Adnyamathanha People No 1 v The State of South Australia

The Material adduced in Support of the application 6 On the application, the ACDF appeared by its executive officer. I raised the adequacy of the material upon which the ACDF sought to rely, and suggested that consideration be given to further adjourning the hearing so the ACDF might advance more cogent or further material in support of the application. By that time extensive written submissions had been filed in each matter in opposition to the application. The ACDF, therefore, by that time had the opportunity of knowing the nature and extent of the opposition to its application and the reasons for it. I was concerned to ensure that the ACDF put its best case forward. I pointed out the nature of the test to be applied under s 84(5) of the NT Act. 7 After some consideration, the ACDF determined to proceed with the application on the material it then had available. It is desirable to set out in a little detail the material upon which the ACDF relies. It has three sources. The first is the material accompanying its Notice of Intention to Become a Party to an Application filed on 1 August 2003 (the Notice). The Notice describes itself as a Form 5 notice, but that form is appropriately given only within the notification period specified under s 66: see s 84(3)(b). The Notice has been treated as the initiating document for the present application under s 84(5). The second is the material enclosed with or referred to in a supplementary submission in the form of a letter to the Court dated 23 August 2003 (the Supplementary Submission). The third is a bundle of documents produced at the hearing and collectively marked Exhibit A (the Exhibit material). 8 The Notice included an 11 page submission by the ACDF. It enclosed pp 4-16 of a document which is described as 'Putawatang-Ochre Cove Heritage and Management Study'. That study records that it was prepared following consultation with the Ramindjeri Heritage Association (RHA) and the Peramangk Heritage Association (PHA) and others including Howard 'Barney' Lindsay, Ted Roberts and Karno Walker about relevant cultural material 'concerning the Permangk, the Ramindjeri and their lands'. 9 The Notice also includes the following: · Document under the heading of the ACDF signed by nine persons describing themselves as 'Traditional Owners' and on behalf of B.I.R.A. Inc., Mirning, Peramangk, Ramindjeri and Barngarla. It is an instruction to the Minister for Aboriginal Affairs and Reconciliation and Regional Affairs of South Australia (the SA Minister) to recognise the traditional ownership status of the signatories and the requests that the signatories be included on the State Aboriginal Heritage Committee under the Aboriginal Heritage Act 1988 (SA) (the AH Act).

· Letter from the South Australian Ombudsman to the RHA dated 24 July 2003 apparently responding to a complaint that the RHA had not been included in consultative processes undertaken by the Onkaparinga Council.

· Letter from the PHA to the SA Minister dated 16 July 2002 requiring the SA Minister to consult with the traditional Peramangk People in accordance with s 13 of the AH Act, in particular with respect to areas in the Willunga Hills and the Fleurieu Peninsula.

· Letter dated 15 March 2001 from the PHA to the ALRM regarding overlaps in the Kaurna claim area with the area of the Peramangk boundaries.

· Letter dated 11 October 2001 from the ALRM to Mr J Williams (apparently on behalf of the PHA or the RHA).

· Letter dated 10 September 2001 from the ALRM to Mr J Williams (also apparently on behalf of the PHA or the RHA).

• Letter signed by 'Traditional Owner' to the Crown Solicitor for South Australia Indigenous Land Use Agreement Negotiating Team undated, but apparently sent in about August 2002, regarding consultations under the AHC Act on behalf of the RHA and the PHA and 'other Traditional Owners …' regarding their opposition to the proposed changes to the AHC Act. The Supplementary Submission included the registration certificate and Constitution of the ACDF, a two page document of the ACDF apparently in the nature of a mission statement and description of its activities and including a list of its 'members' (under its constitution, members of its council). 10 The Exhibit material comprises a series of unsigned proposed statements of Henry Croft described as a Barngarla person; of Karno Walker described as Chairman of the RHA and a leader of the Ramindjeri People; of Clem Laurie described as Chairman of the Yirkala/Mirning Trust Inc. and a senior elder of the Mirning People; of Edward Roberts described as Chairman of B.I.R.A. and a senior elder of the Bira Kokatha lands; and a joint 'affidavit' of the ACDF board (sic, council) members, also unsigned. 11 Counsel for the ALRM objected to the use of the unsigned statements comprised within the Exhibit material produced at the hearing. As the ACDF did not take the opportunity which was offered to it to have those statements signed and produced in evidence in that way, I agree that the application of that material should be given no weight. I was not asked to make an order under s 82(1) of the NT Act that the rules of evidence should not apply to that material. It is not acknowledged to represent the views of the putative signatories and is therefore inadmissible. 12 In any event, I do not think that the unsigned statements advance the claim of the ACDF. Each of the individual unsigned statements includes the following: 'I have the right to speak for, maintain, protect and control access to knowledge of the cultural geography of the claim area, including places of significance under traditional laws, customs and practices in the claim area (subject, where relevant, to authority shared, pursuant to that traditional law and custom, by elders of neighbouring groups); I am a member of the ACDF and wish to protect and develop our natural resources from a family and tribal perspective and I have agreed to contribute Family Intellectual property for further research and development and patent protection through the ACDF partnerships.' Those documents assert individual interests, albeit in a very non-specific way. They do not assert any relevant interest in these applications on the part of the ACDF. The board members' unsigned 'affidavit' is in substance a submission. Although not executed, I have had regard to it as such. 13 There is also a facsimile from the Centre for Phytochemistry and Pharmacology, Southern Cross University, apparently sent on 20 August 2003 enclosing a draft of part of a submission for a patent consideration with respect to a method of extraction of plants used to promote healing when directly applied to skin lesions. Finally, the Exhibit material includes a brochure of Osprey Wildlife Expeditions called 'Echoes of the Dreamtime' to provide an illustration of the activities of the ACDF in promoting Australian Aboriginal cross-cultural tours. It is apparently produced by the ACDF. The range of activities to which it refers extends well beyond the boundaries of the claim areas the subject of the 15 applications, and includes at least the Northern Territory of Australia. 14 It is upon that material only, to the extent to which it has weight, that I am asked to be satisfied that the interests of the ACDF itself (as distinct from those of one or more of its councillors or members) may be affected by a determination in each, or one or more, of the proceedings in which the ACDF applies to be a party.

The Claimed Interests 15 A summary of the submission made by the ACDF in support of its application is contained in its principal submission in the Notice in the following terms: ''Other Acts such as the Pastoral Act, the Crown Lands Act, the Administration and Probate Act and the National Parks and Wildlife Act all have reference to Aboriginal peoples rights and interests. It can be argued that this current legislation, when taken together, reflects the original intent of the Foundation Act, Royal Instructions and the Letters Patent irrespective of any perceived rights to be granted under Native Title. We believe our members have established their primary hereditary rights to land. We are further concerned about the potential for the Native Title process and Federal Court decisions to err at law and also to be in conflict with the Racial Discrimination Act, with respect to our members' ability to realise their inheritance and heritage rights under existing common law, having its origins in the Royal Instructions, i.e. Crown Law, to recognise existing indigenous land rights in South Australia, unlike the rest of Australia. We would also like to formally make notice that Mr Iain C. Greenwood is representing Clem Lawrie on behalf of the Mirning People Claim No. WAG6016/98. As the Mirning claim has established a number of prima facie rights including trade rights in Natural Resources and interaction protocols for "overlapping" groups and interests, based on existing common law rights, we propose that the Mirning Native Title claim be progressed as a "pilot" test mediation, in order to address and hopefully resolve these issues. Mr Iain C. Greenwood also acts for the Ramindjeri and Peramangk / River Murray groups, and issues with both the Ngarrindjeri and Kaurna Native Title claim have a high priority due to impending heritage and natural resource developments.'

Consideration 16 The ACDF is incorporated under the Associations Incorporations Act 1985 (SA) from 4 February 1993. Its membership is said to be ' … open to all Aboriginal people 18 years and over and their spouses and families and who are accepted as members as [sic] of the ACDF, by invitation of the council, and who agree with the objectives of the ACDF.' Management of the ACDF on matters on policy is vested in the ACDF at its periodic meetings. Its day to day activities are the responsibility of a council elected at its annual general meeting. Its council comprises nine voting members, including its officers, all of whom are elected by a meeting of the ACDF. There may be co-opted members of its council, but they are not entitled to vote. Hence, membership of the ACDF, although theoretically open to all Aboriginal people aged 18 years or over, is dependent upon the invitation to membership being made by the council and the council's acceptance of the individuals who then apply for membership and provided that such persons agree with the objectives of the ACDF. 17 The objectives of the ACDF, according to its Constitution, relate to the regaining of traditional land by purchase or lease of 'Homelands Agreement', the preservation of traditional history and culture, the establishment of cultural and information centres, the development of learning of culture and heritage, the exploration of future conservation initiatives, and to provide opportunities to Aboriginal persons to participate in those activities, to develop their traditional expertise, and to promote their welfare and development. The objectives also include acting on behalf of Aboriginal people and organisations associated with the ACDF, and generally 'to promote the interests of Aboriginal people as they relate to the overall implementation of the policies of self-determination and self-management'. 18 In its mission statement, the ACDF indicates: 'The ACDF is a community organisation specifically created and incorporated in 1992 to provide support for Aboriginal Community and cultural Development Programmes across South Australia and elsewhere. Its [sic] main task is to assist in creating and implementing suitable programs for community initiatives that recognise the individual needs and resources of particular Aboriginal groups.' The document describes the mission as: 'Facilitating integrated research, conservation and management of indigenous and non-indigenous heritage, natural eco-systems and the environmentally sustainable economic utilisation of these resources involving indigenous and non-indigenous local people, facilitating interpretation, education and a sense of sacred place and custodianships for the fragile eco-culture systems of the earth.' 19 The objects and purposes of the ACDF so identified are said to indicate that its interests may be affected by a determination in each of the 15 proceedings. It is not sufficient, however, simply to demonstrate the necessary potential for the interests of some one or more of the members of the ACDF to be affected. It must be the interests of the ACDF which are addressed: see per Black CJ in Arakwal at 8 and per Merkel J at 43. Bodies representing farmers in (Wooldridge in Gomilaroi), field and game interests, and mining interests (Harrington-Smith on behalf of The Wongatha People v State of Western Australia [2002] FCA 184) have been held to have insufficient interests to be joined as parties to applications for the determination of native title. The ACDF does not claim to carry out the functions of, or similar to those of, a representative body for any particular area under Part II of the NT Act (cf Munn v State of Queensland [2002] FCA 486; Bissett v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365; Brierley on behalf of the Walbunja People v Minister for Land & Water Conservation (NSW) [2002] FCA 1209; Simms v Minister for Land and Water Conservation [2002] FCA 15; (2002) 193 ALR 257. 20 I do not discern simply from the Constitution of the ACDF and the statement of its mission and objectives that it has interests in the proceedings in which it wishes to become a party that may be affected directly by a determination in any of the proceedings. Its general functions and purposes will not be directly impaired by such a determination. To draw a conclusion to the contrary would require specific evidence about that. It is not a matter which should be the subject of speculation. The submissions on its behalf did not identify in any precise way how its performance of its functions, as discernable from its Constitution, may be affected by a determination in any of the proceedings, except in a remote or theoretical way. If one were to take, for example, the objective of preserving traditional history and culture, then determination of the existence of the claimed native title rights and interests would be consistent with and served by that determination. But, more importantly, the ACDF does not claim itself to enjoy native title rights and interests, or any other real and substantial interests, in the claim area in this or the other 14 matters in its own right. Such interests as it has are dependent upon, and exist only to the extent that, it has members who enjoy native title rights and interests in the claim areas. Its interests are self-declared, and dependent upon the attitude of those members who enjoy those interests. An association such as the ACDF does not qualify for party status in these applications simply by its establishment to enjoy, by the grant or consensus of the holder of native title rights and interests, the privilege of certain of those rights and interests. If, on the other hand, the claim to native title rights and interests in any of the matters is disputed by some one or more of the ACDF members, it is the individual member or members whose competing claim may be affected by the determination sought. 21 It is therefore necessary to address the particular claims made by the ACDF to determine the application. 22 As is self-evident, the summary of the ACDF submission is somewhat cryptic. It can only be understood by reference to the more general submission. The submission claims that there are legal, historical and environmental considerations relevant to the application by the ACDF to now be joined as a party. The legal considerations are themselves hard to understand, but in my view upon analysis do not demonstrate any relevant way in which the ACDF's interests may be affected by a determination in any of the proceedings. It is necessary to identify and address what interests it claims by reference to the 'legal' considerations to reach that conclusion. I shall address them in turn. 23 The ACDF claims that its interests may be relevantly affected because it is involved in securing equal protection under the law in the protection of indigenous traditional title so as to avoid contraventions of the Racial Discrimination Act 1977 (Cth). It is sufficient to observe that a sufficiently clear and direct interest involves more than asserting the role of ensuring the proper application of the law to indigenous people. The assumption of such a role does not demonstrate an 'interest' as that term is used in s 84(5). Nor does it demonstrate an interest in respect of a particular claim area, so that the determination of the claim may affect that interest. Nor, in this matter, is it shown that the determination of any of the claims may affect the ACDF's capacity to perform the function it has described. 24 The ACDF then asserts that the extinguishment of native title, or the non-recognition of claimed traditional title, does not mean that traditional Aboriginal title in land and traditional Aboriginal affiliations with land do not continue to exist. The claim, whether it be correct or not, cannot demonstrate a relevant interest for the purposes of s 84(5). The claim is not that the ACDF, whatever the determination in the several proceedings, itself has any claim to enjoy directly traditional aboriginal title in, or affiliations with, land. At best it is a derivative claim. Even if the proposition underlying the contention be correct, the relevant interest would lie with the individuals who would enjoy the traditional aboriginal title in, or affiliations with, the particular land which is the subject of the 14 applications. 25 The ACDF next asserts a relevant interest somehow arising under s 5(3) of the Administration and Probate Act 1999 (SA) (the A and P Act) as it has a particular function to facilitate inquiries to be pursued in respect of the 'forfeiture of land' by Aboriginals in South Australia, including specifically an estate in the claim area of the De Rose Hill native title determination application: see De Rose v State of South Australia [2002] FCA 1342. The approach is, in my judgment, misconceived. The A and P Act deals with the granting and revoking of probate and administration in South Australia, the vesting and administration of the estates, and distribution upon intestacy. The A and P Act is a consolidation of earlier legislation. Section 3(5) of that Act is included in the saving provisions following the repeal of the earlier legislation. It states that: 'All offences committed, and all liabilities, forfeitures, and penalties incurred or imposed, or liable to be imposed, before the passing of this Act, may be tried, punished, inquired into and enforced under this Act.' I do not consider that s 3(5) of the A and P Act has any operation relevantly with respect to the Court's function in hearing and determining applications for the determination of native title made under s 61 of the NT Act. There has been no argument presented to support the proposition, even as a matter of generality, that it entitles any particular aboriginal person or persons in South Australia to use it as a vehicle to complain of the forfeiture of aboriginal native title rights and interests in land in South Australia. The matters with which the A and P Act deals do not support such a view. Even if it does, there is nothing to show that any person proposes to invoke that provision to pursue such a claim in respect of any of the claim areas in the 14 applications. Nor, in any event, is it shown even on an arguable basis that the ACDF, as distinct from particular aboriginal persons or groups, would have the standing to do so. 26 The next 'legal' contention of the ACDF is based upon the AH Act and the 'Pastoral and Crown Lands Act' (presumably the Pastoral Land Management and Conservation Act 1989 (SA)). It is claimed that those enactments provide for the preservation of rights in aboriginal peoples in South Australia to pursue their 'residual rights' and, in these proceedings, to ensure that the AH Act is not used to 'overrule Aboriginal tradition in terms of Aboriginal people's actions in relations to signs, objects and remains', and so as a means of giving s 37 of the AH Act its fullest effect. It is claimed that those rights may be adversely affected by possible (unspecified) amendments to the AH Act or by the proposed Natural Resources Management Bill 2003 (SA). It is also claimed that the feared or anticipated exercise of such legislative or executive powers in South Australia may contravene s 46 of the Trade Practices Act 1974 (Cth) by reason of the State of South Australia refusing 'to deal in trading of land where there are Aboriginal interests in delaying resolution of natural resource ownership issues'. 27 None of those contentions, assuming them to be substantively correct (it is not necessary to determine if that is the case) indicates that the ACDF on this application has any interest or interests which may be affected by a determination of any of the existing proceedings. It is unnecessary for me to discuss and consider the extent to which, if at all, the ACDF has legitimate interests in pursuing matters under those enactments in respect of those topics. It is clear that its pursuance of those matters, even if it is allowed to do so and has the standing to do so, do not involve interests relevant to the determination of native title rights and interests under the NT Act. 28 The next contention of the ACDF in support of its application is that, because the Letters Patent to the Colonisation Commissioners directed the recognition and non-interference with the occupation or employment of lands by the aboriginal persons in South Australia, so that aboriginal communities in South Australia maintained distinct proprietary rights over the whole of the lands in the then Colony of South Australia in the Aboriginal peoples of South Australia, and that such rights were then recognised, the ACDF should be allowed to assert such claims in these proceedings. It asserts the need to adopt that role because, it says, the resolution of these claims by the relevant native title claim groups and the ALRM and the State of South Australia, and such others as may be involved, through an indigenous land use agreement would amount to an unspecified breach of the NT Act because it would diminish the rights of the NT claim group. 29 Those complex propositions must fail. What underlies them, in reality, is the assertion that there are other aboriginal persons or groups who claim native title rights and interests in each of the claim areas (or part of the claim areas) of the 14 native title determination applications, or who assert that the authorisation of the claimants in each of the applications is not properly given under s 251B of the NT Act so that they may not enter into an indigenous land use agreement with respect to the native title rights and interests. If that be correct, the interests which may be affected by the determination of the applications are those of the particular aboriginal persons or groups. The interests are not those of the ACDF. That is not to say that the ACDF may not support such aboriginal persons or groups in serving to assert and protect their claimed interests. It may do so. But the ACDF itself does not have the interest sufficient to qualify itself for the status of a party in any of the proceedings under s 84(5) because it can, and wishes to, support those who may have such interests. 30 In fact in each of the applications in South Australia called the Barngarla application, the Mirning application and the Ted Roberts application (Matters SG 6011 of 1998, WA 6016 of 1998, and SG 6005 of 1998 respectively) it appears that persons identified as members of the ACDF are members of the relevant native title claim and, in the Barngarla application, some of the authorised claimants on behalf of the native title claim group. 31 The second category of claimed interest was said to arise from historical consideration. The historical considerations are said to be that the native title claim groups and the areas the subject of the 14 applications for determination of native title are based upon boundaries with which the ACDF and its members disagree. The members of the ACDF are, therefore, said to be disadvantaged in their ability to defend their boundaries and rights. The submission asserts that the ACDF "would be willing to provide substantial evidence to this effect". It has not done so on this application in respect of any particular application. The problem again confronting the ACDF is that, assuming that its members or certain of its members dispute the areas claimed by the designated claim groups in each of the applications, or assert overlapping and inconsistent rights over those claim areas, it is for those individuals or groups of individuals to assert their rights by seeking to become parties to each of the applications. The ACDF does not claim to enjoy the rights. At best it is acting as a representative or mouthpiece for those who claim that their rights or interests may be affected. It may do so. But the adoption of that role does not convert 'its members' claimed rights or interests into its rights or interests. It does not itself thereby have interests which may be affected by the determinations in all or any of the applications. 32 The third general area of asserted interests on the part of the ACDF is said to be environmental considerations. They are described as 'the assessment of data in other native title claims has been limited, especially with respect to boundaries' and that members of the ACDF have boundaries that are consistent with environmental and cultural parameters. The same observations must be made as those about the claimed interests of the ACDF arising from what it called historical considerations. 33 Reference should be made to the other material adduced by the ACDF. The status and composition of the RHA and of the PHA is not disclosed. Nor is the relationship of those entities to the ACDF. I infer they have some common membership. It may be that members of the RHA and the PHA claims native title rights and interests in certain of the claim areas, I suspect principally in part of the area of the Kaurna claim (Matter SG 6001 of 2000). Even without the obstacle of the ACDF being somehow removed from the RHA and the PHA, the same difficulty confronts it: such interests as may be affected by the determinations are those of the individual or groups of individual aboriginal persons and not those of the ACDF. 34 The material does demonstrate that the ACDF has an active role in promoting the articulation and understanding of the relationship of aboriginal persons to country, including by educative and eco-tourism programs. It has an interest in maintaining the integrity of those programs. It has an interest in furthering the benefits to aboriginal persons of intellectual property which they may own by reason of their traditional ownership of country. Underlying those claimed interests is the proposition that it thereby has the interest to assert differently constituted native title claim groups, or different claim areas, in the 14 applications. It says it needs to be able to do so to protect those claimed interests. But the claimed interests only exist to the extent to which it represents, or is able to deal with, the true native title claim groups in respect of the claim areas. The interests which it seeks to assert, therefore, are the interests of individual or groups of individual aboriginal persons different from the present native title claim groups. Those interests are not, in terms of s 84(5), its interests. They are the interests of the individual or groups of individual aboriginal persons. Those individual or groups of individual persons are the persons who, if they wish to do so, may seek to become parties to the applications. The ACDF does not acquire their interest by such persons becoming its members. Nor does it acquire their interests by such persons wishing it to protect or promote their interests: see e.g. per Lindgren J in Harrington-Smith at [2]. 35 That does not mean, as I said earlier in these reasons, that the ACDF may not assist such persons in seeking to protect or promote their interests in each or any of the 14 applications. It may do so, in a variety of ways. But it is those persons who (on the ACDF material) have the interests to which s 84(5) may refer. Whether they do so would need to be addressed by separate applications in each proceeding, properly supported by affidavit or other admissible material. The application would need to explain the particular interest or interests which is or are said to be possibly affected by the determination in respect of that claim or claim area with some precision, and how the determination may affect that interest or those interests: see per Merkel J in Rubibi v State of Western Australia [2002] FCA 876 at [17], [18], [22] and [23]. 36 I am therefore not satisfied that the ACDF itself, notwithstanding its concern to advance, promote and protect the interests of its members and more widely the aboriginal communities in South Australia, has any interests which may be affected by a determination in any of the 14 applications. Its contentions do not identify any particular claimed native title right or interest in respect of any of the claim areas which, if determined to exist, might affect any of its interests in the sense explained in the Arakwal case. 37 The application by the ACDF to be joined as a party to each of the proceedings under s 84(5) in each instance is therefore refused. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Aboriginal Cultural Development Foundation Incorporated: Mr IC Greenwood, Executive Director of the Aboriginal Cultural Development Foundation Incorporated appeared in person

Counsel for the Adnyamathanha Peoples: Mr G Harbord

Solicitor for the Adnyamathanha Peoples: Johnston Withers

Counsel for the State of South Australia: Ms D Seal

Solicitor for the State of South Australia: Crown Solicitor's Office

Counsel for the Aboriginal Legal Rights Movement Ms S Phillips with Ms S Skyring

Solicitor for the Aboriginal Legal Rights Movement: Aboriginal Legal Rights Movement

Counsel for the Local Government Association: Mrs R H Craddock

Solicitor for the Local Government Association Mrs R H Craddock

Counsel for the Pastoralists and Water Licence Holders Mr O W Linde

Solicitor for the Pastoralists and Water Licence Holders Mellor Olsson

Counsel for the Cooper Basin Oil & Gas Ms D Howson Producers:

Solicitors for the Cooper Basin Oil & Gas Producers Kelly & Co. Date of Hearing: 11 September 2003

Date of Judgment: 28 November 2003

BETWEEN: ADNYAMATHANHA PEOPLE NO 2 SG 6002 of 1998

BETWEEN: GAWLER RANGES NATIVE TITLE CLAIM SG 6020 of 1998

BETWEEN: BARKANDJI NATIVE TITLE CLAIM SG 6023 of 1998

BETWEEN: NGARRINDJERI NATIVE TITLE CLAIM SG 6027 of 1998