FEDERAL COURT OF AUSTRALIA

Starkey v State of South Australia [2011] FCA 456

THE COURT ORDERS THAT:

1.    Ningil Richard Reid cease to be a party to this proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR DECISION

1    This application under s 61 of the Native Title Act 1993 (Cth) (the NT Act) has a long history. It is set out below. The present claim group, described as the Kokatha Uwankara Native Title Claim group (the KU claim group), authorised the four persons comprising the applicant to apply on their behalf to make the application. The KU claim group comprises members of the Kokatha, Barngarla and Kuyani communities, all of whom have asserted native title rights and interests in the claim area. Their collective agreement to bring this claim, and their collective authorisation of the four persons comprising the applicant, was made at a meeting at Port Augusta on 14 December 2008.

2    One of the members of the KU claim group is Ningil Richard Reid. He is accepted as a senior law man of the KU claim group. He is also accepted as a senior law man, in particular, of the Kokatha community.

3    As required by the NT Act, the application was given to the Native Title Registrar who duly gave notice of the application: ss 63 and 66. As a result, a number of persons and entities have become, or have applied to become, parties to the application under s 84 of the NT Act.

4    Mr Reid, notwithstanding his status within the KU claim group, by notice given on 13 January 2009 sought to become a party to the application, in essence as a respondent party. As he gave that notice within the notification period fixed by the Native Title Registrar, which expired on 20 January 2010, and as Mr Reid apparently falls within the terms of s 84(3)(a)(ii) of the NT Act, he is by force of s 84(3) apparently a party to the application: see the further discussion at [36] and [65] below.

5    The issue before the Court is whether Mr Reid should be permitted to remain as a party to the proceeding, or whether it should be ordered that he cease to be a party, pursuant to s 84(8) of the NT Act.

Background

6    The Kokatha People originally instituted their own native title determination application (SAD 6013 of 1998) which covered an area including the KU claim area. That claim overlapped with the Barngarla People native title determination application (SAD 6022 of 1998) and with a further native title determination application by the Kuyani People (SAD 6004 of 1998).

7    The solicitors for each of the Kokatha People, Barngarla People and Kuyani People at some point jointly approached the Australian Legal Rights Movement Incorporated (ALRM), and then South Australian Native Title Services Inc (SANTS), to conduct dispute resolution assistance to resolve their overlapping claims. The ALRM, and subsequently SANTS, are the native title representative body for South Australia under the NT Act.

8    On 14 December 2008, a meeting was held at the Standpipe Hotel in Port Augusta. At that meeting the KU claim group, comprising the Kokatha People, Barngarla People and the Kuyani People resolved by a very substantial majority to authorise a new single claim in relation to the overlap area and that the original Kokatha People application (SAD 6013 of 1998) be withdrawn.

9    The current application, made on behalf of the KU claim group was filed on 18 June 2009, and the original Kokatha People claim (SAD 6013 of 1998) was discontinued on 20 August 2009.

10    The KU claim area is land previously covered by the separate claims of the Kokatha People, Barngarla People and Kuyani People communities so far as they overlapped. It is an extensive area north of Port Augusta with the eastern side of Lake Torrens forming much of its eastern boundary and the western boundary being the boundary of the native title determination application the Gawler Ranges native title claim (SAD 6020 of 1998).

11    On 22 August 2009, the Kokatha Uwankara application was registered by the National Native Registrar. The claim was referred to the National Native Title Tribunal (NNTT) for mediation. On 8 October 2009, the Court terminated the referral to the NNTT for mediation, and directed the parties to confer with a view to presenting a timetable and process for the provision of connection evidence and its assessment by the State of South Australia (the State). That was done with the concurrence of the parties. They then anticipated that they would resolve the issues between them by agreement.

12    At a subsequent directions hearing on 31 March 2010, the Court was informed by the State that significant progress in negotiations had been made towards reaching agreement on the terms of a consent determination. The claim has not proceeded to that point yet, in part at least because Mr Reid had become a respondent party to the claim and opposes the claim.

13    It is helpful to note Mr Reid’s actions in relation to the earlier claim of the Kokatha People (SAD 6013 of 1998).

14    As noted above, Mr Reid is acknowledged as a senior member of the Kokatha People and so of the KU claim group. The KU claim group recognises him as a member of the KU claim group and his status within the group. However, he has continued to dispute issues surrounding the authority of the Kokatha People to have made the earlier claim (SAD 6013 of 1998), and of the current applicant to make the current native title claim over the application area on behalf of the KU claim group.

15    In relation to the earlier application of the Kokatha People (SAD 6013 of 1998), on 24 November 2003, Mr Reid, by notice of motion, sought orders pursuant to s 84C of the NT Act striking out that earlier application. The applicant in that claim consisted of Roger Thomas and Daniel Clifton on behalf of the Kokatha People. Mr Reid said that they were not authorised to bring that native title claim on behalf of the Kokatha People. On 22 July 2004, that motion was dismissed, as the Court was not persuaded that the Kokatha People had not authorised that claim as required by s 61 of the NT Act or that it should be struck out: Thomas v South Australia [2004] FCA 951.

16    On 21 May 2004 a meeting was held at Spear Creek as a part of the Central West Mediation Strategy (a strategy directed towards resolving intra-indigenous disputes over what is now the current application area). The material records that, at that meeting, senior Kokatha law men, including Mr 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 Mr Thomas, Mr Reid and Mr Starkey. It appointed Mr Thomas as the representative responsible for the Kokatha People native title application and all related matters, and Mr Reid and Mr Starkey as the representatives responsible for all Aboriginal law, culture and heritage. Hence, it may be seen that at this point Mr Reid was then recognised as a senior traditional elder of that native title claim group. He now disavows any approval he gave to Mr Thomas. He also describes himself as a dissentient member of the Kokatha People claim group.

17    On 8 October 2004, at a further meeting at the Standpipe Hotel in Port Augusta, a further agreement was reached by senior law men and women of the Kokatha People in relation to the then claim area of that claim, concerning Mr Reid’s continued involvement in that claim. The agreement states:

The Kokatha Tjilpa Tjuta and Kokatha Waddis have decided that the Agreement reached at Spear Creek in May 2004, recognizing Ningel (sic) Richard Reid as Number 2 man to speak for laws and customs of the Kokatha people, should be rescinded…

Ningel (sic) Richard Reid must stop making trouble in the Federal Court. The Applicants for the Kokatha claim Roger Thomas and Daniel Clinton were authorized to make the claim at a meeting in January 1999. That authorization has not changed.

The Reid family is always welcome in the Kokatha native title claim. The Reid family is Kokatha and continues to be part of the native title claim group.

18    Further, the agreement appointed Mr Thomas as the representative responsible for that native title application and all associated matters, and Mr Starkey and Michael Dingaman as the representatives responsible for all traditional Aboriginal law.

19    Mr Reid did not then sit idly by. He brought a separate native title determination application as the sole applicant (SAD 85 of 2007) over an area which wholly overlapped the Kokatha People claim area. His application was dismissed by Finn J on 17 August 2007 pursuant to s 84C of the NT Act: Reid v South Australia [2007] FCA 1479. Finn J found that there was insufficient evidence to show that Mr Reid was authorised to make the application to satisfy the requirements of s 61(1) of the NT Act. His Honour noted that neither Mr Thomas nor Mr Starkey, who were acknowledged in the Spear Creek agreement to be “representatives of the Kokatha people”, were named in the application.

20    In separate proceedings in the Supreme Court of South Australia (Action No 1294 of 2007), Kelly J has made orders relating to the application of compensation payable to the Kokatha People pursuant to agreements reached with Western Mining Corporation and Kistler Aerospace. On 20 February 2009, her Honour ordered that the funds payable pursuant to the compensation agreements be held in trust for the Kokatha native title claim group (as then identified in SAD 6013 of 1998) and that the Kokatha Mulla Nations Land Council Association Incorporated (an association formed to represent the interests of the Kokatha People claim group in proceeding SAD 6013 of 1998) be appointed as trustee of the funds. That order was apparently made to ensure the proper use of those funds, previously held in trust by Mr Thomas and the Kokatha People’s Community Incorporated (a body of which Mr Reid is a perpetual Chairperson). At the time of those orders, the Court also endorsed an agreement entitled Terms of Compromise. That agreement contained a clause by which Mr Reid undertook “to desist from all actions to impede the consent determination of Native Title process in the current Kokatha claims”.

21    Despite those events, Mr Reid has nevertheless continued to pursue his personal position by his Form 5 application to be joined as a respondent party to the current Kokatha Uwankara claim.

The CURRENT ISSUE

22    As noted above, Mr Reid gave notice within the notification period, and he apparently meets the criteria by which he would become a party to the application. The issue before the Court is whether he should remain a party to the proceeding, or whether he should be removed under s 84(8) of the NT Act.

23    Mr Reid’s Form 5 application provides the following basis for which he seeks to be joined as a respondent party:

I respond because I am the sole Kokatha Custodian who possesses the traditional Kokatha native title rights and interests. As such, I have prime responsibility for upholding the Law, and protecting it for cultural survival. The extent of this claim does not cover Kokatha lands. Its form gives a false impression of Kokatha Law/Title and is particularly false because it contains an aboriginal ancestor who never lived in Kokatha lands and others who though they did live on Kokatha land were never brought up Kokatha. On the other hand it omits some Kokatha ancestors in the claim area from whom [Kokatha People’s Community Incorporated] members and others descend. It allows [BHP Billiton] to dominate the aboriginal people of the region through the applicants chosen and ignores my offer made at the last Cooinda Hall meeting to be applicant (along with my sons). The claim in its present form would rewrite Kokatha Law and History, support misrepresentation and destroy the culture.

24    The supporting material indicates that Mr Reid claims that he is the sole custodian of Kokatha traditional law and customs, and thus he alone is the repository of all traditional authority for the Kokatha people. That was confirmed in submissions, although the word “prime” appears in his Form 5 application.

25    At the hearing, the solicitor for Mr Reid maintained that Mr Reid claims he is the sole person that holds native title on behalf of the Kokatha People, and thus he is the only person who can establish connectivity with the KU claim area on behalf of the Kokatha community, and who can distribute the benefits of native title to the Kokatha People. He says his permission is routinely needed, and is sought, for any benefits of the land to be distributed either on a temporary or permanent basis. Mr Reid contends that he is the last of his kind. However, he says that does not mean that the Kokatha culture ceases with his death, as it will be continued by the regional council of tjilipis and traditional owners. In other words, he does not claim to be the holder of native title rights and interests over the present KU claim area to the exclusion of all others. He appears to accept that the claim area is held by the Kokatha People (possibly with the Barngarla People and the Kuyani People, who together with the Kokatha People make up the KU claim group). His claim on behalf of the Kokatha People is that he is the only person who can speak for, or decide for, them so that until his death he alone can authorise on their behalf the bringing of a claim under s 61 of the NT Act. It may be remarked that this position is much the same proposition that Finn J did not accept in Reid v South Australia [2007] FCA 1479, albeit by reference to the description of the claim group in that matter.

26    Mr Reid further disputes that Mr Starkey is a traditional Kokatha lawman and custodian, and says that bringing the claim in his name as one of the persons constituting the authorised applicant is false and fraudulent. Mr Reid asserts that he alone is the person who legitimately can bring such claim. He also asserts that he and the tjilipi have not been consulted in relation to the KU claim. He therefore applied to be joined as a respondent party so that the correct people can be heard, and that the false and fraudulent claim does not succeed in destroying the real culture of the Kokatha people.

27    In addition, Mr Reid alleges that there has been fraudulent behaviour by Mr Thomas and Mr Starkey as the applicant first in their dealings with BHP Billiton, and second in allegedly stealing traditional objects to misrepresent that they are traditional land owners. He further alleges that the State, the NNTT, the ALRM and SANTS have also behaved fraudulently. In particular he raises a concern that these entities have not properly looked to the Kokatha People interests as against the interests of BHP Billiton. Those allegations are peripheral to the principal issue as discerned from the discussion above. It is not necessary to further address them. It is, however, appropriate to observe that, in the extensive material advanced by Mr Reid, there is nothing which provides any sound evidentiary foundation for those allegations.

Evidentiary Matters

28    The Form 5 application was accompanied by a supporting affidavit of Mr Reid sworn 11 January 2010. Further supporting affidavits of Mr Reid, sworn 13 January and 6 April 2010, were also filed. An affidavit of Joanne Fryar, the solicitor of Mr Reid, sworn 9 April 2010 and written submissions filed 14 May 2010 (amended by correspondence dated 15 May 2010) are also relied upon by Mr Reid in support of his application to remain a respondent party to the proceeding.

29    At the hearing two folders of documents, entitled “Evidence Folder 1 (To Richard Reid being the sole Kokatha Traditional Land Owner and Custodian)” and “Evidence Folder 2 (Re Fraud and Interference in Traditional Kokatha Land Boundaries and the Land Ownership & Custodianship of Richard Reid)” were tendered by Mr Reid and marked for identification, as they had not been provided to all parties for consideration prior to the hearing. Evidence Folder 1 became MFI A and Evidence Folder 2 became MFI B. Further, two letters of support for Mr Reid were tendered and also marked for identification: a letter to the Court from Murray George dated 9 April 2010 (MFI C) and a letter to the Court from Murray George, Rama George and Kangini George dated 20 April 2010 (MFI D).

30    There were a number of objections made by the State and SANTS (at the hearing and in subsequent written submissions) to the admissibility of the affidavit material, as well as MFI A, B, C and D.

31    I agree that the affidavits of Mr Reid and Ms Fryar contain much that amounts to statements of opinion, unsubstantiated assertions, hearsay, and irrelevant information, and that they refer to privileged documents that were apparently produced as part of without prejudice negotiations between the State and SANTS. It is also clear that they were not prepared with an eye attuned to the difference between fact and argument.

32    In addition, MFI A and MFI B were provided without any verifying affidavits. The documents are also often incomplete. In many instances, the descriptions of the documents in the index (which in most cases comprise lengthy commentary) are, upon review of the documents to which they refer, put simply largely inaccurate and are inappropriate as they are more in the form of submissions. MFI C and MFI D were also not accompanied by an affidavit. They were letters addressed to the Court as unauthorised and unsolicited submissions. Sending such material without an order authorising it, and in any event, without copying other interested parties is not proper. They do not constitute evidence.

33    However, as I indicated at the hearing, it is not desirable to resolve this sort of application on technical evidence issues only. There is a duty on the Court not to let formality stand in the way of justice: see AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [22] per French CJ. Notwithstanding that Mr  Reid is legally represented, so that the Court and the other parties are entitled to better presented material, I shall treat that material as presented by an uninformed litigant in person. In the interests of justice, I will consider the present issue by reference to the material provided, to the extent that I think it is properly admissible in form and is relevant to the Court in determining the issue, and will treat the balance (other than privileged material) as submissions.

34    The Court has the power to waive the rules of evidence if the parties consent and the application of those rules would cause or involve unnecessary expense or delay: ss 190(1) and 190(3)(b) of the Evidence Act 1995 (Cth). I am satisfied that making rulings seriatim on the admissibility of the exceedingly deficient material, and requiring the material to be redrafted and refiled would involve unnecessary expense and delay. The State and SANTS have indicated that they are willing to allow the Court to have regard to all the material that is not privileged, and to give it such weight as it deems fit, for the purpose of determining the matter. That is what I have considered is the appropriate course.

Consideration

35    Section 84(3) of the Native Title Act provides that:

Another person is a party to proceedings if:

(a)    any of the following applies: 

(i)    the person is covered by any of subparagraph s 66(3)(a)(i) to (v);

(ii)    the person claims to hold native title in relation to land or waters in the area covered by the application;

(iii)    the person’s interest in relation to land or waters may be affected by determination of the proceedings; and

(b)    the person notifies the Federal Court, in writing, that the person wants to be a party to the proceeding:

(i)    within the period specified in the notice under section 66; or

(ii)    if notice of an amended application is given under paragraph 66A(1)(e) – within the period specified in the notice under that paragraph.

36    Mr Reid may fall within the terms of s 84(3)(a)(ii) and may also fall within the terms of s 84(3)(a)(iii). He has given notice in writing by his Form 5 application within the period set out in s 84(3)(b)(i).  What follows from that is that Mr Reid is arguably a person covered by s 84(3) and, by force of that subsection, is a party to the proceedings. It is not necessary to finally decide that question. As I have indicated, it is clear that he himself does not claim to hold native title rights and interests in relation to the claim area of the KU claim to the exclusion of all others, but his Form 5 application indicates that he says that, as a member of the Kokatha People, his (asserted) primacy in the KU claim group in relation to the claim area may be affected by determination of the proceedings because his primacy has not been recognised by the KU claim group. If it were recognised, he says, only he could authorise the bringing of the claim.

37    Section 84(5) of the NT Act also provides an avenue for a person to become a party to an application. It provides:

The Federal Court may at any time 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 and it is in the interests of justice to do so.

38    Section 84(8) provides that the Court may at any time to order that a person, other than the applicant, cease to be a party to the proceedings.

39    Further, s 84(9) provides that:

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.

40    The question for the Court to consider is therefore whether, having regard to the terms of s 84(8) and (9), Mr Reid should be permitted to remain a party. The question relevantly might be posed by the terms of s 84(9)(a)(ii): whether Mr Reid’s interests are represented in the proceedings by another party. It is clear s 84(9)(a)(i) does not apply to him. However, Logan J said in Butterworth on behalf of the Wiri Core Country Claim v State of Queensland [2010] FCA 325 (Butterworth) at [12], that s 84(a)(i) and (ii) are expressed conjunctively. It was not argued that I should not follow that decision. Consequently, I do not think that s 84(9)(a)(ii) can apply in the present circumstances.

41    Section 84(9)(b) also does not apply. I have assumed, as did the parties, that Mr Reid has “interests” arising apparently by virtue of s 84(3)(ii) in the KU claim area which may be affected by a determination of the KU claim. For reasons which appear below, that may not be a valid assumption: see at [66] and [68].

42    However, that is not an end to the matter. Section 84(8) is not confined to the matters referred to in s 84(9). Logan J in Butterworth considered the position of particular persons wishing to become or remain respondent parties when the claim group acknowledged those persons as being part of the claim group. His Honour ordered that those persons cease to be parties under s 84(3) of the NT Act by exercise of the the Court’s power under s 84(8).

43    Logan J at [39] said:

It seems to me that the power given under s 84(8) is not constrained by the circumstances referred to in s 84(9). Section 84(9) to me provides particular circumstances where Parliament contemplates dismissal will be considered but that subsection is not exhaustive of the circumstances where the dismissal power can be exercised. As I have said, in this particular case, it seems to me on the evidence that the applicant is doing what the Native Title Act contemplates, which is representing all of the members of the native title claim group, including Mr Johnson and those others also descended from Mary Johnson. The Native Title Act to me also contemplates that there will be occasions when it will be necessary for an applicant to consult with a native title claim group. Consult does not equate with “be dictated to by a member of”. A member of a native title claim group, where a need for consultation arises, is entitled to be given an opportunity to be heard, nothing more and nothing less than that.

44    As to the wider scope of operation of s 84(8), some assistance is derived from Kulkalgal People v State of Queensland [2003] FCA 163 (Kulkalgal). Drummond J there said at [7]-[8]:

If, as appears to have occurred here, one of the members of the claim group, after the regular institution of a native title claim, becomes dissatisfied with the way his or her interests are being represented by the applicant on the claim, then the only avenue provided for by the [NT Act] is that contained in s 66B.  The dissatisfied claim group member can apply to the Court to have the applicant in the proceedings replaced.  But the section makes it clear that a member of a claim group who becomes dissatisfied, after the institution of the proceedings, with the way the applicant is conducting the proceedings can only make such an application if the dissatisfied person has the authority of all the members of the claim group to seek replacement of the named applicant.

The statutory scheme leaves no room for the principle referred to in cases such as John v Rees [1970] Ch 345 at 371 that a person represented in an action by a representative applicant under O 6 r 13 the Federal Court Rules can, if dissatisfied with the way the representative applicant is conducting the action, be joined as a respondent in the proceedings.

45    Section 66B(1) of the NT Act relevantly provides that:

One or more members of the native title claim group (the claim group) in relation to a claimant application…may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

(a)    one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

    (i)    the person consents to his or her replacement or removal;

    (ii)    the person has died or become incapacitated;

    (iii)    the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

    (iv)    the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and

(b)    the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

46    The material before the Court firstly shows that Mr Reid does not himself claim to be a member of a different claim group than that of the Kokatha People, or of the Kokatha People as part of the KU claim group, so his position is not one where he says that his interests as a member of a different and competing claim group may be affected by a determination of native title: cf Munn v State of Queensland [2002] FCA 486 at [8] per Emmett J; Worimi Local Aboriginal Land Council v Minister for Lands for New South Wales (2007) 164 FCR 181 at [16]-[17] per Bennett J; Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 at [24] per Mansfield J; Davis-Hurst v New South Wales Minister for Land and Water Conservation (2003) 198 ALR 315 per Branson J; Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 (Bonner) at [18] per Reeves J. Reeves J in that case at [19] pointed out that a person in that position, joined as a respondent party, could not use the status as respondent as an avenue to a determination of native title in that person’s favour, as s 61 of the NT Act is the only available avenue for such a determination: see Commonwealth of Australia v Clifton (2007) 164 FCR 355; Moses v Western Australia (2007) 160 FCR 148. Consequently, such a person as a respondent also cannot act in a representative capacity on behalf of others: Bonner at [19] per Reeves J.

47    Secondly, the material shows that Mr Reid’s concern is what is sometimes described as intra-mural. That is, his concern is not so much about whether native title rights and interests over the KU claim area are in fact held by the KU claim group, but that the internal process of the KU claim group have not been properly followed according to its traditional laws and customs. In essence, he says that the proper decision making process by which the KU claim group should have authorised the applicant to make the claim under s 251B of the NT Act was not followed, because (at least so far as the Kokatha community as part of the KU claim group are concerned) only Mr Reid under the traditional laws and customs could authorise the making of the claim. He further says he has not authorised the present application.

48    Although the decisions in Kulkagal and Butterworth are apparently on point, it is necessary to have closer regard to their particular facts and to the relevant statutory provisions to determine if, and how, they resolve the present issue. In Kulkagal, the person wishing to become a party in that matter applied to do so under s 84(5). She had not adopted the option apparently available under s 84(3). She was a member of the claim group. She became disaffected with the conduct of the claim by the applicant, authorised by the claim group, after it had been instituted. Drummond J based his decision upon the terms of s 66B, together with the scope of the authority of the applicant under s 62A, once the claim group had properly appointed the applicant. In Butterworth, the persons concerned had apparently become parties under s 84(3), although they were recognised as members of the claim group, because they were dissatisfied with the conduct of the claim by the authorised applicant. However, it should be noted that Logan J in Butterworth at [39] clearly indicated that he was exercising a discretionary judgment under s 84(8), and that there may be circumstances where a member of a claim group might properly become or remain a respondent party. In Kulkagal, Drummond J seems to suggest that there would be no such circumstances. These cases demonstrate that considerations relevant to joinder under s 84(5) are also relevant to an order made under s 84(8) that a person cease to be a party.

49    The significant point of difference in this matter is that Mr Reid appears not to have accepted that the applicant was authorised by the KU claim group to make the application at any time in accordance with s 251B of the NT Act.

50    Section 251B requires the authorisation of an applicant to be given by “all persons in a native title claim group” by one of two means. If there is a process of decision-making under the traditional laws and customs of the claim group, then the authorisation must be made in accordance with that process: s 251B(a). If there is no such process, then the members of the claim group must agree to, and adopt, a process for granting the authorisation: s 251B(b).

51    The application records, as it is required to do, the authorisation of the four persons comprising the applicant by a meeting of the KU claim group. It also includes the certification of the claim by SANTS under s 203BE(1)(a) of the NT Act that all the persons in the KU claim group have authorised the applicant to make the claim by the meeting of 14 December 2008 referred to in [1] above, and that the authorisation was given under s 251B(b) as there was no traditional decision-making process.

52    There are other decisions of the Court which may touch upon the issue.

53    Bidjara People #2 v State of Queensland [2003] FCA 324 (Bidjara #2) also concerned facts closely parallel to the present issue. A member of the claim group sought to be joined as a respondent party to an application under s 61 of the NT Act, relying upon the Court’s discretion under s 84(5). That person, like the applicant in Kulkagal, had become dissatisfied with how the authorised applicant was conducting the claim. The person had not taken advantage of the processes under s 84(3). Ryan J decided to permit her to be joined as a party. He said at [7]:

It is true that s 61(1) requires an applicant to be authorised by all the members of the native title claim group and s 66B enables an applicant to be replaced when he or she is no longer authorised by the claim group to make the application or to deal with the matters arising in relation to it. However, that section does not accommodate the situation which has arisen here, where the applicants retain the authorisation, as I understand it, of the majority of the claimant group, but there are one or more dissentient members of the group. In that event, it can hardly be contended that the claim should lapse. However, it would also lead to injustice if the dissentient members were thereafter denied a voice in the determination of the claim. They clearly remain persons whose interests may be affected by a determination in the proceedings within the meaning of s 84(3)(ii) or (iii). It would unnecessarily multiply proceedings to require those persons to institute their own claims. Accordingly, I consider, notwithstanding the views expressed by Drummond J in Kulkalgal People that such persons can be made parties pursuant to s 84(5).

54    The recognition of the breadth of the discretion in s 84(5) as informed by the decision of Bidjara #2 appears to be mirrored by the recognition of the breadth of the converse discretion in s 84(8) as discussed in Butterworth.

55    However, it is not clear to me how the fact of there being a few dissentient claim group members in Bidjara #2 might have meant that the claim itself should lapse. There is no reason why it should in this matter. Authorisation under s 251B, or re-authorisation under s 66B of a different person or persons as applicant under s 251B, requires authorisation either in accordance with traditional laws and customs, or in accordance with a decision-making process agreed to by the claim group. Unanimity of the claim group is not a pre-condition in either case, unless required under the particular traditional laws and customs or if otherwise has been agreed. That was not said to be the case in Bidjara #2. Nor, with respect, do I perceive that injustice would necessarily follow if “dissentient members [of the claim group] were thereafter denied a voice in the determination of the claim”. Indeed, the opposite might be the case. Section 62A of the NT Act contemplates the authorised applicant having control of the proceeding, and not the individual members, or any particular individual member, of the claim group. That is, in my view, to ensure the coherent and effective prosecution of the claim. If the approach espoused in Bidjara #2 were routinely adopted, any one or more dissentient members of the claim group would be able to become respondent parties to an application, even if the claim group as a whole according to its relevant decision-making process under s 251B had appointed the applicant and did not wish to remove and replace the applicant. The role of such dissentient members, in that event, would either be to assert their own status or role intramurally, or within the claim group, when that issue is not one to be decided on the application, or would be to assert that the claim should be handled in some other way. From the point of view of the other respondent parties, they would be faced with the problem of dealing not only with the authorised applicant but with dissentient members of the claim group who had become respondent parties. That process would make negotiated resolution of claims less likely. It would add to cost and delay. It would subvert the clear intention of s 62A of the NT Act to provide to respondent parties one person (or a group of persons) responsible for dealing with the claim on behalf of the claim group. From the point of view of the claim group itself, similar comments would apply.

56    The claim group is empowered by ss 251B and 66B to select from time to time the person or persons on their behalf who are to be the applicant and to fulfil the functions provided by s 62A. It is not part of the scheme of the NT Act, nor would it be consistent with the effective and efficient presentation and conduct of their claim, that individual members of the claim group who prefer a different approach or approaches should routinely be able to play a direct role in the presentation of the case both during its procedural stages or its evidentiary stages by becoming a separate party to the application.

57    Combined Dulabed and Malanbarra/Yidinji Peoples v State of Queensland (2004) 139 FCR 96 (the Combined Dulabed Claim) also concerned a dissentient member of the claim group. That case has strong factual echoes in Mr Reid’s current position. That person disputed the proposed evidence of the claim group (through an anthropological report) about the extent of the claim group because, he claimed, certain identified persons should not in fact be accepted as members of it as they were not sufficiently connected to the claim area. His application to be joined as a respondent party to the application to assert that position had been refused once: Combined Dulabed and Malanbarra/Yidinji Peoples v State of Queensland [2002] FCA 1370. At that stage, there was no evidence to support that person’s assertion. The timing of the application and its strategic purpose were also discretionary factors which influenced the Court. His second application for joinder under s 84(5) was also refused. At that time, the grounds of joinder included the dispute about the extent of the claim group (the same point as previously rejected). However, the contentions were more extensive. It was also argued that the claim group had not properly authorised the appointment of the applicant because the proposed respondent and another person were critical to a valid authorisation and had not participated in the authorisation decision. That, as I noted above, closely reflects Mr Reid’s position.

58    As to those matters, in the Combined Dulabed Claim, Spender J at [45] said that he preferred the view in Bidjara #2 to that in Kulkagal that s 84(5) left a residual discretion to allow the joinder of a dissentient group member as a respondent in certain circumstances. Nevertheless, he refused the joinder in his discretion because the evidentiary position (the lack of any evidence to support the assertion about the more limited claim group) was the same.

59    That native title application attracted a third application for joinder by four different dissentient members of the claim group under s 84(5): Combined Dulabed and Malanbarra/Yidinji Peoples v State of Queensland (2005) 214 ALR 306. Those persons asserted that their family interests had been shut out of the decision-making process, although they were recognised as members of the claim group, and that they were necessary participants in the authorisation process so that, in the absence of their participation, there had been no valid authorisation process by the claim group appointing the applicant. Kiefel J at [12] said of the power under s 84(5):

Assuming there to be power [to join a dissentient member of the claim group as a respondent party], one would expect that it would not be granted as a matter of course and upon assertions about lack of representation. There would at the least need to be shown a real difficulty in that person’s interests being represented.

60    Her Honour was not satisfied that the relevant interests were not being taken into account, or that any suggested changes to the genealogy would not be considered by the applicant, the relevant representative body, and the anthropologists engaged by the applicant.

61    In my view, those authorities on balance indicate that

(1)    there is no necessary legal impediment to a member of a native title claim group being joined, or remaining, as a respondent party to the claim, but

(2)    the circumstances in which a dissentient member of a native title claim group will be permitted to become a respondent party under s 84(5) or, having become a respondent party under s 84(3), will be permitted to remain a respondent party, will be rare.

It is not necessary to explore all the circumstances in which that may be permitted. The matters discussed above indicate why that is so.

62    Those reasons are fortified, in my view, by other provisions in the NT Act. Section 225 defines the concept of a determination of native title. Apart from deciding if native title as defined in s 223 exists in relation to a particular area, the determination must decide:

(a)    who are the persons, or each group of persons, holding the native title;

(b)    the nature and extent of the native title rights and interests;

(c)    the nature and extent of any other interests in relation to the determination area; and

(d)    the relationship between the rights and interests in paragraphs (b) and (c).

Clearly, the “interests” referred to in (c) are not native title rights and interests, because their extent is determined by (a) and (b). There is nothing in s 223, therefore, which requires the Court to address the intramural or internal relations of the holders of native title. The extent to which the Court must address that topic is expressed in ss 55 ff of the NT Act (referred to in [65] below).

63    It is also appropriate to observe that the definition of native title, and the requirements of a determination of native title, do not require the consideration of, or the resolution of, any intramural or internal issues about the respective status of, or relative responsibilities of, individual members of the claim group. There is therefore no reason routinely to recognise and give a voice to those within the claim group who take a different view about any such matters from that taken by the claim group through the authorised applicant.

64    Of course, it is necessary for the applicant to make out the due authorisation of the making of the claim by the applicant. That is required in the application itself, and may be (as here) supported by certification of the relevant native title representative body. If a respondent puts authorisation in issue, further evidence may be required, and s 84D(1) empowers the Court to require such evidence. It is significant, even in this context, that s 84D(3) and (4) empower the Court to hear and make a determination of native title notwithstanding that the application was not properly authorised to make it, to secure due prosecution of the application and the interests of justice. Section 84D was introduced by the Native Title Amendment (Technical Amendments) Act 2007 (Cth) in part to enable the Court to avoid the consequences of some defect in the authorisation process if the interests of justice require it, so that form should not conquer substance.

65    When a determination of native title is made, s 55 requires the Court to make such determinations as are required by ss 56 and 57. The Court is to decide whether the native title is to be held on trust by a prescribed body corporate and is to also inform the non-trust functions of a prescribed body corporate (as prescribed by, and with the functions specified by, regulations under ss 58 and 59) for the “common law holders” of native title (that is for the native title claim group who hold the native title rights and interests). Such a body must become a registered native title body corporate as defined in s 253, inter alia, by reference to s 193(2) or (4). In short, the prescribed body corporate must act in the best interests of all the claim group, and will no doubt from time to time have to address internal disputes about the status or entitlement of individuals within the claim group in relation to other members of the claim group. As I have indicated, determination of native title is not required to resolve such issues. Nor could it do so. It would be impossible to predict, even for a period of a few years into the future, the sort of decisions which the claim group through its prescribed body corporate might have to decide and which might affect the status or interests of one or more of its members in relation to one or more of the other members of the claim group. The Court could not predict which, if any members, of a native title claim group might disagree with others about matters relating to native title or its benefits in the future. Far less could it be expected to resolve them fairly and in accordance with law, but in an anticipatory way.

66    Indeed, having regard to that legislative structure, there is much to be said for the view that the persons referred to in s 84(3)(a)(ii) are persons who claim to hold native title in relation to the land or waters in competition with the claim group, rather than as members of it. There is also much to be said for the view that the “interest” referred to in s 84(3)(a)(iii) is an interest other than a native title right and interest (by comparison with subclause (ii)). In the latter regard, there is some significance to be noted of the use of the word “interest” in the singular, as compared to its plural use in s 225(c), which requires the determination of “the nature and extent of any other interests” in relation to the native title area.

67    However, it is not finally necessary to decide those matters. It was assumed by the parties that Mr Reid had become a respondent party to the application under s 84(3), so the question was whether he should cease to be a party by order under s 84(8). In my view, such an order should be made. As I noted above, he is recognised as a senior member of the Kokatha People and of the KU claim group. His interests in that regard are being addressed in common with those of the other group members. There are, moreover, sound practical reasons discussed above, particularly at [56], why he or indeed other members of the claim group should not be allowed to be or remain to be respondent parties, as highlighted by the consequential issues which would then follow, both to the members of the KU claim group and to the other respondents. Not least of those issues is the probable delay in, if not significant impediment to, negotiating an agreed outcome to the claim.

68    There may be circumstances where a particular person wishes to be recognised as a member of a claim group, but is not included. There may be other particular circumstances where an individual’s circumstances as a member of the native title claim group may need to be considered. The discretion to join such a person as a respondent party does exist, but in my view its favourable exercise to allow a member of a claim group to become a respondent party will be rare.

69    The particular feature of Mr Reid’s position is his assertion that the claim itself has not been duly authorised because he is the only person who can do so. I do not think his evidence to that effect is presently sufficient to treat him in a way which involves allowing him to remain as a respondent party. It is not necessary to refer in detail to his evidence, beyond his own assertions. It is hard to distil from the unsatisfactory material and cogent supporting evidence. He has not sought to explain fully why he should be allowed to go behind the agreements to accept the earlier decisions of the claim group or of the Kokatha People, to which he was a party. There may be more cogent evidence available to him, but it has not been identified. Significant time, money and resources have been invested in this claim. I am informed that these efforts are close to bearing fruit as a consent determination is within sight. Mr Reid, as a group member, will benefit from such a consent determination.

70    Accordingly, in my judgment, it is not in the interests of justice that he remain a party to the proceeding, as his continued status as a respondent will be likely to delay and interfere with the progress of the claim towards a consent determination, and there is not otherwise sufficient reason shown for him to remain a party.

71    There is one further reason which leads to that conclusion. It is an important one. There is an alternative procedural avenue available to Mr Reid to explore the strength of his contention that only he could have authorised the claim: s 84D(2)(c) of the NT Act. It provides for a member of the native title claim group to apply for an order under s 84D(1) requiring the applicant to produce evidence to the Court of the authorisation. That provision provides a vehicle for Mr Reid to raise his concern, without him remaining a respondent party to the application. If he were to make such an application, it would have to be supported by cogent admissible evidence, and would have to explain why he should not be held to his previous agreements. He will be faced with the existing evidence in the application as to the authorisation issue. Whether he does so, and what evidence he produces if he does so, is a matter for him. The short point is that he does not need to remain as a respondent party to be able to raise that concern. As I have discerned from the material he has produced in support of his case in this application, that is his main concern.

72    Accordingly, pursuant to s 84(8) of the NT Act, I order that Mr Reid cease to be a party to the proceedings.

Associate:

Dated:    9 May 2011