FEDERAL COURT OF AUSTRALIA

Walker v State of South Australia [2014] FCA 962

THE COURT ORDERS THAT:

1.    On the motion of the Kaurna Peoples applicant of 29 June 2012, those persons become a respondent party to this application.

2.    On the motion of the Ngarrindjeri applicant of 29 June 2012, those persons become a respondent party to this application.

3.    The application be dismissed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    This decision concerns the motion of the State of South Australia to strike out this application. For the reasons given below, I have decided to accede to that motion. Accordingly, I order that the application be dismissed.

BACKGROUND

2    The application by Lance Gilbert (Karno) Walker made on 22 October 2010, and amended on 20 January 2011, was made under s 61 of the Native Title Act 1993 (Cth) (the NT Act) for the determination of native title held by the Ramindjeri native title claim group (the Ramindjeri claim). I shall refer to the application as amended as the Ramindjeri application or the Ramindjeri claim.

3    The Ramindjeri claim covered Kangaroo Island and surrounding waters and the Fleurieu Peninsula and surrounding waters extending east to the mouth of the Murray River and north in the St Vincent Gulf to Outer Harbour. It then ran roughly diagonally down through the northern suburbs of Adelaide and then east to the Mount Lofty Ranges. It then ran roughly along the western side of those Ranges to about Clarendon and then roughly south south-east following natural physical features of the geography through Mount Compass to Goolwa and the Murray River Mouth.

4    Consequently, the Ramindjeri claim area overlaps with significant parts of the Ngarrindjeri native title claim south of Adelaide (SAD 6027 of 1998) and of the Kaurna Peoples native title claim over the Adelaide plains (SAD 6001 of 2000). Both of those claims were registered on the Native Title Registry of the National Native Title Tribunal (NNTT). The Ramindjeri claim was not accepted for registration by the Native Title Registrar of the NNTT.

5    The State contended that the Ramindjeri claim should be struck out because it cannot succeed on the following bases:

(1)    on the material, the Ramindjeri claim group is a subgroup of the Ngarrindjeri claim group, and so is not a native title claim group capable in its own right of being recognised as the holders of native title; and

(2)    Mr Walker in any event is not properly authorised under s 251B of the NT Act to bring the claim on behalf of the identified Ramindjeri claim group.

6    I will consider each of those issues separately. Before doing so, there are some other matters which should be referred to.

THE CONSTITUTIONAL ISSUE

7    I note that, in the first place, I dealt with an issue about which Mr Walker gave notice, together with a notice under s 78B of the Judiciary Act 1903 (Cth), concerning the status of the Court to entertain the State’s strike out application.

8    Mr Walker contended that the Ramindjeri have never ceded sovereignty to the Crown “in any form nor guise nor capacity”. Consequently, he appeared to contend, from that assertion, that neither the Crown in right of the Commonwealth of Australia nor the Crown in right of the State of South Australia have sufficient sovereignty to make laws with respect to the Ramindjeri without their consent or acquiescence. The next step was to assert that the Ramindjeri, as a sovereign people, are not subject to the laws of the then colony of South Australia, as vested by the Imperial Parliament, nor the laws of the Commonwealth or of the State. He thus contended that neither the Commonwealth nor the State can validly pass laws which regulate or affect the laws, rights, culture, heritage, lands, men, women or children of the Ramindjeri.

9    As I pointed out to him in the course of a directions hearing, if he is correct in his contentions, the NT Act has no application to the Ramindjeri and that neither this Court nor any court of the Commonwealth, or of a State, has jurisdiction to determine what rights the Ramindjeri do have, or do not have, in their claimed country. The claim he makes as an authorised applicant for the Ramindjeri is then fallacious, as he does not accept the NT Act as a law by which he is bound, or under which he can assert any entitlement. I asked him whether I should, in accordance with his position, simply dismiss the application.

10    Upon consideration, he said he did wish to pursue the Ramindjeri application, so he not only acceded to the legislative power of the Commonwealth and to the jurisdiction of this Court, but invoked it to establish the claimed entitlement in accordance with the requirements of the NT Act.

11    In any event, I rejected that contention in reasons given on 19 July 2013: Walker v State of South Australia (No 2) (2013) 215 FCR 254; [2013] FCA 700. It is not necessary to repeat them.

THE PARTIES

12    It is obvious from the background that the Ramindjeri application, if it were to succeed, would necessarily impact upon the claims of the Ngarrindjeri and of the Kaurna People.

13    I therefore accede to the applications of each of the applicants in those claims, on behalf of the native title claim groups whose interests they are authorised to pursue, that they become parties to the Ramindjeri application.

14    Accordingly, orders will be made that under s 85(5) of the NT Act:

(1)    on the motion of the Kaurna Peoples applicant of 29 June 2012, those persons become a respondent party to this application; and

(2)    on the motion of the Ngarrindjeri applicant of 29 June 2012, those persons become a respondent party to this application.

15    In anticipation of such orders being made, each of those persons appeared to support the motion of the State. Indeed, although the State did not pursue (1) of its motion as set out in [5] above because it considered that the available material may not lead to the Court reaching the necessary level of satisfaction to summarily dismiss the Ramindjeri claim on that basis, the Ngarrindjeri through their counsel maintained the contention.

LEGAL PRINCIPLES

16    The principal source of strike out power relied on by the State and by the Ngarrindjeri is s 84C of the NT Act. If a native title application fails to comply with s 61 of the NT Act, a party to proceedings may apply at any time to strike it out.

17    It is clear that the power should only be exercised where a clear case for summary dismissal has been made out, although it is not necessary to establish that the case is futile: Bodney v Bropho (2004) 140 FCR 77 at [51] per Stone J with whom Spender and Branson JJ agreed. It may require extensive argument and reliance on evidence to be satisfied that there are defects in the case which should lead to its summary dismissal: McKenzie v State of South Australia [2005] FCA 22 at [26] per Finn J; Bodney v Bropho (2004) 140 FCR 77 at [52] per Stone J with whom Spender and Branson JJ agreed.

THE REQUIREMENTS of SECTIONS 61, 62 and 251B OF THE NT ACT

18    Having regard to the date of commencement of the Ramindjeri application and the date of its amendment, and the date of the State’s motion of 25 June 2012, and the dates upon which the Kaurna People through their applicant and the Ngarrindjeri through their applicant applied to be joined as parties, I consider there is sufficient reason also to apply the Federal Court Rules 2011 (Cth) (Federal Court Rules) to the determination of the motion of the State. It was a step in the proceeding started after the commencement of the Federal Court Rules: see Rule 1.04(2), and there is no apparent reason why an order under Rule 1.04(3) should be made. The relevant Rule, namely Rule 26.01, reflects generally the statutory test prescribed in s 31A of the Federal Court of Australia Act 1976 (Cth) in force since 2005.

19    Section 31A prescribes the test whether Mr Walker is shown to have no reasonable prospect of successfully prosecuting the Ramindjeri claim as it is expressed. That test is a somewhat less onerous test to satisfy that was previously the case: see eg Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [53]-[56]. Section 84C of the NT Act provides for the entitlement of a party to an application under s 61 of the NT Act to apply to strike it out. It does not prescribe the test to be applied in deciding whether to accede to such an application.

20    In my view, it is appropriate in the present circumstances to apply the test prescribed by s 31A of the Federal Court of Australia Act 1976 (Cth), although I do so with the caution appropriate having regard to the nature of the Ramindjeri application and to the consequences of making my order.

21    An application under s 61(1) for a determination of native title must be filed by:

A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group.

22    Section 61(4) of the NT Act requires the application to name the individual claim members or otherwise sufficiently clearly describe the persons constituting the claim group so that it can be ascertained if a particular person is, or is not, a member of the claim group. The purpose of s 61(4) is or includes “… to enable it to be known whether all the persons in the native title claim group have authorised the making of the application”: Harrington-Smith on behalf of the Wongatha People v State of WA (No 9) [2007] FCA 31 at [1186] per Lindgren J.

23    The proper definition of the native title claim group goes to “the heart of a native title determination application”: Quall v Risk [2001] FCA 378 at [67] per O’Loughlin J and see also Landers v State of South Australia (2003) 128 FCR 495 at [35] per Mansfield J; Reid v State of South Australia [2007] FCA 1479 (Reid) at [27] per Finn J. The definition of “native title claim group” in s 253 is somewhat circular in that it simply refers to the group referred to in the relevant application, but s 223 provides more light on the concept. Section 223(1) provides:

(1)    The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)    the rights and interests are recognised by the common law of Australia.

24    Section 251B provides for the manner of authorisation of an application under s 61. There are two alternative means of authorisation, depending on whether there is a process of decision making under traditional laws and customs which must be complied with. Section 251B provides:

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind – the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)    where there is no such process – the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

25    Section 62(1)(a)(v) requires proof by affidavit of the applicant, with the application, of the details of the process of decision-making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it.

26    Where the requirement for authorisation is not complied with, generally it is fatal to success of the application: Harrington-Smith on behalf of the Wongatha People v State of WA (No 9) [2007] FCA 31 at [1172] per Lindgren J; Reid at [29] per Finn J, although s 84D now enables the Court in certain circumstances to proceed to hear and determine a claim even where the issue or extent of authorisation may not be clearcut. However, as explained in Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809 per Gilmour J at [51]-[55], such circumstances would not arise where (as here) there is alleged to be a fundamental failure to secure authorisation under s 251B. See also Far West Coast Native Title Claim v South Australia (No 2) (2012) 204 FCR 542 per Mansfield J at [47]-[59]; KK v Western Australia (2013) 217 FCR 115 at [50]-[68] per Barker J.

27    Obviously, evidence about the process of authorisation that was adopted and how it complies with the NT Act requirements is necessary: Dieri People v State of South Australia [2003] FCA 187 (Dieri) at [57] per Mansfield J. That will commonly require evidence about the notice of the meeting and about the persons present and how they identified as members of the claim group: Brown v State of South Australia [2009] FCA 206 (Brown) at [24] per Besanko J; Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [45] per French J as he then was.

28    Where the means of authorisation are not traditional, compliance with s 251B of the NT Act will require the decision making process to give all members of the claim group a reasonable opportunity to participate: Lawson v Minister for Land and Water Conservation [2002] FCA 1517 at [25] per Stone J.

29    Where the described native title claim group is in fact more accurately a sub-group of a larger community of persons who hold the common or group rights and interests comprising the particular native title claim, that sub-group cannot, generally qualify as a claimant group under the NT Act: Kite v State of South Australia [2007] FCA 1662 at [22] per Finn J; Dieri at [56] per Mansfield J. O’Loughlin J stated in Risk v National Native Title Tribunal [2000] FCA 1589 at [60]:

… the acceptance of a small family group (when it is known that it forms part of a larger community) is inconsistent with the philosophy that is to be found in the table to s 61; that section talks of the persons who, as a group, hold “the common or group rights and interests”.

In Reid at [28] Finn J adopted that reasoning and stated that:

… a subset or part of what truly constitutes a native title group cannot itself be a claimant group under s 61(1).

That general view must be qualified by recognising that there may be circumstances in which a sub-group may constitute a native title claim group where it alone exercises rights in relation to a defined area. Of course, that sub-group will itself need to have properly authorised the applicant to bring the claim on behalf of the sub-group in relation to that defined area. Hence, in Brown, Besanko J at [20]-[21] said:

The propositions [that a native title claim group is a group consisting of all the persons who, according to their traditional laws and customs, had the common or group rights or interests comprising the particular native title claim claimed] have been applied most commonly in circumstances where it is clear that the claimant group is a sub-group or sub-set 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 sub-group, sub-set or part of a native title claim group; Colbung v The State of Western Australia [2003] FCA 774 at [23]-[26] per Finn J; McKenzie at 223 [41] per Finn J; Hillig [as administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115] at [60] per Bennett J; Reid at [28] per Finn J; and Kite at [22] per Finn J. For example, it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group 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].

THE RAMINDJERI APPLICATION

30    The Ramindjeri application of 22 October 2010 by its Attachment A, lists 152 persons constituting the Ramindjeri claim group. All are said to be descendants of Sally Walker Ramindjeri woman. Other relevant information is said to be in Attachment T.

31    Attachment T is an extensive bundle of “Source Reference Extracts” from 55 documents together with a short “Ramindjeri Native Title Report” and a summary of Source Reference Extracts.

32    The Summary of Source Reference Extracts indicates a body of material confirming the existence of the Ramindjeri, with references to the range of their recorded activities in the lower part of the Fleurieu Peninsula, extending north to Willunga and Clarendon (and possibly Brighton) and to the east to Goolwa near the Murray River Mouth. They recognise a separate Adelaide or Adelaide Plains tribe. There is also material confirming the existence of the Kaurna tribe and the Ngarrindjeri tribe. Some commentary on the extracts, within that summary, recognises that the anthropologist Tindale drew the southern line of Kaurna country further south than the present Ramindjeri area, but was wrong to have done so.

33    The application says Mr Walker was authorised to bring the application by resolutions passed at a meeting of the claim group on 30 October 2008 at the NNTT office in Adelaide claimed by the Hon Chris Sumner (the NNTT Meeting) and a publicly notified meeting held on 16 December 2009 at Box Factory Community Centre in Adelaide chaired by Mr Alan Hunter, then the Deputy Chairman of South Australian Native Title Services Ltd (SANTS), then the native title representative body for South Australia (the Box Factory Meeting).

34    There is no substantive material extracted referring to the Aboriginal tribe or tribes whose country was Kangaroo Island.

35    Mr Walker’s affidavit of 22 October 2010 supporting the application identifies King Condoy as the apical ancestor of the Ramindjeri claim group members. Later in the affidavit he explains that Sally Walker or Princess Con is his daughter. He gives a direct line of descent to himself over seven generations from King Condoy.

36    At the Box Factory meeting, Mr Walker says each of the 152 people formally declared that each was a Ramindjeri person and accepted that their respective declarations may be used in the Kaurna People claim or the or the Ngarrindjeri claim “as evidence of who my people are”. Mr Walker says the process of decision making at the meeting was agreed and adopted (but he does not say how) and was consistent with traditional Ramindjeri laws and customs.

37    However, Mr Walker goes on to say that the decision making process involved convening a number of meetings of Ramindjeri People, and the acceptance of decisions made at those meetings. He also says decisions are made “in consultation with representatives of significant Ramindjeri families who attend such meetings”. Such meetings of representatives are, he says, traditionally then binding on all Ramindjeri People. He says the Box Factory Meeting was “one such meeting” which he attended.

38    In the same affidavit, Mr Walker says that at the Box Factory Meeting it was confirmed that “they were the right meetings and attended by sufficient representatives of the Ramindjeri families” to decide to pursue the Ramindjeri claim and to authorise Mr Walker to act as the applicant. Hence, he says, that those people refute the inclusion of any of their apical ancestors in the Kaurna People claim or the Ngarrindjeri claim, and that they say their inclusion in those claim groups was unauthorised.

39    Later in the affidavit, after referring to King Condoy as the “headman of Ramindjeri” and his direct lineal descent, Mr Walker says he is now the Ramindjeri headman “having authority to conduct processes on behalf of the tribe”.

40    The Ramindjeri application as amended on 20 January 2011 was supported by two affidavits of Mr Walker of 17 January 2011 and the affidavit of 22 October 2010. That material did not alter the description of the claim group except that the same named persons appeared without reference to Sally Walker as their apical ancestor. That change is not explained.

41    As to the authorisation process; it added that the Box Factory Meeting was notified by notice in The Advertiser, but otherwise appears to contain much the same information expressed in a slightly different way. The advertisement is attached to the affidavit, but its date of publication is not specified or apparent. From other evidence, it was given on 19 November 2009. It invites all persons who identify as Ramindjeri and who wish to participate in considering whether to make a claim on behalf of the Ramindjeri in relation to the area specified in the Ramindjeri application (with a map showing the extensive area proposed to be claimed) to attend. The business was to “determine the process (whether traditional or otherwise) to decide whether to make the proposed claim, and to use that process to decide whether to make such a claim and who to authorise to make it.

THE subsequent evidence

42    The State has provided a Table of names and other personal details entitled “Ramindjeri Public Meeting” which Mr Walker provided, and which he said was prepared at the Box Factory Meeting. It was also given by Mr Walker a DVD recording the meeting, and it has prepared a transcript of the meeting from that recording. Those materials were also produced.

43    The Table has columns for name, contact details, “Your Country”, and “Your Ramindjeri Connection”. There were 55 persons who apparently put their names to the list. The “Your Country” column was entered by 40 of them (including by using ditto marks). The entries and number of responses are:

Ramindjeri                                          6

Yaraldi                                               1

Coorong                                             10

Ramindjeri/Ngarrindjeri                         2

Kaurna                                               5

Kogatha                                             1

Narungga                                           1

Yaraldjeri/Ramindjeri                           2

Peramangk                                         3

Murray Mouth/Goolwa

Coorong/Raukkan/Lakes/River Murray     2

And Fleurieu Peninsula                         1

Asper Ngarrindjeri Native Title Claim      6

44    The transcript of the Box Factory Meeting runs to seven pages. It does not record those present, or its starting or closing times. It started with an address by Mr Walker. It is not necessary to record all its content.

45    Mr Walker referred to the historical evidence (presumably that provided with the Ramindjeri application) supporting the proposed claim, and said he had been authorised:

… by Mr Walker extended family and others … to speak on and act on behalf of the Ramindjeri native title cultural matters as the primary (sic) being ratified in wording by numerous heads of families, Ramindjeri families.

46    The Chair of the meeting then suggested that the meeting resolve that only those persons who have completed and signed the declaration (referred to at [36]) be entitled to vote. After some questions, he asked if the meeting accepted that. It is recorded that there were: “(No objections)”.

47    The Chair then sought approval of the meeting that the Ramindjeri claim native title group:

… be identified as the persons who have signed the declaration as attendees together with members of their immediate family.

He asked if the meeting wished to resolve that. Again the transcript records “(No objections)” and the Chair saying: “That’s carried”.

48    The Chair then said it was necessary to decide on a decision making process for the purpose of s 251(b) of the NT Act to decide “whether to make a Ramindjeri native title claim”. He proposed that each person present who had signed the declaration be entitled to cast one vote. That proposal was not discussed or formally put to the meeting although by the subsequent conduct of the meeting it was obviously acquiesced in.

49    Without further discussion, or any formal resolution on that proposal, the Chair then asked for a show “of cards” (given to those who had signed the declaration) on whether an application should be made. On a show of cards, that proposal was passed.

50    The Chair then called for nominations for an authorised representative, confining the nominees to those who held a card. One nominee did not accept his nomination. Mr Walker was proposed and seconded. Another nominee did not accept his nomination. The Chair declared Mr Walker to be the authorised applicant to make the claim. There was no discussion about the nature of that responsibility, or that the authorised applicant may be more than one person, or in terms of s 251B that the authorised person would be able to deal with matters arising in relation to the application.

51    The meeting was then closed. The transcript then records some further remarks by Mr Walker and other discussion

52    The Ngarrindjeri relied on four affidavits of persons asserting as Ngarrindjeri People claims over much of the Ramindjeri claim area, in particular the lower Fleurieu Peninsular area. In them Mr Walker is described as a Ngarrindjeri man. Each identifies as having strong traditional interests in that country. None are included in the Ramindjeri claim group. In two instances, those persons sought to attend the Box Factory Meeting. They said he is a Ramindjeri person but Ngarrindjeri first, as the Ramindjeri are part of the Ngarrindjeri nation. Another said much the same thing, explaining that intermarriage between tribes within the Ngarrindjeri under group meant that there was much shared tribal country. He signed the Table referred to above, but refused to sign the declaration presented to him (referred to in [36] above) and was told to get out. There were, he says, some 100-120 or so others who wished to attend but who were excluded because they would not sign the declaration.

53    There is dispute about how many persons were excluded from the meeting. There are several affidavits of persons present who identify as Ramindjeri, two of whom say the number excluded was very much less, around 20 persons. Those deponents say the Box Factory Meeting was orderly, but do not describe its processes in any detail. There is obviously dispute about the orderliness or otherwise of the process of excluding certain persons from the meeting. There are also several affidavits of persons included in the Ngarrindjeri claim group who say they did not consent to their inclusion, and who support Mr Walker. There is one further affidavit which, apart from describing the Box Factory Meeting in broad terms, addresses the conduct of one person who was present but did not attend that meeting and matters of the conduct of that person and members of his family on unrelated occasions. I do not think the evidence of such conduct on unrelated occasions assists in resolving the present application.

54    The remaining material to note are the further affidavits of Mr Walker of 30 November 2012, and (after the further hearing of the motion of the State) of 23 October 2013 and 4 November 2013.

55    Mr Walker’s affidavit of 30 November 2012 deals with the Box Factory Meeting. He does not really add to the picture presented by the transcript. He refers to three people present who, he says, supported him at the meeting but subsequently have provided affidavits in support of the Ngarrindjeri claim (referred to at [53] above). He also refers to the circumstances in which some people did not participate in the meeting, although they attended at the Box Factory in response to the advertisement, and to the detailed contents of two of the affidavits filed on behalf of the Ngarrindjeri applicant. The annexures to his affidavit include a report on the cultural heritage projects undertaken by an officer of the South Australian Museum with the Ramindjeri Heritage Association in the 1990s, and the 2003 publication “King Condoy and Princess” being a History of the Walker Family of the Ramindjeri Peoples Fleurieu Peninsula, South Australia. It was apparently published through the Australian Heritage Cultural Development Foundation and the Ramindjeri Heritage Association. It also annexes the affidavits referred to in [53] above.

56    The two later affidavits dispute the status of the Ngarrindjeri claim, and more substantially the affidavit of 4 November 2013 includes some further historical research extracts confirming the existence and activities of Aboriginal people, including Ramindjeri People, in the lower Fleurieu Peninsula.

CONSIDERATION

(1)    Is there a Ramindjeri claim group as described?

57    It is important to note, having regard to certain of Mr Walker’s submissions, that neither the Kaurna People nor the Ngarrindjeri dispute the existence of the Ramindjeri People or tribe. The relevant dispute for present purposes is whether the Ramindjeri are a subgroup of a wider native title group under the name Ngarrindjeri or whether they are a discrete and separate native title group holding the native title rights over the Ramindjeri claim area.

58    Consequently, there is no surprise that there is material which records the existence of a Ramindjeri group of people in the Adelaide Plains and Fleurieu Peninsula areas. The State has referred to “The Folklore, Manners, Customs and Languages of the South Australian Aborigines”, Taplin ed 1879 and more recently “A World that Was”, Berndt and Berndt, 1993. The first of those texts supports the proposition that the Ramindjeri group represent a clan of the larger Ngarrindjeri group with its own totem or “ngaitye” – in the case of the “Ramidjeri” the totem is the wattle gum. The second gives a more detailed analysis of the composition of the Ngarrindjeri group. The authors conducted extensive research in the 1940s. They confirm there is, and was, a dialectical or language group (Narrinyeri or Kukabrak) covering roughly the area of the Ngarrindjeri claim area, with different socio-cultural and linguistic groups adjacent to but away from that area. In that area, the various subgroups or clans had a common language with dialectical variations, and through matrimonial relationships they could move freely over the area and share hunting and ceremonial activities and important meetings, and trade amongst themselves within settled routes. The Ramindjeri tribe or clan was identified as within that wider group. There is other material in the extracts provided by Mr Walker. I do not need to refer to it all in detail.

59    In those circumstances, as a matter of general principle, I would determine this ground of the strike-out motion as not made out. In other words, but for what follows, I would refuse to strike out the Ramindjeri claim on this ground. That is consistent with the State’s position on this arm of the strike out motion.

60    There are two observations I make on the material relied upon by Mr Walker.

61    The first is that there is very little material to support the very large claim area of the Ramindjeri claim. In particular, there is little material to support the existence of native title rights and interests over the large sea areas of the claim. There is also relatively little material to support the claim to native title rights and interests over Kangaroo Island. That is not to prejudge those matters, but is simply an observation about the content of the presently provided material.

62    The second observation is prompted by the table completed at the Box Factory Meeting. It is obviously the case that a number of those present, at least those who described their country, were more focused on a smaller geographical area than the Ramindjeri claim area in the vicinity of the Murray River Mouth and the Coorong. Some of the extracted historical research suggests that is the tribal area of the Ramindjeri People. Again, that is not a prejudgment of the issue, but an observation about some of the material presently before the Court.

63    However, for the purposes of the strike out application, I consider that the conduct of the Box Factory Meeting is critical.

64    The Ramindjeri claim group does not now specify any apical ancestors. That was removed by the amendment. It specifies a list of 152 names (and presumably includes the descendants of those persons). Even if the apical ancestors were to be re-inserted, by the identification of King Condoy or Princess (his daughter Sally Walker), the Box Factory Meeting, in its terms, means that the Ramindjeri claim group on whose behalf Mr Walker was then authorised to bring a claim does not represent all the people who are or would be descendants of that or those apical ancestors.

65    The Ramindjeri claim group, as resolved upon at the Box Factory Meeting, is those persons who signed the declaration as attendees and members of their immediate families. Even assuming the only apical ancestors are King Condoy and Sally Walker, that formulation excludes the descendants of those apical ancestors who did not attend the meeting. They may not have seen the notice. They may have been unable to attend. It is possible (but for this purpose I do not assume it) that they may have attended but not been allowed to participate in the meeting because they would not sign the declaration.

66    Because, on that resolution, the Ramindjeri claim group was so confined, it is not shown to constitute all the apical ancestors of those two persons, and so it does not constitute all the Ramindjeri People. That is a requirement of the NT Act.

67    For that reason, the Ramindjeri claim should be struck out.

(2)    Is the Ramindjeri claim properly authorised?

68    In my view, Mr Walker in any event cannot be shown to have been duly authorised to bring the Ramindjeri claim.

69    Despite his assertions that the authorisation was given at the Box Factory Meeting in accordance with Ramindjeri traditional laws and customs, that is clearly not the case. The way the meeting was conducted by allowing votes only to those who made declarations, and then by casting votes by a show of cards demonstrates that. It was a contemporary process rather than a traditional process.

70    Then it is necessary to look to the Ramindjeri application to see how it is said to have been authorised. It refers to resolutions passed at two meetings on 20 October 2008 (the NNTT Meeting) and 16 December 2009 (the Box Factory Meeting).

71    As to the NNTT meeting, there are no details of how the meeting was called, by whom it was called, how notice of it was given, who attended, or how decisions were made at the meetings. The Native Title Registrar’s reasons for refusing to register the Ramindjeri application indicate that the first meeting was an unadvertised informal meeting of the NNTT, as part of its mediation process. It cannot have been a basis for authorising Mr Walker to bring the Ramindjeri claim.

72    In my view, Mr Walker in any event cannot be shown to have been duly authorised to bring the Ramindjeri claim.

73    Despite his assertions that the authorisation was given at the Box Factory Meeting in accordance with Ramindjeri traditional laws and customs, that is clearly not the case. The way the meeting was conducted by allowing votes only to those who made declarations, and then by casting votes by a show of cards demonstrates that. It was a contemporary process rather than a traditional process.

74    Then it is necessary to look to the Ramindjeri application to see how it is said to have been authorised. It refers to resolutions passed at two meetings on 20 October 2008 (the NNTT Meeting) and 16 December 2009 (the Box Factory Meeting).

75    As to the NNTT meeting, there are no details of how the meeting was called, by whom it was called, how notice of it was given, who attended, or how decisions were made at the meetings. The Native Title Registrar’s reasons for refusing to register the Ramindjeri application indicate that the first meeting was an unadvertised informal meeting of the NNTT, as part of its mediation process. It cannot have been a basis for authorising Mr Walker to bring the Ramindjeri claim.

76    The evidence about how the Box Factory Meeting was conducted leads me to the following conclusions.

77    Firstly, on Mr Walker’s evidence, the meeting was a step only in the authorisation process because it followed a series of meetings of unspecified Ramindjeri families on unspecified occasions when apparently he was selected to be the Ramindjeri representative to bring the claim. That consultation process is not exposed sufficiently to be satisfied about it appropriateness or its outcome. It also raises questions about whether the Box Factory Meeting was capable of authorising Mr Walker to bring the Ramindjeri claim, because there had been some traditional consultation process preceding it.

78    There are no records of, or minutes of the earlier meetings.

79    Secondly, Mr Walker said at that meeting that the consultative process he had already undertaken had led to his status as an authorised applicant, so it is not clear whether those at the meeting really had – or thought they had any role to play. That may be reflected in the absence of any discussion on the critical resolutions.

80    Thirdly, having regard to its significance, in my view the notice of the Box Factory Meeting was not adequate to provide all the potential claim group to participate in the decision making process. It is not explained why other means of publicity (through newspapers or newsletters published by Indigenous bodies or published in the particular areas of or parts of areas of the proposed Ramindjeri land claim) were not adopted. It is not clear why the Ramindjeri families referred to by Mr Walker were not notified by letter. It is not clear that there was any attempt made through anthropological sources to identify those who may have constituted the Ramindjeri group, or indeed to confirm that the only focus should be on the apical ancestors King Condoy and Sally Walker: cf Bollison on behalf of Southern Noongan Families v State of Western Australia [2004] FCA 760 per French J at [45].

81    Fourthly, the table of attendees produced by Mr Walker is clearly not reliable. It includes some people who were excluded from the meeting, and it apparently does not include all who did attend. The table does not indicate who was given the voting cards. There is no list of who was given the voting cards, or who completed the declaration. It is not clear that those, or at least some of those, who were not admitted to the meeting because they would not complete the declaration were not descendants of the apical ancestors referred to above, or of other Ramindjeri ancestors. It is not clear that those who identified as (for example) Coorong on the table accepted that the claim area appropriate to the Ramindjeri People was the wider claim area as expressed or some more confined area. It is not clear if some of those listed in the Table as other than Ramindjeri, such as the person described as Kugatha, attended the meeting and was given a voting card.

82    Fifthly, although there is some evidentiary basis for a finding that some of those who sought to, but were not permitted to, attend the meeting did not claim to be Ramindjeri, there is also some evidentiary basis for a finding that some of those who sought to, but were not permitted to, attend the meeting identified as Ngarrindjeri but of the Ramindjeri tribe or subgroup and wished in that capacity to vote against the proposal. The notice of the meeting did not prevent them from participating, but the requirement of the declaration (which was not foreshadowed by the notice) and that effect. To prevent such people who may identify as Ramindjeri from participating means that not all the potential claim group participated in the meeting.

83    There are other features of the meeting which lead to the firm view that there was no proper authorisation by the Ramindjeri People as a claim group. The process of the meeting, as discerned from its transcript, indicates that the process and procedures for the meeting was not decided by those who sought to attend it, or even by those who did attend it. Its process and procedures, including the eligibility criteria for those to attend (the declaration) were imposed as only those who had completed the declaration were able to attend. The resolution as to how the Ramindjeri claim group be constituted was put by the Chair. The only opportunity to approve a process (that proposed by the Chair) was on the motions proposed by the Chair whether to make the Ramindjeri application and who to appoint as the authorised applicant.

84    In my view, those considerations point to a clear conclusion that Mr Walker has no reasonable prospect of demonstrating at a full hearing of the Ramindjeri application that he was duly authorised by all the persons who would constitute the group rights of the Ramindjeri People (whether as a separate native title claim group or as a subgroup of the Ngarrindjeri People) to bring the Ramindjeri claim on their behalf as required by s 225 and 251B. Indeed, in my view, he has no prospect of establishing that. I also consider that Mr Walker has no reasonable prospect of establishing that there was a decision of all the persons who may hold native title rights and interests over the Ramindjeri claim area as Ramindjeri People to bring the claim.

ORDERS

85    In addition to the orders as to joinder foreshadowed at [14] above, for the reasons given I order that the Ramindjeri application be dismissed.

Associate:

Dated:    5 September 2014