3) does not apply if:

(a)               the State or Territory Minister applies to the Federal Court under subsection 84C(1) or otherwise, within 28 days after the day on which the State or Territory Minister is given a copy of the application under subsection (2), to strike out the application; and

(b)               the Court strikes out the application.’

Clearly, it is intended to avoid the extensive notification requirements in the event that, within a limited time, the relevant State or Territory Minister applies to the Court, and succeeds in obtaining an order from the Court, that the native title determination application be struck out.  It is a commonsense and practical provision.

8                     The argument of senior counsel for the Kokatha claimants necessarily requires that s 66(4) be read so that the conjunctive ‘and’ be read as the disjunctive ‘or’.  There is no contextual or practical reason why the clear and normal meaning of the conjunctive should not be given.  Indeed, in context, its normal meaning is the sensible one.  Moreover, the time limit imposed in s 66(4) fortifies that meaning and purpose.  Its operation does not extend to retrospectively negativing the notification which, in the absence of a timely order under s 66(4), the Registrar has given under s 66(3), or to undo the status of a party procured under s 84(3)(a)(i) and (b).

9                     I note also that s 66(4) does not limit the grounds of strike out to those specified in s 84C(1).  It also does not require the application by the relevant State or Territory Minister to be made under that provision.  By way of contrast, s 84C permits a strike out application only on limited grounds (non-compliance with ss 61, 61A or 62), and any such application may be made by any party at any time.  It was an application under that section which led to the striking out of the Kuyani claim.  Those matters also militate against the contention that s 66(4) operated to remove Mark McKenzie’s status as a party to the Kokatha claim by reason only of the strike out of the Kuyani claim.

10                  In addition, within the time contemplated by s 66 (the time within which the Registrar must give notice more generally to the public) s 84(3)(a)(ii) and (iii) permit persons who claim to hold native title in respect of the land the subject of a particular application, or persons whose interests may be affected by a determination in the proceedings, also as of right by notice under s 84(3)(b) to become parties to the application.  The fact that a person has become a party by the eligibility criterion in s 66(3)(a) and s 84(3)(a)(i), and that the native title claim which gave that eligibility has been struck out, does not necessarily mean that the person would not otherwise have been eligible for automatic party status under s 84(3) by its other eligibility placita in s 84(3)(a)(ii) or (iii).  The strike out of the Kuyani application does not itself mean that Mark McKenzie might not nevertheless be a person whose interests may be affected by a determination in the present Kokatha claim.  Such considerations could be addressed in the event of the Court considering whether to order that a person ceased to be a party to a particular proceeding, as s 84(9) contemplates. 

11                  For those reasons, I consider that Mark McKenzie is still a party to the Kokatha claim.  No other party has invited the Court to order under s 84(8) that he cease to be a party.  That is understandable in the present circumstances, as steps are being taken for the Kuyani people to make a fresh application for the determination of native title in respect of some or all of the claim area of the Kokatha claim.  It is therefore unnecessary to further consider his motion.  As his motion is in essence on the same basis as that of the other two motions, it is convenient nevertheless to address this motion also as if he were not still a party to the Kokatha claim.

The Motions of the Party - Applicants

12                  Section 84(5) of the Act permits the Court:

‘at any time [to] join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings.’

Each of the party-applicants assert that their respective and individual rights and interests will be affected by a determination of native title in favour of the Kokatha claimants.

13                  The particular rights and interests claimed by the Kokatha claimants include the right to possess, occupy, use and enjoy the claim area; to make decisions about its use and enjoyment; to control access to the claim area; to enjoy its resources; and to control the use and enjoyment of its resources by others.  There are other claimed rights to which I need not refer.  Those rights are not expressed to be claimed as shared rights, and as I read the application the claimed rights and interests are said to be exclusively vested in the Kokatha claimants.  Each of the party-applicants on the three motions asserts that those claimed rights are inconsistent with rights which they individually claim in relation to the claim area, in particular inconsistent with rights which each of those individuals claim to possess in relation to the area to make decisions about the use and enjoyment of the area; to control the access of others to the area; and to control the use and enjoyment of others of the resources of the area.

14                  After referring to their respective backgrounds and their respective experience with the claim area or with parts of it each of the party-applicants asserts:

‘I assert native title rights and interests to the area the subject of the Kokatha native title claim area come from the Wilyaru-Kuyani law of traditional laws and customs.  I cannot ascertain under what Law or traditional system the Kokatha claimants assert rights and interests in the land the subject of the Kokatha claim.

I claim the right, along with any other person who has the same right in relation to the same area in accordance with the traditional laws and customs of the Aboriginal society to which I belong, to possess, occupy, use and enjoy that part of the Kokatha claim area [which is then identified] including extensive rights including those said to be inconsistent with the Kokatha claimants.’

15                  The contention of each of the party-applicants on the three motions is quite straightforward.  They contend that they each claim an interest in the land the subject of the Kokatha claim as Kuyani/Wilyaru men or, in the case of Michael McKenzie, as an Adnya-Kuyani man under the Wilyaru-Kuyani traditional laws and customs, and that their interests are inconsistent with the rights claimed by the Kokatha claimants in the Kokatha claim.

16                  In Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1, Black CJ said at 7-8:

‘The nature and content of the right to become a party to proceedings for the determination of native title, with the power as a party in effect to veto the process of mediation and conciliation which the Act favours, suggests that the interests which s 68(2)(a) and the related sections dealing with parties are concerned are interests that are not indirect, remote or lacking substance.  The nature and content of the right also suggests that the interests must be capable of clear definition and, equally importantly, that they are of such a character that they may be affected in a demonstrable way by a determination in relation to the application.

There is, however, no reason to conclude from the subject matter, scope and purpose of the Act that the interests need to be proprietary or even legal or equitable in nature.  Whilst the interests must be genuine and not indirect, remote or lacking in substance, there is no indication that, for example, a person who has a special, well-established non-proprietary connection with land or waters which is of significance to that person is not to be regarded as having interests that may be affected by a determination …’

17                  Senior counsel for the Kokatha claimants contended that s 84(5) does not permit the joining of parties on the present grounds because they involve, in essence, asserting native title rights and interests inconsistent with those claimed by the Kokatha claimants.  There were two matters put in support of that contention.

18                  The first is that s 84(3)(a)(i) and (ii) provide the only means to attain party status for competing native title claimants, so that after the notification period fixed under s 66, party status for competing native title claims is simply unavailable.

19                  It is correct that native title is fundamentally communal in nature:  see e.g. Tilmouth v Northern Territory (2001) 109 FCR 240 at 241-242.  Such a claim may now only be made by application under s 61 authorised under s 251B.  However, there is no provision in the Act expressly limiting an authorised native title claimant to become a party to a competing native title claim, or requiring a non-authorised native title claimant to become a party to such a claim, only within the notification period.  Section 66(3) prescribes those persons who, as a matter of record, can be identified as likely to have an interest or interests in a claim area or who may be affected by a determination of native title over a particular claim area (apart from subs 66(3)(a)(vii), which also empowers the Native Title Registrar to expand express notification to others).  Section 66(3)(d) requires public notification of an application for determination of native title.  An authorised claimant for a determination of native title, where a claim has not been registered on the National Native Title Register under Pt 8 of the Act is not entitled to be notified under s 66(3)(a) of an application over the claim area, but may come within s 84(3)(a)(ii).  But s 84(3)(a)(ii) does not expressly limit its operation to such persons.  Persons who claim eligibility to party status under that provision, but who are not by then authorised under s 251B to pursue a claim for native title rights, are not excluded.  There is no contextual or grammatical reason why the provision should be read so as to exclude them.  The breadth of the provision is to the contrary.  Rhetorically, one asks then why s 84(5) should be read so as to exclude those persons who, for whatever reason, do not assert the eligibility status available during the notification period but nevertheless are part of a native title claim group with competing claims to native title rights and interests over the claim area.

20                  There is obviously good reason why persons who have competing claims to native title should be entitled to be parties to other competing claims for the same or overlapping area.  As there can be only one determination of native title over a particular area, it is desirable that everyone who claims to be so entitled to such rights should be able to become a party to the claim or claims in which those rights may be determined.  Emmett J in Munn v Queensland  [2002] FCA 486 said at [8]:

‘The clear intention is that a determination should be a final resolution, once and for all, of the extent of native title in relation to a particular parcel of land.  However, it does not necessarily follow that a native title interest would not constitute interests that might be affected by a determination made in a proceeding under the Act.  The holder of a native title interest may have sufficient interest to warrant participation in a proceeding, notwithstanding that the Court could not make a determination in relation to that interest in the proceeding in question.’

21                  The second contention of senior counsel for the Kokatha claimants was shared with counsel for the ALRM.  It was that the Court should decline to make the orders sought as the interests which are claimed to be affected are inherently communal in character, so that no one person or persons (unless authorised under s 251B) should be permitted to assert them.  At the other end of the spectrum, counsel for the party-applicants contended that the assertion of such rights by an individual so as to become eligible to be a party may provide an alternative route to a determination of native title even though the person is not an authorised native title claimant on behalf of a particular claim group.

22                  I accept the submission of counsel on behalf of the State of South Australia that the correct position is between those two extremes.  In my view, the Court has a discretion under s 84(5) to join each of the party-applicants as a party to the Kokatha claim notwithstanding that, as individuals, they are each asserting that their interests which are or may be affected by a determination of native title in the proceedings are apparently native title rights and interests.  However, I do not consider that their claimed interests, if established, could provide another avenue to a determination of an entitlement to native title rights and interests in the claim area in their favour.  I share the view of Emmett J in Munn at [8] to that effect.  It is a view which Branson J also appears to have shared in Davis-Hurst v New South Wales Minister for Land and Water Conservation (2003) 198 ALR 315.

23                  In my judgment the prescriptive structure in the Act for the making of an application for the determination of native title under s 61, with the procedural requirements of s 62, and, since the Native Title Amendment Act 1998 (Cth) (the 1998 amendments), the authorisation requirements under s 251B are clear.  They provide the only vehicle for the positive determination of native title rights and interests.  They require the assurance that the whole of the claim group has authorised the bringing of the claim through the authorised claimants.  In Yarmirr v Northern Territory (unreported, Olney J, 4 April 1997) his Honour stressed the importance of compliance with those provisions.  See also Quall v Risk [2001] FCA 378 at [67].  I do not regard the authorities relied upon by counsel for the party-applicants as being inconsistent with that view.  In Western Australia v Ward (2000) 99 FCR 316, the remarks of Beaumont and von Doussa JJ at 369, at [192]-[193] were made in the context of an existing competing native title claim group at least adjoining the claim area under consideration and including an area partly overlapping the relevant claim area:  see Note C to the Consent Determination in Attorney-General of the Northern Territory v Ward [2003] FCAFC 283.  They were also made prior to the 1998 amendments of the Act.  In Rubibi v Western Australia (No.3) (2002) 120 FCR 512, Merkel J was also considering the joinder of a group of dissentient native title claimants as parties where they themselves had a competing view to other members of the native title claim group as to the way in which native title was to be held within the claim area.

24                  It does not follow that the party-applicants should not be joined as parties to the Kokatha application.  They each assert interests which may be affected by a determination in the Kokatha claim.  It is correct that the interests which they assert are rights which are in the nature of native title rights and interests which, if granted under the Act, are group rights and interests and are communally held.  But it does not follow that, in circumstances such as the present, the party-applicants should be denied the opportunity to assert such rights.  The assertion of those rights, to the extent that they are actually enjoyed by the party-applicants as individual members of the group, cannot lead in the Kokatha claim to a determination of native title rights and interests.  They may however lead to a more informed decision on the Kokatha claim as to whether the native title rights and interests should be granted as expressed in that application.  That is, the assertion of those rights may result in the Kokatha claim being less successful than it may otherwise be.  Where there may be a competing native title group who claim communal rights and interests which may be affected by a determination in the Kokatha claim, but there is no application by that group over the claim area, the members of that group should not be precluded from putting forward their claim in a defensive attempt to avoid the dilution of those interests.

25                  At least the status as a party enables that person to be heard and to adduce evidence as to whether the Kokatha claimants do have the native title rights and interests to the extent they have claimed them.  In my view, the members of the claim group whose interests may be affected by such a determination are eligible for being joined as parties to the Kokatha claim under s 84(5).

26                  The power in s 84(5) is discretionary.  It can be exercised to prevent a flood of individuals, as members of a communal group who claim to have native title rights and interests over all or part of a claim area and whose rights and interests may be affected by a determination, from becoming parties.  In circumstances where there are a number of such individuals, it would not necessarily be the first such individual who would be the appropriate party.  It will often be a matter for evidence as to whether any one individual has either a particular status or a particular perspective or particular circumstances which warrant that person’s joinder as a party, including that person’s status within the putative or competing claim group.  It may be relevant to know the extent to which that person or persons has the support of, or is entitled to represent, the interests of the putative or competing claim group.  No hard and fast rules can be laid down.

27                  In this matter, I have determined that Mark McKenzie remains a party to the Kokatha claim.  He was the ‘authorised’ claimant for the Kuyani claim, although that claim was struck out as the authorisation process had not properly been undertaken.  There is presently no evidence which persuades me that his participation in the proceedings in that capacity will not adequately protect the interests of Michael McKenzie and Cecil Brady.  I do not think there is evidence which indicates that Michael McKenzie or Cecil Brady assert a particular status or perspective which would support their joinder as parties in addition to Mark McKenzie, or instead of Mark McKenzie.  That is not a matter which was really addressed in their evidence.  In addition, a fresh application for determination of native title by the Kuyani people is clearly contemplated.  The authorised claimants in that matter may then apply to be joined as parties to the Kokatha claim (and, if he is not an authorised claimant on behalf of the Kuyani people, at the same time Mark McKenzie’s continuing status as a party might be reviewed).  I understand that process may be completed within a few months.  There is nothing likely to occur in the conduct of the Kokatha claim before the next callover day on 8 September 2005, at least nothing identified to me in submissions, which might require Michael McKenzie and Cecil Brady to become parties prior to that date.

28                  I therefore propose to stand over each of the notices of motion of Michael McKenzie and Cecil Brady to 9.30am 8 September 2005 for further consideration.  I will give them leave to file and serve such further evidence on their respective actions as they may be advised by 26 August 2005, so that those parties who opposed their joinder as parties may have an opportunity to respond.  I will also give them leave to call on their motions on five days’ notice, in case there is some urgency in the resolution of their applications which I have not discerned.

29                  In the case of Mark McKenzie’s motion, I will simply make no orders as I have found he remains a party to the Kokatha claim.

30                  For the sake of completeness, I note that the party group called the Cooper Basin Oil and Gas Producers did not participate in the hearing of the three motions, but expressed the view through senior counsel that those parties consented to the orders sought in the three

motions on the basis that anybody who asserts native title over the claim area of the Kokatha claim should be entitled to be heard on that application.

Associate:

Dated:              23 June 2005