The claim, the history of the proceeding, the proposed agreement and determination
5 The main parties to this application are:
(a) the Applicant;
(b) the State of South Australia;
(c) holders of commercial fishing interests within the claim area;
(d) Telstra Corporation Limited;
(e) SA Power Networks;
(f) holders of water licences within the claim area;
(g) twenty seven local councils;
(h) Epic Energy South Australia Pty Ltd;
(i) the South Australian Apiarists Association Inc;
(j) St John Ambulance Australia SA Inc;
(k) Airservices Australia;
(l) Commonwealth of Australia;
(m) Ramindjeri Heritage Association; and
(n) South Australian Native Title Services Ltd.
6 Pursuant to orders made on 7 March 2018, fourteen respondents sought leave to withdraw as a party to the proceeding. That leave was granted. All remaining respondents have now indicated their consent to the orders agreed to between the applicant and the State. Prior to withdrawing, the Ramindjeri Heritage Association objected to the orders. I deal with this objection below. I also deal with an application filed by Mr Michael Coughlan on 19 March 2018, seeking to be joined as respondent party to the proceeding.
7 The original application pursuant to s 61 of the Native Title Act was filed in October 2000. I traced the history of the proceeding until early 2016 in my reasons in Agius v State of South Australia (No 4) [2017] FCA 361 at [10]-[42]. As I noted in those reasons, during those 16 years there were considerable periods of inactivity, and non-compliance with the Court's orders, which were designed to achieve some progress in the proceeding. In March 2016, White J made a number of orders expressly designed to ensure some progress was made towards the filing of material on connection so that discussion on whether a consent determination could be made could be substantively progressed. The connection material was not provided in compliance with those orders, and I discuss the reasons given for this and my view of these reasons in Agius (No 4) at [46]-[50]. Further hearings ensued, with White J continuing to attempt to progress this proceeding, and meeting resistance based on continued claims of inadequate funding - a reason his Honour rejected in terms I set out in Agius (No 4) at [68].
8 On 11 November 2016, White J made a series of orders and directions designed to prepare this matter for trial on connection as a separate question, with the trial scheduled to commence on 3 April 2018 for a period of six weeks. The proceeding was transferred into my docket in March 2017, and it has been case managed towards trial from that point, although it is fair to say the rocky road this proceeding has travelled in the past has continued while it has been in my docket. However it is also fair to say that as it became clear that the Court would insist the trial go ahead at least as to critical aspects of connection, the applicant and the applicant's legal representatives began to work diligently and with renewed focus towards production of the necessary evidentiary material for such a trial.
9 At the time agreement was reached, the proceeding was more or less on track for the trial on aspects of connection to start on 3 April 2018. One experts' conference had been convened by Registrars Colbran and Parkyn late in 2017, and another was scheduled for 14 and 15 March 2018. Therefore, there is a substantial amount of evidentiary material before the Court at the time of this determination, including multiple expert reports on various aspects of connection. This includes oral and written preservation evidence from four members of the native title claim group which was taken by Mansfield J in 2013 and 2014, and outlines of proposed evidence from twelve claim group members. The applicant also filed expert reports (anthropological, genealogical and historical) by Associate Professor Neale Draper, Associate Professor Robert Foster and Dr Skye Krichauff. The State in turn had filed expert reports by Dr Lee Sackett (anthropological) and Mr Tom Gara (ethno-historical).
10 I will draw on some of that material in my description below of the connection of the Kaurna people to the country of the claim area.
11 The application for a determination by consent was formally made on 9 March 2018, although it had been foreshadowed to the Court approximately two weeks earlier, at a case management hearing on 22 February 2018. The Court was informed that the applicant and the State had been in discussion about a possible consent determination since late 2017. On 7 March 2018, orders were made vacating the trial on the basis that the parties' agreement was about to be formalised with an application under s 87.
12 The parties other than the applicant and the State were not provided with any proposed consent determination material until the time of the case management hearing on 22 February 2018. Thus, those parties were placed in a somewhat awkward position of having to decide very quickly whether to agree or not to the proposed determination. This caused difficulties for parties such as the local councils, and the commercial fishing association, in particular, in terms of their legal representatives obtaining necessary instructions. All those parties acted responsibly and promptly in attempting to co-operate with what was a very tight timeline pursued by the applicant and the State.
13 The original s 61 application has been amended twice - first in July 2001, and then very recently in early March 2018, to reflect the terms of the determination to be sought by consent. The 2018 amended application changed (and reduced) the number of identified apical ancestors and removed a claim to the sea to the west of the land boundary of the claim (north of Myponga Beach and south of the Light River) and to the western half of Lake Bumbunga.
14 The amended claim area comprises the most heavily populated area of the State of South Australia, including the city of Adelaide. It covers approximately 7,000 square kilometres and stretches from south of Rapid Bay to approximately Redhill in the north. The eastern boundary of the claim area runs parallel with the crest of the Mt Lofty Ranges and extends north into the Barossa Valley. The western boundary has as its natural marker the coastline of the Gulf St Vincent.
15 However, the determination area itself covers only approximately half of the claim area. The southern boundary of the determination area is a line from Myponga Beach at its most south-western point, then north-easterly to the peak of Mount Compass. The eastern boundary follows the amended claim boundary referred to above until it meets the Light River in the north. The extension of the centre line of the Light River to the sea forms the northern boundary of the area to be determined. The Lowest Astronomical Tide (except where it falls outside the original claim boundary) is the western boundary of the area to be determined. Any land and water outside this determination area is to be dismissed. A map is attached to the Court's determination and orders, but will also be attached to these reasons for judgment as a separate annexure (Annexure A). This map is indicative only, and shows the determined area, with the area to be dismissed shaded yellow. It is not the Court's official record of the determined area. The official record is constituted by the co-ordinates set out in Schedule 1 to the Court's orders.
16 The joint submissions make the following statement (at [35]) about the claim boundary amendments concerning the sea to the west of the land boundary:
While subsequent discussions and negotiations took place between the Applicant and the State in relation to the area seaward of the Lowest Astronomical Tide, the Applicant ultimately chose to amend the claim to remove that area, indicating that a future claim may possibly be lodged. The State raised no objection to the amendment of the claim, and says nothing about any future claim.
17 The term "lowest astronomical tide" is not defined in the orders, but is a reference to the lowest predicted tidal level under average meteorological conditions and under any combination of astronomical conditions.
18 Although at the time agreement was reached, there remained many outstanding issues in dispute between the experts, there were a number of matters on which the experts had agreed either at the first experts' conference, or through their respective reports.
19 It is not in dispute that at sovereignty, Aboriginal people lived in the claim area and, from the time of white settlement, became collectively called the "Adelaide Tribe". They may have been made up of one, or more than one, group or groups. In the joint submissions, the applicant and the State accept the Kaurna People are the traditional descendants of the "Adelaide Tribe". The joint submissions recognise that the claim group's identification as "Kaurna" is a more a recent phenomenon - specifically arising during the 1970s. However, the joint submissions also recognise that claim group members trace their society back through their parents, grandparents, and great-grandparents, particularly at Point Pearce (Yorke Peninsula), Poonindie (Eyre Peninsula) and Point McLeay (mouth of the River Murray). The Court accepts that the use of the name "Kaurna" need not be proven to be one that can be traced back to sovereignty nor proven to have been used continually since that time. It is not at all uncommon in native title cases for group labels to change over time and to be a matter of controversy.
20 I deal below in more detail with the evidence about connection to land, continuity and identified apical ancestors, and what the State has been prepared to accept.
21 A determination is sought only in relation to non-exclusive native title rights and interests, and only in relation to a limited number of parcels of land, seventeen parcels to be precise. They are set out in Schedule 3 to the proposed determination. An indicative map is also attached to these reasons for judgment as a separate annexure (Annexure B), showing the approximate location of each of these parcels in the determination area. Again, this map is not the Court's official record of the determined area. The official record is constituted by the co-ordinates set out in Schedule 1 to the Court's orders.
22 In relation to those seventeen parcels of land, the following rights and interests are identified:
(a) The right of access to the land and waters;
(b) The right to live on, use and enjoy the land and waters including for ceremonial purposes;
(c) The right to take, use, enjoy, share and exchange the resources of the land and waters including by fishing, hunting and gathering, but excluding those resources referred to in item 1 of Schedule 4 of the orders;
(d) The right to conduct funerals and burials on the land and waters;
(e) The right to maintain and protect places of importance under traditional laws, customs and practices on the land and waters;
(f) The right to teach on the land and waters; and
(g) The right to be accompanied on the land and waters by those people who, though not Kaurna persons, are:
(i) spouses of Kaurna people; or
(ii) people required by traditional law and customs for the performance of ceremonies or cultural activities.
23 Those rights are expressed to be for personal, domestic and community use, and to not include the right to trade in, or the commercial use of, the land covered by the determination, or resources in that land.
24 The proposed determination also recognises other rights and interests in respect of the claim area, such as: the rights and interests of the public to use and enjoy reserves consistent with the provisions of the National Parks and Wildlife Act 1972 (SA); the rights and interests of Telstra Corporation Limited as owner and operator of telecommunications facilities within the claim area; the rights and interests of SA Power Networks (and its related and successor entities) to discharge its obligations as the owner and operator of electricity infrastructure within the claim area; the rights and interests of each relevant local government body within the claim area under the Local Government Act 1934 (SA) and the Local Government Act 1999 (SA); and the rights and interests of Epic Energy South Australia Pty Ltd in relation to its ownership and operation of a major gas pipeline within the claim area.
25 As I noted at the start of these reasons, a core component of the agreement reached is that part of the area claimed will be dismissed, and that there will be a determination that native title does not exist in any part of the claim area other than the seventeen parcels specified in Schedule 3 to the determination, and to which I have referred at [21] above. I return to the principles applicable to the making of a determination that native title does not exist below.
26 The claim group has held several information and authorisation meetings to consider whether a consent determination should be pursued and then ultimately, the terms of the consent determination. On 23 October 2017, the prospect and nature of a consent determination was discussed at an applicant's meeting and again at an authorisation meeting on 25 November 2017. At the October 2017 meeting, the applicant instructed its legal representatives to investigate a possible consent determination with the State. On 20 December 2017, a meeting of the applicant unanimously instructed its lawyer to continue negotiating a consent determination. A further meeting of the applicant was held on 31 January 2018. At an authorisation meeting on 18 February 2018, the terms of the consent determination and an ILUA were presented and discussed. The meeting resolved, by majority, to settle and finalise the claim by consent and ILUA, that Kaurna Yerta Aboriginal Corporation (KYAC) would act as the prescribed body corporate, and that the chair of KYAC was authorised to sign on behalf of the applicant for the purposes of performing any functions under the Native Title Act and the ILUA.
27 Three objections have been raised to the matter being resolved by consent. The first was by a member of the applicant, Ms Georgina Williams, and the second was by the Ramindjeri Heritage Association. The third was by Mr Michael Coughlan, who filed an application to be joined as a respondent party on 19 March 2018, two days prior to the date of the consent determination.
28 Ms Williams is one of the individuals who, jointly, comprise the applicant in the Kaurna application. She is a respected senior member of the claim group. Ms Williams notified the Court that she objected to the proposed determination, and sought to be heard about her objection. I granted leave for Ms Williams to appear at two case management hearings in February and March 2018, so that she could explain her position in open Court. It was clear from Ms Williams' submissions that she cares deeply about the protection of her culture, and about her family history. Ms Williams was critical of the compressed time frame in which the claim group had been asked to make decisions about the proposed consent determination and its terms, given that the trial was so close and the matter otherwise would have been progressing to a trial. Ms Williams informed the Court she felt she had not had a sufficient chance to consider all the material she needed to consider to make a decision. She did not agree with the proposal to surrender native title over certain areas, and did not agree with the applicant's claims to other areas being dismissed. She also objected to the failure to include Mullawirraburka as an apical ancestor of the Kaurna people through her fathers' fathers' mother "Emma". It was apparent from the evidence that Ms Williams had made her position known at the authorisation meeting on 18 February 2018.
29 Having heard what Ms Williams had to say, I gave directions enabling Ms Williams to have an opportunity to consider the expert material compiled by the applicants and the responding expert material filed by the State. I also ordered that Ms Williams be provided with assistance from the South Australian Native Title Services (SANTS) to help her understand the basis upon which the claim group had decided to resolve this matter and not continue with the trial that was listed for April 2018. I directed an affidavit be filed on behalf of SANTS deposing to an outline of the topics to be dealt with between Ms Williams and the SANTS lawyer, so that the Court could be satisfied Ms Williams had had relevant maters explained to her. That affidavit was duly filed, as was other affidavit material from Mr Campbell, deposing to the steps taken by him and by counsel to inform all individuals constituting the applicant, including Ms Williams, about the proposed terms of agreement, as well as deposing to specific steps taken to deal with Ms Williams' inquiries and concerns.
30 I am satisfied on the evidence that Ms Williams has had an adequate opportunity to understand the nature and terms of the evidence on connection, to understand the risks attending a contested trial, and to understand the nature and content of the proposed agreement (including the ILUA) which has led to the consent determination. I am also satisfied she has had an opportunity to be informed about the content of the proposed determination. What Ms Williams has chosen to focus on during these opportunities, and how much she has been prepared to accept, are matters for her. The Court also offered Ms Williams an opportunity to seek to withdraw as a person who, jointly, comprises the applicant. She informed the Court that she wished to remain as a member of the applicant, and that she remains opposed to the making of this determination.
31 While the Court has had regard to the objections raised by Ms Williams and her submissions, the views expressed by Ms Williams are not ones that prevent the consent determination being made. It is unfortunate that, at this late stage, there is a significant difference of opinion between members of the applicant, and (it would appear) between at least some members of the claim group. However, the claim group has determined to resolve this matter by consent, and has made that resolution in accordance with processes set out in s 251B of the Native Title Act. The process adopted, pursuant to s 251B(b), was a majority decision-making one. Accordingly, the majority view must prevail. I am satisfied based upon the evidence before the Court that the settlement of this proceeding was properly authorised and considered by the claim group.
32 The Ramindjeri Heritage Association (RHA), a respondent party, also raised an objection to the matter being resolved by consent. The RHA sent an email communication to the Court on 15 March 2018 to object to the determination on the basis that the determination area will include land south of the River Torrens, which it identifies as Ramindjeri country. It is necessary to relate some of the history of the Ramindjeri Association becoming a party to the proceeding, and what has occurred since then.
33 Mr Lance Walker as chair of the RHA lodged a notice of intention to become a party to the application on 18 December 2001. On 3 October 2003, RHA was formally joined as respondent party by order of the Court. On 19 May 2004, Mr Walker (and not the RHA) filed a notice of motion seeking to strike out the Kaurna native title claim, in the following terms. The application sought to strike out the claim area:
…east of a line Fullarton Road, Hampstead and Main North Road north to Gawler, West of a line Tapleys Hill Road - North to Pelican Point, South of Brownhill Creek/Goodwood or Wirraparringa as I believe the Kaurna have no establishable pankarra or land ownership links to the hills country to the east and south of the Adelaide Plains.
34 The application was subsequently withdrawn on 13 October 2004 on the basis that the RHA wished to put forward a positive case for a Ramindjeri claim to native title over the area identified, and to continue to oppose the Kaurna people's claim. It maintained that no orders should be made that the Kaurna people have native title over the area it identified as Ramindjeri land.
35 On 8 September 2005, Mansfield J made an order that the Registrar seek the pro bono assistance of a lawyer for Mr Walker. This assistance was limited to advising Mr Walker as to whether he, or the Ramindjeri, or the RHA should proceed to make a claim for native title, the relevant procedural steps to be taken and to assist in drafting the documents to be filed in relation to such an application. Mr Walker received pro bono legal assistance over several years. Mansfield J made a mediation referral to the National Native Title Tribunal on 5 September 2008 in relation to the:
…nature and extent of the issues arising between the applicants and the Ramindjeri People, including as expressed by the respondent party the Ramindjeri Heritage Association
36 The mediation was unsuccessful and was terminated in 2012.
37 In 2010 (that is, before the mediation process was terminated), Mr Walker lodged a native title application on behalf of the Ramindjeri, which overlapped with both the southern portion of the Kaurna claim area and with parts of an adjoining claim made by the Ngarrindjeri people. The Ngarrindjeri claim was recently determined by consent. Neither Mr Walker nor the RHA were named as respondents to this claim, and as I set out below Sally Walker (who was contended to be an apical ancestor for the Ramindjeri) was identified as one of the apical ancestors on the Ngarrindjeri claim. In 2014, on the application of the State (supported by the applicant and the Ngarrindjeri people) Mansfield J dismissed the whole of the 2010 Ramindjeri native title claim on the basis that it was not properly authorised: Walker v State of South Australia [2014] FCA 962. His Honour said at [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.
38 Since around 2010, when the native title application by Mr Walker on behalf of the Ramindjeri was filed, neither the RHA, nor any individual Ramindjeri people have played an active role in the Kaurna native title claim, including in relation to the trial. There was no appeal from Mansfield J's decision. The RHA did not file a notice indicating that it wished to take an active part in the trial, despite orders to this effect having been made by White J in December 2016. The RHA has not filed any evidence, lay or expert, in the proceeding, nor subsequently sought to become an active party to challenge the claims of the Kaurna people.
39 There are some further relevant matters. Mr Walker passed away in 2015. The written objection communicated to the Court came from Ms Vivienne Greenshields and Ms Christine Walker, on behalf of the RHA. The basis of the objection - that the country south of the Torrens River is Ramindjeri country - is the same basis as the claim made by Mr Walker in 2010 that was dismissed by Mansfield J for lack of proper authorisation. I note that lack of proper authorisation for a claim is not any mere technicality. Authorisation by an identifiable claim group (or, at least, a majority of an identifiable claim group) is the method the Native Title Act prescribes so that the Court and all affected parties can be satisfied that there is a group of indigenous people, who together claim to be the holders of native title rights and interests in particular land and/or waters, and are putting forward a claim which is capable of falling within the terms of s 223 of the Native Title Act. In the Ramindjeri application, Mansfield J was not satisfied that Mr Walker had any such authorisation from the Ramindjeri people, although he clearly purported to represent a group of his own extended family.
40 Taking into account both Mansfield J's decision in 2014, and the fact that neither the RHA, nor any Ramindjeri people have taken an active part in this proceeding, it may have been difficult for the RHA to maintain that some or all Ramindjeri people hold native title rights and interests over any part of the determination area, or have native title rights and interests which will be adversely affected by either a dismissal or a negative determination over parts of the determination area. Nevertheless, the objection had been made and could not be dismissed summarily, especially given the parties proposed a determination be made that no native title exists over a large part of the claim area.
41 The objection from the RHA prompted an interlocutory application by the applicant, seeking to remove the RHA as a party to the proceeding. The purpose of that course appeared to be so that the objection could not hold up the consent determination, because (the argument appeared to be) if the Ramindjeri (through the RHA, assuming for present purposes it is representative of the Ramindjeri) were not a party, then their objection to the determination could not impede the orders being made. It is necessary to make it clear that there has been no endorsement by the Court of that line of argument.
42 The applicant's removal application was filed (and served on some respondents) very late on Friday 16 March 2018. Material in support of the application was filed and served on Saturday 17 March 2018. None of these documents had been accepted by the Court because they were filed outside hours, but nevertheless, given the urgency of the situation, the Court notified the parties on Saturday 17 March 2018 that a hearing would be convened at 2.15 pm on Monday 19 March 2018, to deal with the Ramindjeri objection, and the applicant's interlocutory application.
43 In the early evening of Sunday 18 March 2018, the Court was informed that the Ramindjeri (through the RHA) sought leave to withdraw as a party. A notice to that effect, signed by Ms Vivienne Greenshields and Ms Christine Walker, was sent to the other parties and forwarded to the Court. This withdrawal should, I am satisfied, also be taken as a withdrawal of the objection of the RHA (and the Ramindjeri people it represents) to the consent determination.
44 The hearing on 19 March 2018 was accordingly vacated, and the interlocutory application did not need to be pressed by the applicant.
45 The objections did not, however, end there, despite the proposed consent determination being only two days' away.
46 On 19 March 2018, Mr Michael Hunter Coughlan filed an interlocutory application seeking to be joined as a respondent to the proceeding. In his supporting affidavit, Mr Coughlan states that he is a Peramangk person descended from an ancestor identified as "Buffalo", and a woman known by her tribal group "Korolde". Mr Coughlan claims that the country of the Peramangk people overlaps with parts of the eastern portion of the Kaurna determination area, including around Mylor, where some of the seventeen parcels of land subject to a positive determination are located. Both the applicant and the State opposed the joinder application. The remaining parties informed the Court they would abide its decision.
47 The application was heard in the afternoon of 20 March 2018. Mr Coughlan appeared in person at the hearing and was given the opportunity to set out the basis for his interests, how these interests may be affected by a determination in the proceeding and why it is in the interests of justice to join him as a party. Mr Coughlan explained that although he was aware of the Kaurna native title claim, he was unaware that it had moved from a contested proceeding to a determination by consent. He reaffirmed his desire to become a respondent party to protect his cultural authority, and also his assertion that country to the east of the Mount Lofty ridgeline is Peramangk country. If joined as a party, Mr Coughlan confirmed he would oppose the consent determination and take an active part in any trial that may subsequently occur, including agitating claims that portions of the claim area along the eastern boundary are Peramangk country.
48 As I have noted, in support of its opposition to Mr Coughlan's joinder application, the applicant read four affidavits. Collectively, these affidavits reveal that in May 2001, a meeting was held between the Kaurna and Peramangk to consider native title boundaries, and an agreement was reached which is reflected in the current Kaurna claim boundary. This evidence also revealed that Mr Coughlan has for many years been aware of the Kaurna intentions and aspirations in native title. The affidavits also outline the manner in which the various information and authorisation meetings were publicised.
49 The State also read an affidavit of Peter Tonkin, affirmed on 20 March 2018, which stated that this was the first time Mr Tonkin had heard of any Peramangk person claiming native title within the boundary of the Kaurna claim. This, I note, is after the Kaurna claim has been on foot for more than 17 years. Mr Tonkin's affidavit also annexed minutes of a meeting of the City of Mitcham Council held in May 2009 where Mr Coughlan himself is recorded as presenting a welcome or "Statement of Acknowledgement" of the traditional ownership of the country on which the meeting was held as Kaurna. Mr Coughlan is described in the minutes of meeting as a descendant of the Peramangk and Ngarrindjeri peoples. Mr Tonkin also deposes to attending a meeting on 19 March 2015 at which Mr Coughlan was also present. The meeting notes attached to Mr Tonkin's affidavit record Mr Coughlan as stating that he is Peramangk and the current Vice President of the Peramangk Heritage Association. Finally, Mr Tonkin's affidavit attaches an extract of Dr Lee Sackett's report filed on 21 November 2017 that concludes "[i]n my view, the woefully little that is said to be known regarding the Peramangk means that it would be a mistake to factor them into any equation."
50 Since the evidence from the applicant and the State was in substantive respects contrary to Mr Coughlan's affidavit evidence, and also sought to put a different complexion on his claims, the applicant - quite properly - sought leave to cross-examine Mr Coughlan so that these differences could be put to him and he could have an opportunity to respond to them. I granted that leave. The State did not cross examine Mr Coughlan, but generally supported the approach taken by the applicant. During his cross examination, Mr Coughlan acknowledged that he has been aware of his Peramangk identity since the early 1990s, and contended that he is culturally the most senior person among the Peramangk group. Mr Coughlan also acknowledged that "Buffalo and his wife" have been recognized as apical ancestors in the recent Ngarrindjeri consent determination: Sumner v State of South Australia (Ngarrindjeri Native Title Claim Part A) [2017] FCA 1514, although he stated his view is that this inclusion in the Ngarrindjeri determination is incorrect.
51 At the conclusion of the evidence, and after the submissions of the applicant and the State, I adjourned the hearing temporarily so that, at the Court's request, SANTS could provide Mr Coughlan with assistance in understanding the implications of his application, the basis upon which the applicant and the State objected to it, and to answer any queries he may have. This assistance was duly provided, and the Court expresses its gratitude to Ms Bianca Lena for her assistance to the Court and to Mr Coughlan in this respect. Mr Coughlan then made final submissions to the Court.
52 Late in the afternoon of 20 March 2018, immediately after the hearing, I dismissed Mr Coughlan's application to be joined as a respondent to the proceeding. I indicated I would provide reasons for that order in the determination reasons.
53 I accept that the joinder application Mr Coughlan made is sincere and is based on information he has discovered through his own inquiries and research. I accept that the timing of the application largely resulted from his recent discovery that this proceeding had moved from a contested trial to a consent determination, which included both a negative and a positive determination over parcels of country he considers - at a presently rather broad and undefined level - he has an affiliation with. However, the sincerity of his views and his application is not sufficient for joinder, especially not at the time the application was made. There are multiple interests that the Court must balance under s 84(5) of the Native Title Act. I accept that he was only made aware recently that the claim may be resolved by consent, however Mr Coughlan has been aware of the Kaurna native title claim for some time, indeed well over a decade. Until two days ago, neither Mr Coughlan nor any other Peramangk person or the Peramangk people had objected to the Kaurna claim by either seeking to be joined as a respondent, or by filing a native title claim on behalf of the Peramangk people over any area of the Kaurna claim area, and in particular over the land around the eastern boundary. In contrast, there is evidence that the Peramangk and the Kaurna had many years ago agreed to the eastern boundary of the Kaurna claim, as it was set out in the Kaurna native title application.
54 There is no evidence that Mr Coughlan consulted other Peramangk people prior to filing his application, or that he and other Peramangk people plan to, or are working together to, file a native title claim on their own behalf. There is no evidence in the material filed of a Peramangk society, as opposed to the contemporary claims of Mr Coughlan. The State has accepted "Buffalo and his wife" as apical ancestors in the Ngarrindjeri determination, and is satisfied that the determination in this matter will not defeat the native title claim of another group. I am not satisfied that Mr Coughlan has an interest that may be affected by a determination of native title. I am also not satisfied that it is in the interests of justice to join Mr Coughlan as a party, which would have the inevitable effect of the consent determination not proceeding, and the trial resuming. Mr Coughlan's joinder would have had the effect of disputing a process which clearly pursues the objectives of both the Native Title Act and ss 37M and 37N of the Federal Court Act, as I explain elsewhere in these reasons. The Court might exercise its discretion to permit such a disruption in compelling circumstances where the new and countervailing native title claims have a firm evidentiary foundation (especially where a negative determination was sought), but that is not this situation.
55 For these reasons, I dismissed Mr Coughlan's joinder application.
Section 87 and the Court's function
56 There are three preconditions to an exercise of power under s 87 of the Native Title Act. They are:
(a) the lapse of the specified notification period under s 66 (s 87(1));
(b) the parties have reached agreement on the terms of orders relating to the proceedings, and matters arising out of those terms (s 87(1)(a)); and
(c) the parties have reduced their agreement to writing, the agreement has been signed by or on behalf of the parties, and it has been filed with the Court (s 87(1)(b)).
57 In the present application, the notification period ended many years ago, there is agreement between the parties of the matters in s 87(1)(a) and that agreement has been reduced to writing and filed with the Court, in the form of the proposed orders and determination.
58 Where those preconditions exist, as they do in relation to the present application, the Court has jurisdiction under s 87(1A) of the Native Title Act to make orders in the form filed by the parties, or consistent with that form. Before it can make such an order, the Court must be satisfied of two matters:
(a) first, that the orders as filed or proposed are "within the power of the Court" to make: s 87(1)(c).
(b) second, that the orders filed or proposed are "appropriate": s 87(1A).
59 In order to be satisfied that the orders sought are within the power of the Court, consideration must be given to other restrictions or requirements in the Native Title Act. For example, the area covered by the orders must not overlap with any other application for determination of native title (s 67(1)); similarly, the area covered by the orders cannot have been the subject of a previously approved determination of native title (s 68). Further, the orders sought will only be within power if they set out the details of the matters required by s 225 (see s 94A) and if they concern rights and interests which the Australian common law is able to recognise (s 223(1)(c)). There are no such impediments to the making of the determination sought by the parties in this proceeding.