FEDERAL COURT OF AUSTRALIA
Reid v State of South Australia [2007] FCA 1479
COSTS – s 85A of the Native Title Act – whether there was unreasonable conduct on the applicant’s behalf – deterrence of other possible claimants
Native Title Act 1993 (Cth) ss 13(1)(a), 61, 61A, 62, 67, 84C, 85A, 251B
Federal Court of Australia Act 1976 (Cth) ss 31A, 43
Associations Incorporation Act 1985 (SA)
Thomas v State of South Australia [2004] FCA 951cited
Harrington-Smith v State of Western Australia (No 9) [2007] FCA 31 cited
Landers v State of South Australia (2003) 128 FCR 495 cited
Colbung v State of Western Australia [2003] FCA 774cited
Risk v National Native Title Tribunal [2000] FCA 1589 cited
McKenzie v State of South Australia (2005) 214 ALR 214 cited
Bodney v Bropho (2004) 140 FCR 77cited
Briggs v Minister for Lands for the State of New South Wales (2004) 209 ALR 75 cited
Bolton v State of Western Australia [2004] FCA 760 cited
Cretazzo v Lombardi (1975) 13 SASR 4 cited
Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 cited
Ruddock v Vadarlis (2001) 188 ALR 143 cited
McKenzie v State of South Australia [2006] FCA 891 cited
Latoudis v Casey (1990) 170 CLR 534 cited
RICHARD REID (NINGIL REID) v STATE OF SOUTH AUSTRALIA
No SAD 85 of 2007
FINN J
21 SEPTEMBER 2007
ADELAIDE
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IN THE FEDERAL COURT OF AUSTRALIA |
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SOUTH AUSTRALIA DISTRICT REGISTRY |
SAD 85 OF 2007 |
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BETWEEN: |
RICHARD REID (NINGIL REID) Applicant
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AND: |
STATE OF SOUTH AUSTRALIA Respondent
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FINN J |
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DATE OF ORDER: |
21 SEPTEMBER 2007 |
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WHERE MADE: |
ADELAIDE |
THE COURT ORDERS THAT:
1. Order 2 of 17 August 2007 be vacated.
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 |
SAD 85 OF 2007 |
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BETWEEN: |
RICHARD REID (NINGIL REID) Applicant
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AND: |
STATE OF SOUTH AUSTRALIA Respondent
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JUDGE: |
FINN J |
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DATE: |
21 SEPTEMBER 2007 |
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PLACE: |
ADELAIDE |
REASONS FOR JUDGMENT
1 On 17 August 2007 I ordered that the claimant application made in this matter be struck out under s 84C of the Native Title Act 1993 (Cth). I suspended the operation of the order pending the publication of these reasons. The applicant, Richard (Ningil) Reid, filed this application on 24 May 2007. It overlapped at least eight other claims including (inter alia) the Kokatha Native Title Claim (SAD 6013/98). Mr Reid, who is acknowledged by the claimants in that claim to be a Kokatha elder, is a member of that claim both as a claimant and as a respondent. His present application is described as the “Kokatha Nation Claim”.
2 The respondent State of South Australia moved to have the claim struck out under s 84C or else dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth). The motion was supported by the Aboriginal Legal Rights Movement which as well represented native title claim groups overlapped by the Kokatha Nation Claim.
3 The bases of the motion were, variously, that (i) the native title claim group description was unclear; (ii) the claims were made impermissibly on behalf of a sub-group; (iii) the claimed bases of authorisation did not meet the requirements of the Act; and (iv) the application failed to comply with the requirements of s 61A and s 62 of the Act.
BACKGROUND
4 Mr Reid’s application would appear to be his response to a long standing dispute he has with the applicants in the Kokatha Native Title Claim of which claim group he describes himself as a “dissentient member”. It is clear on the material before me that he has been involved in meetings relating to that claim and its authorisation. The most notable of these are as follows.
(i) A meeting was held at Stirling North on 30 and 31 January 1999 when the Kokatha people authorised the claim without dissent. Mr Reid would seem to have made and signed alterations to the Memorandum of Understanding resulting from that meeting and he appears to have affixed the common seal of the Kokatha Peoples Committee Inc to it. One of the terms of the MoU was that the parties agreed to negotiate in good faith on “(b) the bringing of all Kokatha groups into the same native title claim or series of claims”.
(ii) A meeting was convened by the ALRM at Spear Creek on 21 May 2004 at which a written decision was reached and signed (inter alia) by Mr Reid that Roger Thomas was to be the spokesman and to be responsible for the native title application and related matters. Mr Reid and Mr Starkey were to be “responsible for all Aboriginal law, culture and heritage”. Mr Reid now disavows any approval he gave to Mr Thomas.
5 In 2003 Mr Reid sought, unsuccessfully, to have that native title claim struck out for want of authorisation: see Thomas v State of South Australia [2004] FCA 951.
THE CLAIMANT APPLICATION
6 After filing the application on 24 May 2007, Mr Reid purported to file two further amended applications, one on 14 June 2007, the other on 9 July 2007. I have had regard to these for the purposes of the State’s motion and, formally, I have proceeded as if leave had been given to file and serve that of 14 June 2007. The State’s submissions proceeded on that basis. I took this course because I would in any event have had to strike out the original application because, according to the express terms used in Schedule of O of that application, Mr Reid was, as a member of another claim group, “specifically excluded from this application’s claim group”.
(i) The native title claim group
7 The Schedule A claim group is made up of a two page list of 103 named persons followed by the reference to “other living Kokatha persons as described in Attachment A”. Mr Reid claims that access to this Attachment is “restricted”. The Attachment provided greater detail about Mr Reid and the named persons and then continues:
“4. The Claim group also has the capacity to contain descendents of prior attendees and participants in KPC meetings and activities, (if they are not already in the claim group) and if they are have the necessary ancestry relating to inheritance (i.e. if they are valid Kokatha). Such live persons or live descendents will be included in the claim group in due course (at the discretion of KPC Elders and Advisors).
5. The Claim Group also has the capacity to contain live descendents of prior Custodians over parts of the Kokatha Nation Territory. Such persons will be included in the claim group in due course (at the discretion of KPC Elders and Advisors).
6. The Claim Group also has the capacity to contain adopted persons from other tribes (and their Kokatha descendents) using criteria such as whether such people acknowledge and are schooled in Kokatha law and custom, participate in Kokatha activities, or have valid interests in part of Kokatha Nation territory. (The exact criteria that [sic] used will be up to the Elders to decide).”
(Original emphasis)
8 The KPC referred to is the Kokatha Peoples Community Inc, a body incorporated under the Associations Incorporation Act 1985 (SA). It will be necessary to make further reference to this body later in these reasons.
9 In written submissions on behalf of Mr Reid it is said that Mr Reid is able “to add thousands to the claim group” and that he has the ability to make the claim group “representative of all Kokatha people”.
10 I would note that neither Mr Thomas nor Mr Starkey, who were acknowledged in the Spear Creek agreement to be “representatives of the Kokatha people”, are named in the above native title claim group.
11 There is one additional matter to which I should refer. During the hearing of the motion the following exchange occurred with Mr Reid’s legal representative:
“HIS HONOUR: Is Mr Reid suggesting that he alone has any native title rights and interests in the property the subject of the claim?
MR FARDONE: We are saying that he is the principal person to bring a native claim.
HIS HONOUR: That is not the question I asked you, Mr Fardone. I am asking you is Mr Reid asserting he is the only person who has native title rights or interests in the property the subject of the claim? No other person who happens to be a Kokatha and who observes traditional law and customs has any right – native title rights or interests?
MR FARDONE: Yes, they have, if they have been through the traditional laws and customs, yes, and can show that connection in ancestry. What Mr Reid submits is that, first of all - - -
HIS HONOUR: So I can properly proceed on the assumption that there are other people who do have native title rights or interests in the subject area?
MR FARDONE: Yes, your Honour.”
12 Six days after the hearing Mr Fardone wrote to the Court seeking leave to file further submissions on the issue of authorisation. The apparent basis for his so doing is that in the above exchange he “mistakenly and un-intentionally conceded points”. Subsequently Mr Reid filed an affidavit in the Kokatha Native Title Claim in which he claimed to “hold all the native title rights or interests of the Kokatha people”. In submissions filed on 29 August on the issue of costs it seems to be asserted that it was only when I asked the above questions that Mr Reid came to realise that he alone held all the common or group native title, hence his difficulty in settling his claim group.
13 I refused the leave sought. Apart from illustrating the continually evolving character of yet a further application, it would have served no useful purpose. I would also note that the claimed native title rights and interests described in the application clearly envisage their being held and enjoyed by a community or group and not entirely by a single individual.
(ii) Authorisation
14 In Part A2 of Form 1, Mr Reid describes his entitlement to make the application in the following terms:
“1. Richard (Ningil) Reid, is the Custodian of Native title over the Kokatha Nation. He was given this authority by each preceeding head lawman who were prior custodians over parts of the Kokatha territory and ‘Brothers’ under Kokatha Law. The authority to take-over their custodianship was given to him prior to their death. This series of once off decisions was traditional (like a Futures Act), and all descendents who acknowledge traditional law and custom will also adhere to this decision.
2. Richard (Ningil) Reid as head lawman (Buddoo) with highest ceremonial status (Wilyura), and being such he has the authority to make decisions for the Kokatha people, so automatically he can make himself applicant on their behalf.
3. Additionally, if there were any doubt about the above, the Elders of the surrounding Western Desert tribes have testified to his ability to do this, and recently expressly authorized him to deal with Native Title matters before the court. On behalf of Kokatha people it is traditional for head lawmen in the Western Desert surrounds to act as advisors/consultants/witnesses in Kokatha matters, especially in demarcation matters. The advisors are ‘associated’ with the claim group. Two are also members. Many of the same lawmen were involved in drawing up the Kokatha Nation Map at Spear Creek on May 23 2004 which is the basis of this claim.
4. The claim group are also members of the KPC (Kokatha Peoples Community Inc), and the KPC has authorized the bringing of this claim by the applicant. Members acknowledge traditional laws and customs of the Kokatha people. KPC members have for some time sought to bring a claim. A vote to bring this specific claim was taken on 17th March 2007 at Yorkeys Crossing Pt Augusta (after the Bench indicated, in a hearing of 16th March 2007, that the Kokatha Overlap proceeding would resolve once Richard Reid brought a claim).”
15 Before turning to the evidence relating to authorisation by the KPC in the above, it is necessary to refer to that concerning KPC itself. As indicated above, the KPC is an incorporated association. Its objects are to preserve and propagate the traditional culture and religious heritage of the members of the KPC; to promote the legitimate claims and interests of members of the community in their traditional lands (and to assist them in legal action in respect of such claims); and to provide services, facilities and a forum for discussion and decision making, for the benefit of members of the KPC.
16 Clause 9 of the KPC’s constitution provides for “membership” (insofar as presently relevant) as follows:
“* Membership of the Association is open to all Descendants of Kokatha who accept and support the Objects and Purposes of the Association and who are recognised and accepted by the Traditional Cultural Leader.
* Other persons may be accepted as Honorary members if they also accept and support the purposes of the association and are recognised and accepted by the Traditional Cultural Leader.”
Clause 16 provides that the association has power to recognise and acknowledge a “Cultural Leader as Champion of the People”. The Cultural Leader, who is Mr Reid, is the “Perpetual Chairman” of the association’s administrative organs, the Community Council and the “Executive Council” and has a power of veto over all decisions of both councils. Insofar as concerns meetings, cl 18 provides (inter alia):
“* The Cultural Leader has the responsibility and authority to decide upon the specific date and place of meeting and special agenda items.
* All recognised and registered members of the Association shall be invited to attend and other persons at the discretion of the Cultural Leader.”
17 As to the KPC meeting on 17 March 2007 the evidence of its being called is simply that of a newspaper advertisement in the Roxby Downs Sun of an AGM at a specified time and place. No details of the agenda are disclosed. Minutes of the meeting, annexed to an affidavit of Mr Reid indicate fewer than twenty people attended and that they voted unanimously to give Mr Reid authority to become a native title applicant. It is stated in Attachment A to the application that all the named members of the native title group (i.e. 103 persons) are KPC members. There is no evidence to suggest that all such members have authorised the claim. It is clear from Mr Reid’s evidence that not all members of the KPC were present. In Attachment R to his application, Mr Reid states that “[t]he decision was made by s 251B (a) (sic), non-traditional process, (as only a few members present were Elders)”.
18 Three affidavits have been filed by members of the Management Committee of the Kokatha Native Title Claim group, two of which state that the deponents were unaware of the meeting held to authorise the claim made by Mr Reid. All three state the respective deponents did not authorise the claim and deny Mr Reid has the authority to make the claim without the authorisation of the general Kokatha Community. In his affidavit, Mr Starkey (to whom I earlier referred) indicated:
“2. I am an initiated man and have been involved in cultural activities within the Kokatha Community for many years.
3. I was aware that the Kokatha Peoples Committee, of which I was once an active member, was having an annual general meeting in March of this year but I was not aware that the meeting was being held to authorise a Native Title Claim to be made by Ningil Reid.”
19 Finally I should note in relation to membership of the KPC, that the membership application form requires an applicant to subscribe to the following authorisation and declaration:
“Authorisation
I hereby authorize Ningil & the KPC alone to represent myself regarding all concerns/interests to do with Traditional Kokatha Culture, Customs & Laws including intrinsic Spiritual Rights, Religeous [sic] Freedoms and Native Title.
Declaration
· I am a person of Kokatha ancestry;
· I understand that membership of the KPC does not necessarily entitle me to be part of a native title claim group it being up to the Elders and the Federal Court to decide this.
· I want the Spirit & Culture of our Ancestors to be respected & preserved;
· I accept Ningil Reid as Kokatha Cultural Leader and Perpetual Chairman;
· I only recognize Ningil & the KPC to properly represent Traditional Kokatha;
· I agree to abide by the Constitution and rules of the KPC inc”
(Emphasis added)
I have emphasised the second dot point above as, consistent with the claimant application itself, it does not suggest that membership of the native title claim group is a matter within the discretion of Mr Reid alone. I refer further below to the discretion given to KPC Elders, the terms of which have been earlier set out in clauses 4 to 6 of Attachment A to the application.
20 The affidavit accompanying all three versions of Mr Reid’s application states in part that:
“(d) I am authorised by all persons … in the native title claim group to make the application and to deal with matters arising in relation to it; and
(e) I am authorised to make this application by virtue of the fact that:
1, a meeting of the KPC (Kokatha People’s Community Inc) on 17th March 2007 at the Old Ostrich Farm at Yorkey’s Crossing, where a vote was taken that I should bring a claim on behalf of KPC members of the Claim group and for Kokatha people. 2. Recent written authorisation from Elders and Senior lawmen in the Western Desert surrounds who advise Kokatha on demarcation matters. 3. A Kokatha Nation Map, was drawn up by Elders at Spear Creek on 23 May 2007 during a meeting convened by the Aboriginal Legal Rights Movement. The Map was subsequently produced by the NNTT and widely distributed.”
It makes no reference to self-authorisation.
21 There is evidence annexed to an affidavit of Mr Reid of statements signed by various elders and lawmen of surrounding Western Desert regions all stating in identical terms that:
“I assure you that as far as Kokatha people are concerned, Ningil Reid (Richard Reid) is the Traditional Elder for Kokatha.
This means that he can make decisions for Kokatha people in regard to anything, without even having to consult the elders, but when he does choose to consult the elders they come straight away (within 2 or 3 weeks) even if no ceremony is in place.”
22 In Attachment R to the application, Mr Reid notes that the Kokatha Nation map drawn at Spear Creek was based on traditional decision making which mainly involved senior lawmen. He goes on to state that “[s]ome of the same Elders who made decisions about the Kokatha Nation map [were] the same as some of those [who] have now authorized Mr Reid to attend to Kokatha Native Title matters”.
STATUTORY SETTING AND APPLICABLE PRINCIPLES
23 An application for a determination of native title under s 13(1)(a) of the Native Title Act can be brought in accordance with s 61(1) by (for present purposes):
“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; …
Note 1: The person or persons will be the applicant: see subsection (2) of this section.
Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group.”
(Original emphasis)
24 As Lindgren J commented in Harrington-Smith v State of Western Australia (No 9) [2007] FCA 31 at [72]:
“The expression ‘native title claim group’ is defined in s 253 to mean, relevantly, the native title claim group mentioned in this passage. The expression is commonly and understandably used to refer to the group on whose behalf a native title determination application – claimant application is made. Indeed, Form 1, prescribed by para 5(1)(a) of the Native Title (Federal Court) Regulations 1998 (Cth), uses the expression in that sense, treating ‘claimants’ and members of the ‘native title claim group’ as synonymous. But there is no escaping the fact that the ‘native title claim group’, all of whose members are required by s 61(1) to authorise the applicant to apply, is a group constituted by all the actual holders, according to their traditional laws and customs, of the common or group rights or interests comprising the particular native title claimed.”
25 Section 61(4) provides that where a native title application is one authorised by a claim group the application must (a) name the persons constituting the group or (b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.
26 “Authorisation” for the purposes of s 61(1) is defined in s 251B as follows:
“For the purposes of this Act, all the persons in a native title claim group … authorise a person or persons to make a native title determination 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 … must be complied with in relation to authorising things of that kind – the persons in the native title 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 … 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 … in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.”
(Original emphasis)
27 It is well-accepted that “[t]he proper identification of the native title claim group is the central or focal issue of a native title determination application”: Landers v State of South Australia (2003) 128 FCR 495 at [35]. It is that group which provides the authorisation under s 251B: see Harrington-Smith (No 9), at [1186] ff. It is in that group’s favour that a determination, if successful, is made: ibid; see also Colbung v State of Western Australia [2003] FCA 774.
28 The requirements that the group be constituted by all the actual native title holders and that a determination, if successful, is to be made in their favour carry with them two consequences. The first is that a subset or part of what truly constitutes a native title group cannot itself be a claimant group under s 61(1): Risk v National Native Title Tribunal [2000] FCA 1589 at [60]-[61]; although in some, though by no means all, instances, there may be good reason for hesitation in readily concluding that an alleged group is only a sub-group or part of a group for s 84C purposes: see McKenzie v State of South Australia (2005) 214 ALR 214 at [41]. The second is that where the class membership is described, not listed, there must be descriptive certainty of the class, i.e. the application must describe the persons who are within the class “sufficiently clearly so that it can be ascertained whether any particular person is one of those persons”: cf 61(4)(b) and McKenzie at [42]-[43].
29 I have noted above the tie between group membership and authorisation. Of the significance of authorisation I need do more than gratefully adopt what was said by Lindgren J in Harrington-Smith (No 9) at [1171]-[1172]:
“‘Proper authorisation is the foundation for the institution and maintenance of a native title claimant application under s 61 of the new Act’: Perry and Lloyd, Australian Native Title Law(Thomson Lawbook Co, 2003) at [3.140] p 439. Authorisation is ‘fundamental to the legitimacy of native title determination applications’, and is ‘not a condition to be met by formulaic statements in or in support of applications’: Stricklandat 259-260.
Where the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales[1999] FCA 1637 at [48]; Stricklandat [56]-[57] (approved in WA v Stricklandat [77]-[78]); Drury v Western Australia(2000) 97 FCR 169 at [10]; Daniel v Western Australia(2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O’Loughlin Jat [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal[2000] FCA 1589 at [30]; Dieri People v South Australia(2003) 127 FCR 364 at [55] (‘Dieri People’); Tilmouth v
Northern Territory(2001) 109 FCR 240.”
30 Finally I should note that s 84C(1) provides that, if an application does not comply with s 61, s 61A or s 62, a party to the proceedings may at any time apply to this Court to strike it out. All I need observe here is that the court’s power should be exercised only where the claim as expressed is untenable upon the “version of the evidence” favourable to the respondent to the strike out: McKenzie, at [26]; Bodney v Bropho (2004) 140 FCR 77.
THE MOTION
31 It is submitted by the State that the described native title claim group is flawed in two respects: (i) it is descriptively uncertain in that, beyond the listed members, the group may be expanded to include persons of certain characteristics at the discretion of certain people: see para 4-6 of Attachment A quoted earlier; and (ii) the present group is only part of the group acknowledged by Mr Reid to be capable of being brought within it – as witness the exclusion of persons previously acknowledged by him and by Kokatha lawmen to be representatives of the Kokatha people, the suggestion that Mr Reid is able to add thousands to the claim group and the assertion that members of the claim group are members of the KPC, although as such they bring a claim “for Kokatha people”: see the affidavit accompanying the application quoted above.
32 It is unnecessary for me to express a concluded view on the former – the descriptive uncertainty – submission as I am satisfied that the claim group as described is merely part of a group. Nonetheless, I would comment that there is an arguable case of uncertainty in the description of the possible members who may be given entry to the group in the future. These are envisaged by clauses 4 to 6 of Attachment A. They may or may not be admitted to the group at the discretion of KPC elders. Leaving to one side the arresting character of the stated criteria of cl 4 (prior attendance and participation in KPC meetings etc), there is nothing to suggest that the discretions given are a product of, and are to be informed by, the traditional laws acknowledged and the traditional customs observed by the aboriginal peoples holding the native title rights and interests in question. The clauses may well be vulnerable at this point for this reason.
33 What clauses 4 to 6 do reveal, though, is that the group as presently listed does not contain all of the persons who are said to be the actual holders of native title. The clauses acknowledge there are persons who are not presently members of the claim group. The application purports to assert a “capacity” through clause 4 to 6 to add other members albeit on some discretionary basis. That this appears to be so becomes the more apparent when one has regard to the application (Part A2 of Form 1) and the accompanying affidavit. The former asserts the present claim group to be members of the KPC while the accompanying affidavit describes the claim as being “on behalf of KPC members of the Claim group and for Kokatha people”: emphasis added. Further, it has been asserted in submissions that Mr Reid is able to add thousands to the group. Yet it is also the case that persons whom Mr Reid and Western Desert elders have acknowledged in the past (e.g. at Spear Creek) as Kokatha representatives, are not now within the group. That this is so appears to be more related to disagreement about the conduct of the Kokatha Native Title claim, than to whether or not they are properly to be characterised as Kokatha people. The explanation given for their exclusion is said to depend upon whether “Mr Reid being the Custodian is the only person who has the right to bestow Native Title Claim to the claim group”. Because those in the present Kokatha claim group have not formally recognised this, they have no potential, so it is said, to acquire native title right and interest. I merely comment that this assertion envisages a state of affairs at quite some remove from what is said in the application about authorisation and what is required by the provisions of s 61(1) of the Act. It also is inconsistent with the claim group description.
34 The metes and bounds of the claim group membership – who must comprise all the actual holders of the native title rights and interests – are fundamentally uncertain on the material before me and made the more so by the acknowledged “capacity” to enlarge the group membership under clauses 4 to 6 of Attachment A. What is clear is that the presently listed members of the claim ground are not perceived to be all the persons who actually hold native title. The best that can be said is that they are part of such a group. Neither the application nor the evidence provide certain guidance to permit ascertainment of who are the other actual native title holders who, together with the listed members, are said to be all of the holders of native title rights and interests in the claim area.
35 I would add that it is unsurprising that the definition of the group itself suffers the above vices. Mr Reid’s claim seeks to replace the Kokatha Native Title claim. The claim group itself reflects a house divided. The consequences of this becomes the more apparent when one turns to the authorisation requirement: cf the comments of Mansfield J in Landers at [38].
36 I consider that the application does not comply with the requirements of s 61 of the Act.
AUTHORISATION
37 The evidence on authorisation has been set out above. While the Form 1 suggests three distinct bases of authorisation – (i) self-authorisation, (ii) authorisation by Elders of surrounding Western Desert Tribes and (iii) authorisation by KPC members at a meeting on 17 March 2007 – the application itself does not betray whether these are intended to be alternative or cumulative. What is said in the Form 1 is not replicated precisely in the accompanying affidavit. No reference is made to self-authorisation. I note in passing that (i) there is no evidence provided by Mr Reid that the enumerated claim group acknowledge his power of self-authorisation; and (ii) Mr Reid has attempted to secure the signatures of some, but by no means all, of the listed claim group both to a copy of the list and to an attached claim map – both unnecessary steps if Mr Reid could self-authorise. Equally in Attachment R, reference is made to Elders at the Spear Creek meeting and to the fact that some of those “have now authorized Mr Reid to attend to Kokatha Native Title matters”. It is not at all clear whether these Elders were Western Desert Elders (as para 3 of Part A2 of Form 1 might suggest), or were Kokatha Elders (as the Attachment R comments on the KPC meeting would suggest).
38 In this state of affairs it is, in my view, unsurprising that the State has challenged Mr Reid’s authorisation. It contends that the multiple pathways relied upon are confusing, internally self-contradictory and incapable of meeting the requirements of the Act.
39 Such illumination as has been provided by Mr Reid’s legal advisor is contained in the following submission:
“In summary, there seems to be a reasonable amount of clarity brought to the context in which each type of authorization arises … Mr Reid’s authorizations to bring the Kokatha Nation Claim fundamentally derives from S 251B(a) authorizations given by prior Kokatha people including prior custodians ‘brothers under the law’, and also affirmed by Kokatha people in the western desert surrounds who went through the law with Mr Reid and subsequently witnessed what happened to him and how he eventually came by the Custodianship. Those in the claim group accept and have extended it as their own authorization by S251B(b) methods that Mr Reid has the authority to deal with Native Title matters on their behalf. The Crown at point 48 and elsewhere in saying that the claim is to be authorized by ‘all persons who … hold the common or group rights.’ The person who fundamentally holds the common or group rights of all Kokatha people is the Custodian himself (wadi miri wadi) and Mr Reid (and his successors) are in the claim group (if this amendment is made). Counsel opinion is needed as to the extent to which this means Mr Reid can self-authorise or whether other living members of the claim group are also required to do this (who are all incidentally KPC members), which decision may rest on a further understanding of the custodianship e.g. whether it is ever depleted by giving title to others or whether it remains in tact as a super-structure none the less). Mr Reid has gone ahead to obtain signatures of Kokatha people in the claim group nonetheless, in case this is also required. He may also need more formal contracts with others who may not wish to become KPC members, that they also acknowledge his custodianship and accept the rules of entry to the claim group. Counsel opinion is also needed as to whether any self-authorisation might offset the need for the names of the prior custodians to also be placed in the claim group (since Mr Reid is effectively a living ancestor (wadi miri wadi). Counsel has also been asked to contemplate the extent of Mr Reid’s power as manager of the Custodianship to insist that descendents join the KPC. [sic]”
(Original emphasis)
40 At best, the submission betrays considerable uncertainty on Mr Reid’s part as to his right to self-authorise. Even accepting that he may be the only person competent to be the applicant for native title consistent with traditional laws and customs (i.e. as Custodian), this, on the material before me, by no means carries with it the arguable conclusion that others do not have native title rights and interests – the entire application is premised on the contrary being the case – or that Mr Reid has authority, based on any evidence at all of acknowledgement or otherwise by the claim group, to bring such a claim in virtue of a right of self-authorisation had under traditional laws and customs.
41 As Mr Reid’s conception of his application has evolved, it has revealed a fundamental doubt as to its character and as to his place in it. That doubt is revealed in the submission above. It explains both the failure to rely on self-authorisation in the accompanying affidavit and the unacceptable lack of clarity in the evidence of authorisation.
42 Mr Reid’s participation in the North Stirling and Spear Creek meetings in relation to the Kokatha Native Title Claim cast further doubt on the power now being claimed. On the material before me, in light of (a) the terms of the application (which assert that others beyond Mr Reid who constitute the enumerated claim group have native title rights and interests in the claim area and have traditional physical connection with the claim area: see Sched M); (b) the lack of evidence of the claim group acknowledging a traditional process of decision making permitting such a self-authorising decision (cf s 251B(a)); (c) the apparent contradiction in the unexplained proposition that a single person holds the communal or group rights and interests possibly to the exclusion of all others (at least for authorisation purposes); and (d) the evident uncertainty in - hence the speculative character of – the underlying foundation of the claim made, I am satisfied that it cannot arguably be said to satisfy the requirements of s 61(1) of the Act as it relates to the amended application of present concern.
43 The evidence that has been put on by Elders of the Western Desert region cannot of itself constitute authorisation of Mr Reid for the purposes of s 61 of the Act. The relevant authorisation is that by “all the persons … who … hold the common or group rights”. While that Elders’ evidence may in fact provide some possible support for Mr Reid’s assertion that he possesses the authority he claims, it does not assist in determining the present motion. It is not addressed to the deficiencies and contradictions in the application itself, in the affidavit evidence and in the supporting submissions. Importantly, but understandably, it does not address the s 61(1)/s 251B(a) requirement as it might apply to the claim made in the application.
44 The supposed authorisation by a non-traditional means, i.e. by resolution at a KPC meeting, can be dealt with shortly. I have referred to the KPC above, to its constitution and to the terms of its application form. I equally have referred to the KPC meeting relied upon.
45 The significance of the KPC in the application is mentioned with disarming frankness in the submissions on the motion made by Mr Reid’s legal advisor:
“… it is preferred that members of the claim group also be members of the KPC as this provides a neat vehicle for management of the claim group, in particular a screening process for creating a valid claim group membership, (so that none will hold back others from achieving valid native title as a group), an administration to record claim group details relevant to fair trust distribution. Similar records will need to be taken if people join the claim group without joining the KPC.”
46 Attachment A to the application indicates that the listed members of the claim group are KPC members. The KPC constitution ties membership to acceptance by Mr Reid. The KPC, though, is not a holder of native title rights and interests. Neither can it authorise a native title claim: cf Briggs v Minister for Lands for the State of New South Wales (2004) 209 ALR 75. A native title group whose members are the members of an incorporated association may, where there is no relevant and mandatory traditional decision making process applicable to the making and conduct of a claimant application, agree to and adopt a process for those purposes: see s 251B(b) and Bolton v State of Western Australia [2004] FCA 760 at [44]. There is no reason in principle to prevent them agreeing to, and adopting a process which utilises a meeting of their association. But, as French J indicated in Bolton at [44], the s 251B(b) requirement necessitates that the authorisation process must be able to be traced to a decision of the native title group who adopt that process.
47 It is at this point of tracing back that the alleged authorisation’s ineffectiveness becomes apparent. While there is evidence that the less than 20 of the 103 members of the claim group who were present at the meeting voted unanimously for the application to be made, there is no evidence at all that such notice of the meeting as was given, advertised other than that an AGM was to be held. There is nothing to suggest that the group members were being asked to agree to and adopt a non-traditional process for authorising a claimant application. This would, of itself, be enough to reject the legitimacy of the claimed authorisation process. Further, and in light both of the evidence on notice and of the limited attendance, there is no reasonably arguable basis on which one could infer that the meeting was fairly representative of the claim group: see Boltonat [46]. There is not, in my view, any arguable basis for contending that the meeting was in the circumstances adequate to satisfy the requirements of s 251B(b).
CONCLUSION
48 For the above reasons I have ordered that the application be struck out under s 84C of the Native Title Act.
49 I will order that my order suspending the above order be vacated.
COSTS
50 Both the State of South Australia and the ALRM seek orders that Mr Reid pay their respective costs of the proceeding or else of the strike-out motion.
Applicable principles
51 The Court’s general discretion to award costs is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). It is well accepted that the general discretion conferred by s 43 is absolute and unfettered but that it must be exercised judicially and not on grounds unconnected with the litigation: see Cretazzo v Lombardi (1975) 13 SASR 4 at 11; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 732. In the exercise of that discretion the usual principle applied is that ordinarily costs follow the event so that a successful litigant receives costs in the absence of special circumstances justifying some other order: Ruddock v Vadarlis (2001) 188 ALR 143 at [11].
52 That usual principle has been displaced by s 85A of the Native Title Act which provides:
“(1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.
Unreasonable conduct
(2) Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.”
53 In McKenzie v State of South Australia [2006] FCA 891 at [8] I referred to the case law on s 85A. Here I need only repeat what I said there:
“The most authoritative statement of the matters which should inform the exercise of discretion in awarding costs in light of this section was given by Lee J in Ward v Western Australia (1999) 93 FCR 305, in comments later endorsed by the Full Court in De Rose v State of South Australia (No 2) [2005] FCAFC 137. His Honour noted first, that s 85A(1) is intended to remove the expectation that costs will follow the event but that despite this, the Court retains its discretion as to costs unlimited by subrule (1); secondly the ‘unreasonable conduct’ of the parties is not a jurisdictional fact which preconditions the exercise of the discretion and, conversely, s 85A(2) will not control or limit the discretion in subrule (1); thirdly, whilst the exercise of the discretion when making a costs order should be judicial, the starting point is that each party will bear their own costs.”
54 The one additional comment I should make is that it is not proper to use the power to award costs to punish either a successful or an unsuccessful party: cf Latoudis v Casey (1990) 170 CLR 534 at 566-567; or as a deterrent to other would-be applicants. I refer to these matters as Mr Reid clearly has been an irritant to others involved in the Kokatha Overlap Proceedings (SAD 6013 of 1998) and his stances and actions have, probably, in some degree impacted adversely upon their expectations in the conduct of those proceedings.
Consideration
55 The parties have filed written submissions on this matter. I do not intend to outline them in any detail. I have had regard to them. There are, though, two matters arising out of the submissions made by Mr Reid’s counsel to which I should refer lest he continue to labour under several obvious illusions. First, I did not strike out Mr Reid’s claim because of an alleged misunderstanding arising out of responses he made to questions I asked him and to which I referred above at [11] to [13]. Secondly, I did not strike out the application for the reason that I did not want it to get in the way of a scheduled case management conference.
56 It is clear that the application itself was a product of Mr Reid’s increasing dissatisfaction both with the conduct of the Kokatha Native Title claim and with the overlap proceedings (SAD 6013 of 1998) in relation to the Barngala applicants. Even though he had other avenues open to him to express his point of view after his unsuccessful attempt to strike out the Kokatha Native Title Claim, I am satisfied that his own application was brought in good faith and I am satisfied that as a litigant in person for all practical purposes, he acted reasonably in instituting the proceedings even though the application itself was misconceived when considered in light of the distinctive requirements of the Native Title Act. I am not prepared to assume in light of his previous involvements in proceedings relating to the Kokatha Native Title claim that he should be regarded as adequately versed in the mysteries of the Native Title Act and hence as bearing the risk of his misconceptions. Further, I am not satisfied that the timing of his application was informed by some improper motive and in particular that of disrupting the conduct of other proceedings to the extent of any overlap: see s 67 of the Act. I accept that health considerations and the paucity of advice and assistance go far to explain the timing of the application.
57 However, it is the case that prior to the strike out motion the State pointed out to Mr Reid the deficiencies in his application as it did subsequently in the materials filed in support of the motion. For its part the ALRM asserted throughout that the application was fundamentally flawed and could not be remedied by amendment.
58 The strike out motion was filed on 3 July 2007. This brought s 84C(2) into play. I was required to consider the motion before any further proceedings took place in relation to the application. It is apparent from what transpired at a directions hearing several weeks later that Mr Reid had been assisted by a legally trained anthropologist who apparently had arranged some (unspecified) legal advisers for him. When the motion came on for its listed hearing a recently instructed lawyer appeared for Mr Reid. He sought an adjournment. He said that if the application had merit further submissions would be made. If not it would be discontinued. I adjourned the hearing of the matter for three weeks.
59 What in my view is abundantly apparent is that such assistance as Mr Reid appears to have received has done little to facilitate the orderly resolution of the strike out application. The submissions put on by his legal adviser are testament to this.
60 A clear purpose of the s 84C procedure is to avoid the further incurring of expenses in relation to an application that is fatally flawed, albeit expense will be incurred on the strike out motion itself. As one would have expected the State has acted promptly in this matter and to that extent the policy of s 84C has been effectuated. This said, I am not persuaded that in the circumstances either the State or the ALRM, having so brought the matter to an end, should as well be awarded the costs of the motion itself.
61 I do not go so far as to say that, where a strike out motion is brought, a native title claimant is entitled as of course to have that motion determined without fear of an adverse costs order: cf McKenzie [2006] FCA 891 where costs orders were made on an application to discontinue under the shadow of an apprehended strike out motion. Each case must depend on its own circumstances. In the present matter I attribute particular importance to Mr Reid’s being an unrepresented person who received spasmodic legal and other assistance which clearly was unequal to the challenge presented by the strike out motion; the motion was brought within a very short period after the filing of the application and the matter was dealt with expeditiously because of its potential to impact on the overlap proceedings. Mr Reid did not capitulate in the face of the flaws indicated to him by the State. He clearly erred in so doing. On balance, though, I do not consider that he so unreasonably caused the State and the ALRM to incur costs in connection with the conduct of the proceeding, or otherwise so acted as to warrant an adverse costs order.
62 Accordingly, I will make no order as to costs.
63 I would add this. Both the State and the ALRM in their submissions sought a costs order, inter alia, for the purpose of providing a clear message to any further potential native title claimants that it is necessary to ensure that matters of form and procedure are strictly to be adhered to when lodging claimant applications. As I earlier indicated, I do not regard deterrence to be a permissible reason for a costs order. This said, the fact and circumstances of this successful strike out motion ought be of no little interest to persons who have made, or who are contemplating making, claimant applications in relation to claim areas that overlap that in the Kokatha overlap proceedings.
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I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. |
Associate:
Dated: 21 September 2007
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Counsel for the Applicant: |
Mr E Fardone |
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Solicitor for the Applicant: |
Fardone & Co |
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Counsel for the 1st Respondent Group: |
Mr C Kourakis QC and Mr S McCall |
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Solicitor for the 1st Respondent Group: |
Crown Solicitor’s Office |
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Counsel for the 2nd Respondent Group: |
Mr M Steele |
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Solicitor for the 2nd Respondent Group: |
Aboriginal Legal Rights Movement Inc. |
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Date of Hearing: |
17 August 2007 |
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Date of Judgment: |
21 September 2007 |
