FEDERAL COURT OF AUSTRALIA

Sumner v State of South Australia [2014] FCA 534

THE COURT ORDERS THAT:

1.    On the application of Mark Koolmatrie and others of 17 October 2013, the application is refused.

2.    On the application of Mark Koolmatrie and others of 6 December 2013, the application is refused.

3.    On the application of Mark Koolmatrie and others of 23 January 2014, the application is refused.

4.    On the application of Darrell Sumner and others of 27 November 2013, there be no order.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    This judgment addresses the following applications:

(1)    17 October 2013: Mark Koolmatrie and the Tribal Council Elders of the Coorong, Lower Lakes and Sea (first Koolmatrie application) seeking orders that the Ngarrindjeri Native Title Claim be struck out; or that the Ngarrindjeri claimants establish connection to country, or that the Ngarrindjeri claimants prove “lineage” (ie genealogy), or finally that the Koolmatrie applicants be joined as a respondent to the Ngarrindjeri Native Title Claim.

(2)    27 November 2013: Darrell Sumner & Ors (Sumner application) seeking orders that the first Koolmatrie application be dismissed.

(3)    6 December 2013: Mark Koolmatrie and the Tribal Council Elders of the Coorong, Lower Lakes and Sea (second Koolmatrie application) seeking orders that the Ngarrindjeri Native Title Claim be struck out or requiring claimants to establish the matters that would need to be established under ss 223 and 225 of the Native Title Act 1993 (Cth) (NT Act) as on a final hearing of the claim for a determination under s 61.

(4)    23 January 2014: Mark Koolmatrie and the Tribal Council Elders of the Coorong, Lower Lakes and Sea (third Koolmatrie application) again seeking orders that the Ngarrindjeri Native Title Claim be struck out, or for an interlocutory hearing of the same sorts of issues on that claim.

2    For the reasons which follow, I refuse the three Koolmatrie applications.

3    It therefore is not necessary to make any orders on the Sumner application.

4    The Ngarrindjeri Native Title Claim itself should continue in the normal manner. For that purpose, once the parties to the claim and Mr Koolmatrie and his co-applicants have had an opportunity to consider these reasons for the orders made, the claim will be relisted for directions at a time to be fixed.

Status of Mr Koolmatrie

5    At present, Mr Koolmatrie is not a party to the Ngarrindjeri Native Title Claim. Unless Mr Koolmatrie can obtain that status or some other relevant status he has no standing to make the three applications and they should be dismissed. It is therefore appropriate to address that issue, arising on the first Koolmatrie application, before considering the other issues which arise.

6    The first Koolmatrie application was supported by an affidavit of Mr Koolmatrie dated 17 October 2013, which exhibited seven attachments identified as (A) to (G). Attachment G is a purported notice under s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act). It is convenient to briefly address that notice before considering whether he should be joined as a party.

7    Mr Koolmatrie’s affidavit is partly factual and partly by way of submission. To the extent that it really is no more than a submission, I will have regard to it on that basis. That includes the basis for the s 78B notice.

8    The submission seeks to impugn the authority of the Commonwealth Parliament and by implication the jurisdiction of the Federal Court to determine applications for native title and thereby the claim made by the Ngarrindjeri Native Title Claim. In substance, the assertions with respect to South Australian sovereignty, the sovereignty of the Commonwealth Parliament and the jurisdiction of the Federal Court mirror the arguments advanced and dealt with in Walker v South Australia (No 2) (2013) 215 FCR 254. For the same reasons as there given, those submissions cannot succeed. I will not repeat those reasons, but adopt them for the purposes of this ruling.

9    In this section of my reasons, I have largely adopted the submission of the State, as they are both helpful and uncontroversial.

10    Section 84 of the NT Act sets out the statutory criteria for joinder to an application under s 61. Relevantly, s 84(5) of the NT Act provides:

(5)    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.

11    The words “and it is in the interests of justice to do so” were added by item 5 of Schedule 2 to the Native Title Amendment Act 2007 (Cth) which, by operation of items 76 and 78 of Schedule 2 read with s 2 of that Act, does not apply to proceedings commenced before 15 April 2007. However, as Gilmour J noted at [163] of Barunga v State of Western Australia (No 2) [2011] FCA 755 (Barunga), the addition of those words added nothing to the matters that the Court must consider in the exercise of the discretion conferred to join a party to a proceeding under the NT Act. The discretion to join a party must properly be addressed on a case by case basis: see also Far West Coast Native Title Claim v South Australia (No 2) (2011) 204 FCR 542 at 549 at [37] (Mansfield J) (Far West Coast (No 2)).

12    The elements of s 84(5) are well established: Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [26] (Mansfield J) (Far West Coast (No 5)); Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310 at [14] (Greenwood J) (Chippendale); Barunga (Gilmour J); Akiba v Queensland (No 2) (2006) 154 FCR 513 at 520 [32] (French J); Worimi Local Aboriginal Land Council v Minister for Lands (NSW) (2007) 164 FCR 181 at 183-184 (Bennett J). An applicant for joinder must establish:

(a)    whether the person has an interest;

(b)    whether the interest may be affected by a determination in the proceedings; and

(c)    whether, in any event, in the exercise of its discretion the Court should join the person as a party.

13    With respect to the “interest” in (a) and (b), it “need [not] be properly or even legal or equitable in nature” but must be “genuine”, … not indirect, remote or lacking substance … [and] capable of clear definition” and “be affected in a demonstrable way”: Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 at 7E-G, 8A (Black CJ) (Byron) (emphasis added); Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315 at 316-317 (Branson J) (Davis-Hurst); Barunga at [165] (Gilmour J); Chippendale at [14] (Greenwood J); Far West Coast (No 5) at [28] (Mansfield J).

14    While incorporated and unincorporated entities may have interests that permit their joinder to an application, entities put forward as representing members with relevant interests do not, by that reason along, have interests of the sort contemplated by s 84(5) as expounded in Byron at 9-10 (Black CJ) and 43 (Merkel J). That is a proposition that has been applied in a number of cases: see Far West Coast Native Title Claim v South Australia (2011) 191 FCR 381 at 386-387 [23] (Mansfield J) (Far West Coast) and the cases cited therein. An entity whose members are capable of asserting a direct interest capable of being affected by a determination of native title can only, by its nature, have an indirect interest and thus would fail to meet the Byron test: Far West Coast at [23], [29]-[30] (Mansfield J). As a result, there can be no joinder of the Tribal Council of Elders of the Coorong as an entity to the Ngarrindjeri claim.

15    Accordingly, it is only Mr Koolmatrie or other individuals who can properly be joined as respondent parties asserting a competing claim or interest.

16    In determining whether an applicant for joinder satisfies the test identified in Byron, the Court does not embark on resolving contested questions of fact or seek to determine where the merits lie. Rather, the question is whether having regard to the assertions of fact contained in the application for joinder, the Court can be satisfied that the person’s interests may be affected in a demonstrable way by a determination of native title. That is, there must be a factual foundation which demonstrates that a relevant interest is affected: Chippendale at [16] (Greenwood J).

17    As to the discretion, that must be addressed on a case by case basis: Far West Coast (No 2). While there is no doubt that the discretion conferred on the Court by s 84(5) is a broad one, that discretion is to be exercised with due regard to the statutory purposes and context of the NT Act read as a whole, including to ensure that the prosecution of native title claims is not occasioned by unnecessary delay caused by unreasonable interlocutory applications.

18     I have considered the material relied upon by Mr Koolmatrie. None of it indicates that he is pursuing his claim as a dissentient member of the Ngarrindjeri Native Title Claim group. It indicates that Mr Koolmatrie’s concern involves advancing a competing native title claim because his submission is that the Ngarrindjeri Native Title Claim group cannot succeed in their claim because a different group of which he and the Tribal Elders on whose behalf he brings his applications for are the persons who hold native title over the claim area.

19    Persons representing a differently constituted claim group may be joined as respondents to a claim : Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 at 550 [22] (Mansfield J): Munn v State of Queensland [2002] FCA 486 at [8] (Emmett J); Davis-Hurst at [27] (Branson J). Assuming competing claimants can establish that they have rights and interests which may be affected by a determination of native title, joinder to a principal native title claim may be appropriate in the sense that the assertion and consideration of such interests may lead to a more informed decision on the principal claim. However, even if joined as respondents, the interests advanced by competing claimants could not result in a positive determination of native title in their favour: Commonwealth v Clifton (2007) 164 FCR 355 at 366 [57] (Branson, Dowsett and Sundberg JJ) (Clifton); Kokatha at [22] (Mansfield J); Munn at [8] (Emmett J); Davis-Hurst at [27] (Branson J).

20    I am unable to conclude that the material relied on by Mr Koolmatrie shows an arguable factual foundation for a genuine interest as a member of, and as the representative of, a competing claim group so that those interests may be demonstrably affected by the determination of the Ngarrindjeri claim.

21    His affidavit filed in support of the first Koolmatrie application contains seven attachments, but none can advance that factual matter.

22    His affidavit filed to support the second Koolmatrie application contains 10 attachments identified “A” to “K” (there is no attachment “C”). I have considered that material. The material adduced with the third Koolmatrie application, apart from correspondence, only includes some of the earlier material.

23    So that it is not seen to have been overlooked, I record the general thrust of the attachments to Mr Koolmatrie’s affidavit to support the second Koolmatrie application. The State’s submission also, in my view, fairly summarises that material.

24    Attachment A contains extracts from various published sources concerning the origins of the use of the term “Ngarrindjeri” (or “Narrinyeri”) and assertions that historically the “Ngarrindjeri” did not include “Yaraldi” or “Tangane” or “Ramindjeri”. Attachment B is put forward as a guide to the meaning of the word “Ngarrindjeri”. Attachment D contains a list of native title rights and interests asserted by the entity identified as the Tribal Council of Elders of the Coorong and contains assertions of connection by that entity to areas identified as the Coorong and Warrindjeri Point. Attachment E identifies various “sites of significance” said to be located in and around the Coorong and the Lower Lakes. Attachment F comprises copies of journal records of Norman Tindale relevant to the area in and around the Ngarrindjeri claim area. Attachment G is said to be a transcript of information on local tribal people by Lola Bonney. The relevance of that document appears to be the reference in the last sentence to Mrs Marge Koolmatrie being a descendant of Mr Jimmy Gibson [Mr Jim Gibson and his wife Katherine (also known as Caroline) are listed as the first Apical Ancestors on the Form 1 of the Ngarrindjeri native title application]. Attachment H is an extract from The World That Was by Ronald and Catherine Berndt identifying traditional food sources. Attachment I is an extract of Aboriginal language terms from The World That Was by Ronald and Catherine Berndt. Attachment J is an extract from The World of the First Australians by Ronald and Catherine Berndt and extracts from Norman Tindale. Finally, Attachment K is a letter objecting to the use of certain apical ancestors in the Ngarrindjeri Native Title Claim.

25    I do not consider that that material is sufficient to show that Mr Koolmatrie, on his own behalf, and on behalf of others (who are the Tribal Council of Elders of the Coorong) have an arguable interest in the claim area as competing native title claimants. I am mindful that it is not presently the function of the Court to undertake an assessment of contested questions of fact or otherwise seek to determine where the merits ultimately lie: Chippendale at [16] (Greenwood J). However, I do not consider that the material relied upon has the necessary probative quality.

26    The material in Attachments D and E does not rise beyond mere assertion. There is no direct evidence establishing that Mr Koolmatrie is a member of a different group of indigenous people within the claim area. There is no genealogical or other anthropological evidence to support the assertion of a competing native title claim group within the claim area. There is no evidence which ties Mr Koolmatrie to a competing claim group with competing interests to the claim area and there is no evidence beyond the assertions that there is, in fact, a different group than that which is constituted under the Ngarrindjeri Native Title Claim with native title rights in the claim area. In short, there is no evidence capable of establishing a prima facie or arguable case for joinder on the basis of competing native title rights and interests: Wakka Wakka People #2 v State of Queensland [2005] FCA 1578 at [5] (Kiefel J).

27    If it be assumed that Mr Koolmatrie seeks joinder as a dissentient member of the Ngarrindjeri claim group, there is no evidence to support his joinder as a respondent because there is no evidence that Mr Koolmatrie possesses specific interests separate from those within the claim group so that Mr Koolmatrie’s interests are not capable of being dealt with internally. Nor is there any evidence that Mr Koolmatrie’s interests as a dissentient (if any) would be demonstrably affected by the determination of the Ngarrindjeri Native Title Claim. I note that counsel for the applicant accepted that Mr Koolmatrie is accepted as a member of the present claim group.

28    I note the further submission by the State that, in any event, there are cogent reasons for the Court to decline to make such an order in the exercise of the discretion conferred on the Court by the terms of s 84(5), which is relevant with respect to element (c) of the Byron test. The reasons for that, in the present circumstances, are quite powerful.

29    First, the Ngarrindjeri Native Title Claim is now 16 years old. All persons within the native title claim area as well as persons in adjoining areas have been on notice of the claim for a considerable period of time. Mr Koolmatrie has not provided any reasonable explanation for not asserting competing native title rights and interests prior to the present application. Mr Koolmatrie’s only explanation appears on page 4 of his second affidavit of 6 December 2013. He says that he expected that the Ngarrindjeri Native Title Claim “would have been strike out by now”. If Mr Koolmatrie has rights and interests within the claim area, waiting 16 years for the claim to fail on the basis of some unidentified party’s actions is not a reasonable one for obvious reasons. Mr Koolmatrie says he wished to avoid using the Court to assert those interests. I do not think that is a reasonable explanation. If the interests of Mr Koolmatrie are capable of being affected by a determination made by this Court, then the Court was the appropriate forum within which any competing or particular native title rights and interest relevant to the current claim should have been asserted many years ago. Secondly, it is common knowledge that there is a proposed Indigenous Land Use Agreement and Co-Management Agreement in relation to the Coorong National Park that are in the final stages of negotiation. The Koolmatrie applications, if successful, would impede those agreements from being finalised. Thirdly, negotiations in respect of the Ngarrindjeri Native Title Claim are progressing with the State with a view to a consent determination. The applications brought by Mr Koolmatrie for an order under s 84(5) will destabilise those negotiations and may lead to considerable delay.

30    Although I have declined to join Mr Koolmatrie as a respondent party to this application on the basis that the material he relies upon does not warrant such an order, the additional discretionary factors referred to would add to the scales against making such an order. They would justify a more cautious assessment of the strength of his group’s potential claim than whether it was merely arguable (the test I have applied) in the circumstances. Applying that more cautious assessment would reaffirm the view I have reached.

OTHER MATTERS

31    Apart from Mr Koolmatrie, by reason of that ruling, not having the standing to seek the other orders he has sought, I would in any event refuse to make them.

32    Even if Mr Koolmatrie had standing to bring an application under s 84D (eg as a member of the claim group), no cogent admissible evidence has been provided to support an application under s 84D: see Starkey v South Australia (2011) 193 FCR 450 at 466 [71] (Mansfield J). He has not identified any defect in the authorisation underlying the Ngarrindjeri Native Title Claim in the material he relies on. The dispute with respect to the apical ancestors identified in the Form 1 of the Ngarrindjeri Native Title Claim does not indicate a defect in the authorisation of the claim.

33    There is also no cogent reason why, at this point, it is either necessary or desirable that the applicant on behalf of the Ngarrindjeri Native Title Claim group should be required to present, as if at trial or at a trial of separate issues, the evidence to prove connection to the claim area, or the “lineage” or genealogy asserted. Those are matters which may be resolved by consent between the applicant and the State and other respondents. Those discussions are taking place at present. It would be inappropriate in terms of resources and expense to give any such direction in the present circumstances at the request of Mr Koolmatrie, even if he were a respondent party to the application.

CONCLUSION

34    For those reasons, as indicated above, the orders sought in each of the three Koolmatrie applications are refused. It is not necessary to make any order on the Sumner application.

Associate:

Dated:    23 May 2014