FEDERAL COURT OF AUSTRALIA

Laing v State of South Australia (No 2) [2012] FCA 980

THE COURT ORDERS THAT:

1.    The application by the applicant for the determination of native title is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BACKGROUND

1    This application, called the Naley Native Title Claim (the Naley Claim), was filed on 18 April 2012. It has prompted the present interlocutory application by John Graham and others (the Ngadju Applicants) for an order that it be struck out pursuant to s 84C(1) of the Native Title Act 1993 (Cth) (the NT Act) or be summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act).

2    The Ngadju Applicants are the applicants on behalf of the Ngadju People in their claim for determination of native title against the State of Western Australia (WAD 6020 of 1998) (the Ngadju Claim). The Ngadju Claim relates to an area of land in Western Australia proximate to the South Australian/Western Australian border. A portion of the Naley Claim covers the same area as the Ngadju Claim.

3    On 7 May 2012, the Court ordered that that portion of the Naley Claim which overlapped the claim area of the Ngadju Claim should be heard together with the Ngadju Claim. The Ngadju Claim, which is a long-standing one, has progressed very substantially to completion. Three tranches of Aboriginal evidence have been heard in 2004, 2009 and 2012 and a further tranch of expert evidence was heard in May 2012. At present, apart from oral submissions, the question as to whether native title exists in the Ngadju Claim area (excluding that which is not overlapped by separate claims WAD 6216 of 1998 and WAD 6243 of 1998) has been completed. Final written submissions have been filed. The final oral submissions are to take place on 24 September 2012. The need for the Naley Claim and the Ngadju Claim to be heard together, at least to the extent of the overlap, obviously presents a significant impediment to that process.

4    The Goldfields Land and Sea Council (GLSC) is the recognised native title representative body for the Western Australian Goldfields region under s 203AB of the NT Act. In that capacity it represents the Ngadju Applicants.

5    GLSC also represents the applicant in a separate claim brought by AD (deceased) and Others on behalf of the Mirning People against the State of Western Australia (WAD 6001 of 2001) (WA Mirning Claim). The WA Mirning Claim is brought by the applicant in that proceeding on behalf of a very considerable number of persons who fall within the description of the WA Mirning People, and includes a significant number of indigenous people who reside in both Western Australia and South Australia and who identify themselves as Mirning People. The Naley Claim also overlaps the WA Mirning Claim. Its existence is therefore significant also to that claim and to the GLSC as the relevant native title representative body for that claim.

6    There is a third claim under the NT Act which may also be affected by the belated Naley Claim. Kenneth Gordon Roberts and Others on behalf of the Far West Coast People have also claimed a determination of native title against the State of South Australia (SAD 6008 of 1998) (Far West Coast Claim). They have brought a claim for the determination of native title in respect of a significant area of land running east from the South Australian/Western Australian border along the coast a considerable distance to about Fowlers Bay. That claim comprises a consolidation of two previous claims, which significantly overlapped, brought separately by the Far West Coast People and the Mirning People. The history of those two separate claims and how they came to be consolidated is set out in the decision in Far West Coast Native Title Claim v South Australia [2012] FCA 733 (Far West Coast v SA (no 2)). That judgment related in part to an application of Robert Victor Miller, a Mirning man, unsuccessfully seeking an order that the former Mirning Native Title Claim (WAD 6016 of 1998) be reinstated as a separate application for the determination of native title under the NT Act, rather than be combined with the Far West Coast Claim.

7    The Naley Claim also overlaps the Far West Coast Claim.

8    Again, therefore, the Naley Claim has considerable significance to the further progress of the Far West Coast Claim in South Australia, being conducted through the South Australian Native Title Services (SANTS), the relevant native title representative body for South Australia.

9    As recorded at [9] of that decision, the Far West Coast Claim has also substantially progressed, so that any delay consequent upon addressing the Naley Claim in respect of the same claim area is a significant one.

10    The significance of the very recent Naley Claim overlapping those three long-standing claims arises from s 67 of the NT Act. It requires, in the case of overlapping native title determination applications, that the Court ensure that the overlapping claims are covered or dealt with in the same proceeding. Section 68 directs that there only be one approved determination of native title in relation to a particular area. It is obvious, therefore, that there are potentially long delays in the ultimate resolution of the Ngadju Claim, and also in relation to the Far West Coast Claim caused by the Naley Claim insofar as it overlaps each of those two claims.

THE STRIKE OUT APPLICATION

11    The Ngadju Applicants seek to have the Naley Claim struck out. Their application is supported by the Far West Coast Claim through the applicants in that claim (who are now respondent parties to the Naley Claim), and by the State of South Australia which is also, of course, a party to the Naley Claim.

12    Section 84C of the NT Act relevantly provides:

Strike-out application

(1)    If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.

Court must consider strike-out application before other proceedings

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

13    Section 31A of the FCA also provides for summary judgment if, relevantly, the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding: sub-s 31A(2). The concept of “no reasonable prospect of success” is described in s 31A(3) to mean something less than the claim being hopeless or bound to fail.

14    The principles applicable to a strike out application are not contentious. They are conveniently summarised in the decision of Besanko J in Brown v South Australia [2009] FCA 206 (Brown) where his Honour said that, in relation to s 84C(1) at [20]:

The propositions have been applied most commonly in circumstances where it is clear that the claimant group is a subgroup or subset or part of a native title claim group. Cases such as Tilmouth, Landers, Dieri People, McKenzie and Reid are all cases in which it was clear that the claim group was not a native title claim group. The cases also make it clear that caution needs to be exercised before concluding on a strike-out application that a claim group is a subgroup, subset or part of a native title claim group: [references omitted]. For example, it may be that a subgroup of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that subgroup may itself constitute a native title claim group: Hillig at [60] per Bennett J (see also the obiter observations of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [41]; Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) [3.130].

15    In Velickovic v Western Australia [2012] FCA 782 (Velickovic) McKerracher J said at [34]:

[A] native title determination application does not comply with s 61 NTA if it is clearly established that is not made by a native title claim group consisting of all the persons who according to their traditional laws and customs, have common or group rights or interests comprising the particular native title claimed. A subset of part of ‘what truly constitutes’ a native title group cannot itself be a claimant group for the purposes of s 61 (see for example Reid v State of South Australia [2007] FCA 1479) but equally caution should be applied in readily concluding that an alleged group is only a subgroup or part of a group for s 84 purposes as noted by O’Loughlin J in Risk v National Native Title Tribunal [2000] FCA 1589 (at [60]-[61]).

16    In this matter, the evidence on the strike-out application advanced on behalf of the Ngadju Applicants is principally contained in the affidavit of Dylan Parker of 7 June 2012, and in part in a subsequent affidavit of Daniel Jacobs of 23 August 2012. In addition, the applicant, Michael Alfred Laing in the Naley Claim has given notice of an application to amend the Naley Claim. The Court was directed to the proposed amended application exhibited to the affidavit of Mr Laing in the Naley Claim of on 31 August 2012, which exhibits the proposed amended application. Counsel for Mr Laing relied on two affidavits of Mr Laing firstly filed in the Ngadju Claim on 13 August 2012 and secondly filed in this application on 31 August 2012. The latter affidavit is different from his affidavit in the Naley Claim in support of the proposed amended application. There was no cross-examination of those three deponents.

CONSIDERATION

17    There were three contentions advanced by counsel for the Ngadju applicants:

(1)    the Naley Claim should be dismissed as it is clear that the application does not comply with s 61 of the NT Act, because the Naley Claim is not shown to have been made by a person authorised by all the persons who are said to hold native title by that native title claim group, being the descendants of one apical ancestor Gordon Charles Naley (the Naley Descendants), according to their traditional laws and customs, and so is not shown to be authorised as required by s 251B of the NT Act;

(2)    the Naley Claim is not made by a native title claim group or by persons authorised by all the persons constituting the native title claim group as required by s 61 and s 251B, because the Naley Descendants as a group are at best but a subset or a subgroup of the Mirning People comprising the relevant native title claim group; and

(3)    in the circumstances, the delay in making the Naley Claim is so great that, having regard to the prejudice caused and likely to be caused to the Ngadju Applicants, the Naley Claim should be struck out (or struck out at least as it concerns the overlap with the Ngadju Claim area) in the Court’s discretion.

18    The requirements of s 61 are clear enough. The relevant principles are summarised by Besanko J in Brown especially at [10]-[20]. A native title determination application does not comply with s 61 if it is not made by a native title claim group. A native title claim group is the group of persons consisting of all the persons who, according to their traditional laws and customs, hold the common law or group rights comprising the native title claim. Section 223 of the NT Act defines the expression native title or native title rights and interests to mean the communal, group or individual rights and interests of Aboriginal peoples in relation to land or waters where those rights and interests are possessed under traditional laws acknowledged and traditional customs observed by those people, so that they have a connection with the land and waters, and are recognised by the common law of Australia. The expression or term “native title claim group” is also defined in s 253 of the NT Act relevantly as the native title claim group mentioned in relation to the application in the table to s 61(1) of the NT Act.

19    Consequently, where it is apparent that a particular claimant group is a subgroup or subset of a native title claim group, the claim has been struck out: see eg Landers v South Australia [2003] FCA 264 at [32]-[33]; Brown at [20] and the cases cited there; Tilmouth v Northern Territory (2001) 109 FCR 240, 241-242 [4]; Dieri People v South Australia (2003) 127 FCR 364, 377-378 [55]-[56]; and McKenzie v South Australia [2005] FCA 22; (2005) 214 ALR 214 (McKenzie) at 223 [41].

20    The Court, when considering the contentions, must be mindful that a strike out order should only be made under s 84C where the claim is clearly untenable on the basis of the material advanced on behalf of the applicant whose claim is sought to be struck out. The Court should not readily conclude that the claim group is only a subgroup or part of a wider group for the purposes of s 61: see eg Colbung v Western Australia [2003] FCA 774 (Colbung) at [21]-[26].

21    Both the Naley Claim application and the proposed amended application make it clear that the applicant Mr Laing is bringing the claim on behalf of the claim group described as the Naley Descendants. There is only the one apical ancestor. The proposed amendment adds to the end of the description of the Naley Descendants the words “who recognise, practice and respect Mirning traditional law and culture only and no other Aboriginal traditional law and culture”. The claim is to exclusive possession of the claim area, subject to normal issues of extinguishment, pursuant to the traditional laws and customs of the Naley Descendants of Gordon Charles Naley. The proposed amendment adds the qualification:

The native title claim group claim exclusive possession as against the world, with the exception of the other Mirning people who only practice Mirning traditional laws and customs, who the Naley’s recognise pursuant to their traditional laws and customs and with whom they share native title rights and interests.

That is, it recognises that there are other Mirning People who have native title rights and interests in the claim area (although it asserts that only the Naley Descendants have the right to recognise them as such), and it clearly expresses that not only the Naley Descendants have native title rights in the Naley Claim area. Moreover, it also recognises that the Naley Descendants are part of the Mirning People.

22    Despite that, attachment R to the application asserts that the claim is brought on behalf only of the descendants of Gordon Charles Naley. He is the only apical ancestor.

23    The decision-making process is described in some detail. Reference is made to the authorisation decision being made by the Naley Descendants only, of whom it is said there are 34 Naley Descendants who are 18 years of age and above, and of those 34 Naley Descendants, 11 are family heads. They are named. The authorisation of the claim is said to have occurred on 14 March 2011 at the home of one of those named family heads. It is asserted that the decision-making process proposed was one towards gradual consensus, or by a majority. Although at one point that is described as a customary process, at another point it is said to be a process adopted under s 251B(b) of the NT Act, which applies where there is no process for decision-making under the traditional laws and customs of the claim group. For present purposes, nothing turns on whether the authorisation was made under s 251B(a) or (b). At the meeting, it is asserted that there was a consensus for the Naley descendants to lodge the claim and for Mr Laing to make the claim on their behalf. At that time, the proposed claim area was the same as that covered by the previous Mirning People Claim in South Australia (WAD 6016 of 1998) before that claim had merged with the then existing Far West Coast Native Title Claim. At a subsequent meeting on 13 November 2011, it was agreed by the Naley descendants to extend the claim area into Western Australia in the manner described above.

24    The minutes of the Naley Descendants meeting on 14 March 2011 attached to the application indicate that there were 17 of the 34 persons over 18 years present, and apologies from another six. At the Naley Descendants meeting on 13 November 2011, there were 20 of the 34 people shown as present with apologies from another three. Neither set of minutes records how notification of the meeting was given to those 34 persons. It is not suggested, in any event, that any notice of that meeting was given other than to the Naley Descendants.

25    In my view, the second of the contentions referred to in [17] above must succeed, and the Naley Claim must be dismissed. That is because it is plain, even on the evidence of Mr Laing, as well as acknowledged by his counsel, that it is not asserted on behalf of the Naley Descendants that they, and only they, are entitled to and to hold native title interests in the claim area the subject of their claim. It is also plain that Mr Laing himself does not purport to be a member of a native title claim group as that term is defined, comprising the Naley Descendants, but rather of a wider native title claim group comprising the Mirning People.

26    In the Naley application itself, at Schedule F, there is extensive reference to both archaeological and historical material relating to the claim area, providing a general description of the factual basis on which it is asserted that the native title rights and interest exist and are held by the Naley Descendants. That material is described as identifying the relevant society as the Mirning (including by Tindale, Aboriginal Tribes of Australia (1974)). There is an assertion that, for the Naley Claim, they are descended from only one apical ancestor because the claim group are the only living descendants who hold the particular native title rights and interests in the claim area. It then, however, proceeds to refer to historical data again referring generally to the Mirning People and to the fact that the traditional laws and customs which they observe are the same as those of their predecessors (identified as the Mirning). Reference is made to the Mirning People in Eucla at the heart of Mirning country. It refers to the claim group acknowledging that under their traditional laws and customs they have inherited a traditional connection to Mundrabilla-Eucla country by birth descent from their Mirning apical ancestors, which has an unbroken continuance.

27    The gist of that material is that the relevant claim group is the Mirning People of which the Naley Descendants are part. That was confirmed by counsel for Mr Laing on behalf of the Naley Descendants. He said that his client acknowledged that a determination of native title would not properly be made in favour only of the Naley Descendants to the exclusion of other Mirning People. It is not suggested that there are no other Mirning People, or that the other Mirning apical ancestors now have no descendants. He indicated that the application was, in a sense, designed to explore and identify who the Mirning People are, so that a proper determination could be made in favour of the Mirning People. Consequently, whilst it may be assumed that the descendants of Gordon Charles Naley, including Mr Laing, are Mirning People for the purposes of the application, it is plain on the application itself, and on the acknowledgment of counsel, that the claim is not presently brought on behalf of all the Mirning People (however, described) but on behalf only of a subset or subgroup of them.

28    In fairness to Mr Laing, it should be pointed out that his affidavits in opposition to the present application acknowledge that. He says he is a Mirning elder. He is a grandson of Gordon Charles Naley, a Mirning man. And in that capacity he and the Mirning descendants have an ongoing relationship with Mirning land. He describes how that relationship has developed. He describes the claim to exclusivity asserted in the application as being inadequately expressed, but intended to cover not simply the Naley Descendants but also other Mirning People who share the identified native title rights and interests. He specifically acknowledges that the descendants of Gordon Charles Naley do not claim to hold the rights and interest in the land claimed exclusively, but to share those rights and interests with all Mirning People who acknowledge Mirning traditional law and customs and are accepted within the Mirning community as being Mirning only. (There is no assertion at that point, compared to the proposed amended application, to an entitlement on the part of the Naley Descendants to determine who is or is not part of the Mirning People.) Mr Laing said that the Naley descendants recognise other Mirning families as having rights and interests in the claim area.

29    An alternative or additional way of looking at the Naley claim is to say that the claim as expressed, if it was intended to encompass a wider Mirning group than the Naley Descendants, is not shown to have been authorised in accordance with the traditional laws and customs of the Mirning People (however that group may be described or composed). There is simply no evidence upon which it could be said that the Mirning People authorised Mr Laing to bring the claim on behalf of the Mirning People. The authorisation meetings were confined to Naley Descendants, when Mr Laing’s evidence is clearly that the Mirning People are a more extensive group and apparently have other apical ancestors than Gordon Charles Naley. That defect is not overcome by Mr Laing’s assertions that he has consulted some leaders or representatives of the Mirning community. There is a document dated 19 May 2010 in which eight elder members of the Mirning community have acknowledged Mr Laing as a senior Mirning man, and a further document dated 19 April 2011 in which the Committee of Mirning Community Inc (signed by four of those eight people) have purported to allow the Naley Claim to be brought by Mr Laing. That document does not record that the claim is to be brought to exclude all persons other than the Naley Descendants from holding native title rights and interest in that land. Mirning Community Inc has previously applied unsuccessfully to be joined as a respondent party to the Far West Claim: see Far West Coast Native Title Claim v South Australia (2011) 191 FCR 381.

30    Finally, it remains to distinguish the decision upon which the Naley Descendants particularly relied, namely Colbung. In Colbung, overlapping native title applications were considered. There are overlapping claims by both the Harris and Isaacs’ interests. The Colbung applicants sought to strike them out under s 84C(1) of the NT Act for failure to comply with s 61(1). The Isaacs’ claim was struck out. Finn J declined to strike out the Harris Claim. That was in the face of the contention that the reference by the Harris family to being “Noongar People” meant that they were a subgroup of the “Noongar People” and were accordingly not authorised by all of the “Noongar People” to make the native title determination application in question.

31    Finn J refused to strike the claim out on the basis that the application was clearly being made by the Harris family for the Harris family (and not in a representative capacity) for rights and interests which may not have been established by the larger group; and that the description “Noongar people” was insufficiently precise to warrant the application being struck out: see also Hillig v Minister for Lands for New South Wales (No 2) [2006] FCA 1115 at [60]. By way of contrast, as counsel for the Naley Descendants acknowledged, in this matter their claim is in fact – although not in terms – a claim in a representative capacity for an undescribed group of Mirning people. However, the application is not authorised by them as required by s 251B. It is also not a claim, which, if successful, will result in a declaration of native title in favour of the Mirning people. In terms, it seeks an order for native title to be declared only in favour of the Naley descendants (and after the proposed amendment the Naley descendents and those Mirning people who the Naley descendants recognised as sharing those rights). That is clearly a different circumstances to the facts addressed in Colbung.

32    Accordingly, I have reached the view that there is no prospect of the Naley Claim as presently expressed, or as proposed to be amended, succeeding. It is a claim brought by a subgroup of the Mirning People, namely the Naley Descendants, and avowedly so. It is also, therefore, not authorised as required by ss 251B and 61 of the NT Act as required, as the authorisation to bring the claim is limited and confined to some only of that claim group, namely the descendants of Gordon Charles Naley.

33    In those circumstances, it is unnecessary to consider the alternative contention that, in any event, the authorisation process adopted by the Naley Descendants to bring a claim on their behalf in the manner described inevitably is inadequate in any event. It is also unnecessary to determine whether the time at which the Naley Claim was made was itself a reason to make the order sought. I do not think that the strike-out order sought could have been made under s 84C of the NT Act only by reason of its very recent filing, compared to the Ngadju Claim and the Far West Coast Claim. Section 84C can apply only where certain criteria are established. If they are established, the wording suggests that the Court must consider the application, and by inference must deal with it according to whether it is properly made or not. It does not emerge, to my mind, that there is a discretion to strike-out a claim if the criteria for the strike-out are not established: non-compliance with either ss 61, 61A or 62, on the application of another party to the proceeding. There may be a discretion in the Court to summarily dismiss such a claim under s 31A of the FCA Act solely for lateness if the claim amounts to an abuse of process, but it is unnecessary to discuss that further.

34    I do not need to comment upon, and should not be taken as suggesting, that the application by Mr Laing on behalf of the Naley Descendants is of itself an abuse of process despite its timing in relation to the history and evolution of both the Ngadju Claim and the Far West Coast Claim. Nor do I need to determine, or indeed to express a view, as to whether in fact the Naley Descendants, including Mr Laing, are or are not members of a claim group constituting the Mirning People. I have assumed that question in their favour for the purpose of considering the application. Finally, I do not need to explore in any detail who constitute the Mirning People. It is apparent that the Mirning People are identified as such and described both in the WA Mirning Claim and in the Mirning Claim (WAD 6008 of 1998) as brought first before the Court and subsequently then as the Mirning People as described as part of the current Far West Coast Claim. As I noted in Far West Coast v South Australia (no 2) at [12], there is obviously some discontent or concern held by some of the Mirning People in relation to the conduct of the Far West Coast Claim. For that reason, when dismissing the application for deconsolidation of the claim, I stood over the question of whether, in the conduct of that claim, some alternative orders might be sought under s 84B of the NT Act and about the joinder of the person making that application, Robert Victor Miller, to explore whether certain matters should or should not be attended to in the process of the further management of that claim. They are different issues.

35    The strike out application is successful. I order that the Naley Claim itself be dismissed.

Associate:

Dated:    7 September 2012