Federal Court of Australia

Antakirinja Matu-Yankunytjatjara Aboriginal Corporation RNTBC v State of South Australia [2026] FCA 1663

ORDERS

the court notes that:

A.    In accordance with order 1 made by Registrar Parkyn on 27 August 2026, on 3 September 2026 the Applicant filed and served on each respondent party a proposed agreement under section 87 of the Native Title Act 1993 (Cth), in a form agreed by the Applicant and the State, for the making of a Revised Native Title Determination (Proposed Section 87 Agreement).

B.    Pursuant to order 3 made by Registrar Parkyn on 27 August 2026, each respondent party other than the State was to file and serve on the Applicant and the State either:

(a)    a signed version of the Proposed Section 87 Agreement, noting that a respondent may comply with this step by filing only the face page of the Proposed Section 87 Agreement, together with the signature page (Signed Section 87 Agreement); or

(b)    a statement of position that identifies that part or parts of the Proposed Section 87 Agreement to which the respondent party does not consent, a brief statement of the reasons for the party’s position and any affidavit upon which the party wishes to rely (Statement of Position); or

(c)    a notice seeking leave to withdraw as a party to the proceeding.

C.    The following respondent parties have filed a Signed Section 87 Agreement:

(a)    Second Respondent (Challenger 2 Pty Ltd);

(b)    Sixth Respondent (Telstra Corporation Ltd); and

(c)    Seventeenth Respondent (Bush Heritage Australia).

D.    Each of the following respondent parties have filed a Statement of Position:

(a)    Third Respondent (Colin Greenfield);

(b)    Fourth Respondent (McDouall Peak Pty Ltd);

(c)    Fifth Respondent (Janet Caenwyn Lumb, Jake Mitchell Fennell and Francesca Elizabeth Lumb);

(d)    Seventh Respondent (Ronwill Pty Ltd), Eighth Respondent (Engorra Pty Ltd) and Ninth Respondent (Williams Pastoral Holdings Pty Ltd);

(e)    Tenth Respondent (Mulgathing Pty Ltd) and Eleventh Respondent (Commonwealth Hill Pty Ltd);

(f)    Twelfth Respondent (Dawn Margaret Brown);

(g)    Thirteenth Respondent (Mount Eba Pastoral Pty Ltd), Fourteenth Respondent (Mount Eba Trading Pty Ltd) and Fifteenth Respondent (Ingomar Pastoral Company Pty Ltd).

E.    The Sixteenth Respondent (Amplitel Pty Ltd) has withdrawn as a party.

The Court Orders that:

1.    The Twelfth Respondent’s (Dawn Margaret Brown) requests dated 9 September 2026 for leave to issue subpoenas to Andrew Collett, Craig Elliott and Kim MacCaul, and the application to raise as an issue the description of native title holders in this proceeding, are refused.

2.    On or before 11 November 2026, the Applicant is to file:

(a)    any affidavits containing the evidence on which the Applicant relies; and

(b)    a written outline of submissions,

in support of the Revised Native Title Determination and in response to the Statements of Position.

3.    On or before 25 November 2026, each respondent who has filed a Statement of Position is to file:

(a)    any affidavits containing the evidence on which the respondent relies; and

(b)    a written outline of submissions,

in support of its Statement of Position.

4.    On or before 25 November 2026, the State is to file:

(a)    any affidavits containing the evidence on which the State relies; and

(b)    a written outline of submissions,

in response to the Statements of Position.

5.    The proceeding be referred to mediation before a Registrar of the Court to be conducted prior to 11 December 2026.

6.    The Revised Native Title Determination application is listed for hearing on 28 January 2027 commencing at 10.15 am in Adelaide, for 1 day.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    These reasons concern applications made by the twelfth respondent, Dawn Brown:

(a)    under r 24.01 of the Federal Court Rules 2011 (Cth) for leave to issue subpoenas to produce documents to each of Andrew Collett, Craig Elliott and Kim MacCaul; and

(b)    for leave to raise, as an issue in the proceeding, the correctness of the description of the native title holders in the Antakirinja Matu-Yankunytjatjara native title determination which was determined by the Court on 11 May 2011 in Lennon v State of South Australia [2011] FCA 474 (AMY Determination).

2    Ms Brown is representing herself in this proceeding.

3    For the following reasons, the applications are refused.

Background

4    This proceeding is an application under s 61 of the Native Title Act 1993 (Cth) (NTA) to vary the AMY Determination.

5    The variation application has been brought by the prescribed body corporate in respect of the AMY Determination, being the Antakirinja Matu-Yankunytjatjara Aboriginal Corporation (AMYAC), on behalf of the common law native title holders.

6    The variation application is being considered in parallel with a compensation application (being proceeding SAD 61 of 2022) which has also been brought by AMYAC on behalf of the common law native title holders in respect of the land and waters of the AMY Determination area. It is presently contemplated that AMYAC will enter into an Indigenous Land Use Agreement (ILUA) with the State of South Australia to settle the compensation application and will seek consent orders for a determination of compensation in respect of areas where native title has been extinguished. Under the ILUA, AMYAC also proposes to surrender native title in certain areas of land in relation to which native title has been determined to exist.

7    In the variation application, AMYAC seeks four categories of variation to the AMY Determination.

8    The first category concerns pastoral improvements made to parts of the determination area. Paragraphs 10 and 11 of the AMY Determination assumed that native title rights and interests do not exist in respect of pastoral improvements (such as houses, sheds or other buildings, airstrips, dams or other stock watering points constructed pursuant to a pastoral lease). AMYAC contends that that assumption is incorrect in light of the decision of the High Court of Australia in Western Australia v Brown (2014) 253 CLR 507. AMYAC seeks the deletion of paragraphs 10 and 11 of the AMY Determination.

9    The second category concerns the inclusion of certain parcels of land in the schedules to the AMY Determination which enumerate parcels of land which are excluded from the determination area because native title is extinguished. This variation is required to facilitate the compensation application in respect of such parcels of land.

10    The third category is to include, in the schedules to the AMY Determination, parcels of land in respect of which native title will be surrendered under the ILUA.

11    The fourth category is to correct an error that appears in schedule 5 to the AMY Determination (being areas where extinguishment of native title must be disregarded).

12    Ms Brown became a respondent to the proceeding under s 84(3) of the NTA by filing a Form 5 within the prescribed period, thereby notifying the Court that Ms Brown wanted to be a party to the proceeding. In the Form 5, Ms Brown stated that she is a common law native title holder in the area of the AMY Determination and that her family would suffer prejudice from a consent determination that proceeds on the basis of paragraph 3 of the AMY Determination.

13    Paragraph 3 of the AMY Determination defines the common law native title holders in the following terms:

Under the relevant traditional laws and customs of the Western Desert Bloc, the native title holders comprise those Aboriginal people who have a spiritual connection to the Determination Area and the Tjukurpa associated with it because:

(a)     the Determination Area is his or her country of birth (also reckoned by the area where his or her mother lived during the pregnancy); or

(b)     he or she has had a long-term association with the Determination Area such that he or she has traditional geographical and religious knowledge of that country; or

(c)     he or she has an affiliation to the Determination Area through a parent or grandparent with a connection to the Determination Area as specified in subparagraphs (a) or (b) above,

and are recognised under the relevant Western Desert traditional laws and customs by other members of the native title claim group as having rights and interests in the Determination Area.

14    In the Form 5, Ms Brown contends that her rights in the determination area arise from the “Wilyuru-Midlileri normative system” which is distinct from the “Western Desert Bloc group description” described in paragraph 3 of the AMY Determination. Ms Brown contends that a determination of native title that proceeds on the basis of the description of the common law native title holders in paragraph 3 of the AMY Determination would materially affect her native title rights. That is because the determination would bind her without examining whether the “Wilyuru-Midlileri normative system” governs the area of the AMY Determination. Further, Ms Brown contends that the genealogical material relied upon in the AMY Determination in 2011 contains a “structural error” in the identification of the apical ancestor for her family line. Ms Brown further contends that:

“The 2011 AMYAC determination is under revision (Form 3 in SAD 5/2026), which shows that the identity of the true native title holders is in dispute.”

15    Ms Brown has subsequently filed two affidavits made on 14 July 2026 and 30 September 2026, a submission filed on 6 October 2026 and a statement of position dated 30 September 2026 and filed on 6 October 2026. Each of those documents advances the same central contention, that the description of the native title holders in paragraph 3 of the AMY Determination is erroneous or incomplete in respect of her family. The contention is encapsulated in Ms Brown’s statement of position as follows:

My position is that the connection I and my family hold arises under a distinct normative system, which I refer to as the Wilyuru/Midlilieri system, and that paragraph 3 of the 2011 Determination, framed by reference to the “Western Desert Bloc”, does not identify the group of persons who hold native title under that system. The Minute [of a proposed order for a consent determination] proposes to carry paragraph 3 forward into the Revised Determination without variation … .

The applications for leave to issue subpoenas and raise the issue of the description of native title holders

16    In her applications for leave to issue subpoenas, Ms Brown stated that the documents sought by the subpoenas are relevant to the disputed description of the native title claim group in the application to vary the AMY Determination.

17    The documents sought to be produced by the subpoenas all relate to Ms Brown’s contention that the description of the native title holders in paragraph 3 of the AMY Determination is erroneous or incomplete in respect of her family. The documents sought include genealogical materials that relate to Ms Brown’s forebears and anthropological reports and materials concerning Ms Brown’s family, the “Wilyuru-Midlileri normative system” and the membership of the native title holding group for the area of the AMY Determination.

18    Ms Brown advanced substantially the same contentions in respect of her application to raise the issue of the description of native title holders in this proceeding.

Consideration of applications

19    Ms Brown’s Form 5, and her applications for leave to issue subpoenas and to raise the issue of the description of native title holders in this proceeding, are all based on the erroneous assumption that the present application to vary the AMY Determination involves a reconsideration of the description of the native title holders in paragraph 3 of the AMY Determination.

20    The description of the native title holders was determined as part of the AMY Determination made in 2011 by consent. In the present application, AMYAC does not seek to vary that description. Further, the variations sought by AMYAC to the AMY Determination do not necessitate any reconsideration of that description.

21    As a respondent to this proceeding, Ms Brown has no entitlement to apply to vary the description of the native title holders.

22    It follows that the description of the native title holders is not an issue that arises in this proceeding.

23    A party issuing a subpoena must demonstrate that the subpoena has a legitimate forensic purpose. A subpoena to produce documents should not be issued, and may be set aside, if it seeks the production of documents which do not have apparent relevance to the issues in the proceeding: Seven Network (Operations) Ltd v Fairfax Media Publications Pty Ltd [2023] FCAFC 185; 418 ALR 284 at [35] (Wheelahan, Anderson and Jackman JJ); Wong v Sklavos [2014] FCAFC 120; 319 ALR 378 at [12] (Jacobson, White and Gleeson JJ).

24    In my view, the subpoenas proposed to be issued by Ms Brown do not have a legitimate forensic purpose in this proceeding. The documents sought to be produced by the subpoenas are not relevant to the issues that arise in the proceeding. The documents are only relevant to the description of the native title holders in paragraph 3 of the AMY Determination and membership of the native title holding group, which are not issues that arise in this proceeding.

25    For those reasons, I refuse leave to issue the subpoenas. I also refuse Ms Brown’s application to challenge, in this proceeding, the description of native title holders in the AMY Determination or otherwise seek a variation to the description.

Associate:

Dated: 5 November 2026

SCHEDULE OF PARTIES