Commonwealth of Australia v Clifton

Federal Court of Australia (Full Court)|2007-12-06|Before: Dowsett JJ

INTRODUCTION 1 This appeal by leave from an interlocutory judgment pronounced by Finn J concerns what his Honour described as a controversial question of construction of the Native Title Act 1993 (Cth) ("the Act"): Kokatha People v State of South Australia [2007] FCA 1057. The question is whether the Federal Court may make a determination of native title in favour of a person who has not made a native title determination application under s 61 of the Act in relation to the area in question but who is a respondent to such an application brought on behalf of a claimant group which does not include him. 2 The learned primary judge answered the above question in the negative. For the reasons set out below we accept the correctness of his Honour's answer.

BACKGROUND 3 This background material has been drawn from the reasons for judgment of the primary judge. 4 On 8 September 2005 orders were made under s 67 of the Act that three native title determination applications - the Kokatha Native Title Claim, the Barngala Native Title Claim and the Arabunna Peoples Native Title Claim - be dealt with in the same proceeding to the extent that they covered the same area of land and waters ("the overlap proceeding"). 5 On 19 September 1995 the first Kuyani Native Title Claim was lodged. Mark McKenzie later became the named applicant for this claim. It was amended on no less than six occasions altering the composition of the claim group and the lands the subject of the claim. The claim area overlapped the claim area of the Kokatha Native Title Claim. 6 On 27 January 2005 Finn J ordered that the Kuyani Native Title Claim be struck out. His Honour concluded that there was no arguable basis upon which Mr McKenzie could be said to have satisfied the requirements of s 61(4) and s 62(1)(a)(iv) and (v) relating to his authorisation to bring the claim: McKenzie v South Australia (2005) 214 ALR 214. At an earlier date Mr McKenzie had, by virtue of s 84(3) of the Act, become a respondent party to the Kokatha Native Title Claim. 7 In Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 Mansfield J held that the striking out of the Kuyani Claim did not, of itself, result in Mr McKenzie ceasing to be a party to the Kokatha Claim. His Honour noted that Mr McKenzie might nonetheless be a person whose interests might be affected by the Kokatha claim and thus a party pursuant to s 84(3) of the Act. 8 On 16 February 2006 Mr McKenzie and others lodged the second Kuyani Native Title Claim (the Kuyani-Wilyaru People Native Title Claim). It also overlapped in part the area of the overlap proceeding and orders were made that it be dealt with in the overlap proceeding to the extent of the overlap. The new claim suffered from the same difficulties as the first Kuyani Claim and a notice of discontinuance was filed in respect of it. Mr McKenzie nonetheless remains a respondent in the overlap proceeding (s 84(3)(a)(ii) and (iii)). 9 Mr McKenzie has not filed a fresh application but he has filed a draft statement of facts and contentions in the overlap proceeding. He disputes the claim of the Kokatha that they inhabited the claim area in the overlap proceeding prior to sovereignty. He asserts that the Kuyani People had at that time native title rights and interests in a stipulated part of that area. His statement concludes: 3.4 In the event that a determination is made in these proceedings that only the Applicants, or any of them, hold the common or group rights as native title holders, and having regard particularly to s 61A of the Native Title Act 1993, Mr McKenzie's lawful interest as native title holder (and those of other Kuyani in his position) will not be able to [be] adequately recognized, and such a determination is opposed. 3.5 Again having regard particularly to s 61A of the Native Title Act 1993, and for the same reasons as advanced in the previous paragraph, Mr McKenzie opposes a determination that native title does not exist over the claim area. 3.6 Mr McKenzie seeks a determination under section 225 of the Native Title Act 1993 that the common or group rights in respect of the hachured area on the attached map are held by the Applicants on a shared basis with Mr McKenzie and other Kuyani with ancestral connection to that area, in accordance with Murranginhi traditional law and custom. 10 As can be seen from [3.6] of his statement, Mr McKenzie seeks a determination of native title rights and interests in his and other Kuyani's favour notwithstanding that he and those Kuyani have no s 13(1) native title determination application on foot. 11 The State moved the Court for an order that Mr McKenzie be removed as a party to the overlap proceeding or alternatively for a declaration that on the proper construction of the Act a finding of native title cannot be made in favour of Mr McKenzie as a respondent. 12 On 16 July 2007 the primary judge made the following declaratory order: As these proceedings are presently constituted, a determination of native title cannot be made in favour of Mark McKenzie and other Kuyani under the provisions of the Native Title Act 1993 (Cth). 13 On 3 August 2007 Mansfield J granted the Commonwealth leave to appeal from the above interlocutory judgment.

STATUTORY REGIME 14 One of the main objects of the Act is "to provide for the recognition and protection of native title" (s 3(a)). Section 10 of the Act provides that "[n]ative title is recognised, and protected, in accordance with this Act". 15 Section 13(1)(a) authorises the making of an application to the Federal Court under Part 3 "for a determination of native title in relation to an area for which there is no approved determination of native title". Section 13(2) authorises the Court to make a determination of native title in relation to an area for which there is no approved determination of native title concurrently with making a determination of compensation in accordance with Division 5 of the Act. 16 Section 13(3) provides that, subject to variation or revocation, each of the following is an "approved determination of native title": (a) a determination of native title made on an application under paragraph (1)(a) or in accordance with subsection (2); (b) an order, judgment or other decision of a recognised State/Territory body that involves a determination of native title in relation to an area within the jurisdictional limits of the State or Territory. 17 Part 3 of the Act sets out the rules for making applications to the Federal Court, including applications for native title determinations (s 60A(1)(a)). Section 61 of the Act is in the form of a table that identifies the applications that may be made under Division 1 of Part 3 and the persons who may make each of those applications. It identifies as the persons who may make an application for a determination of native title as mentioned in s 13(1) as: (1) 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; or (2) A person who holds a non‑native title interest in relation to the whole of the area in relation to which the determination is sought; or (3) The Commonwealth Minister; or (4) The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned. 18 Section 61(4) is concerned with the identification of the relevant native title claim group. It provides: (4) A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must: (a) name the persons; or (b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. 19 We interpolate that, in our view, the preferable reading of the Act is that s 13(1), rather than s 61(1), is the primary source of the right to make an application for a determination of native title; s 61(1), as s 60A recognises, is one of a number of provisions containing rules that govern such an application. 20 Section 62 of the Act requires a claimant application (ie a native title determination application that a native title claim group has authorised to be made (see s 253)) to be accompanied by an affidavit sworn by the applicant which, in effect, verifies the claim including that the applicant is authorised by all persons in the native title claim group to make the application and to deal with the matter arising in relation to it (see s 61(2), s 62(1)(a)(iv) and s 253). The affidavit must also provide details of the area covered by the application (s 62(2)(a)), details and results of all searches carried out on behalf of the claim group to determine the existence of any non-native title rights and interests (s 62(2)(c)) and a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist (s 62(2)(e)). Section 62(3) requires a comparable affidavit to accompany a compensation application. 21 Section 67 recognises that two or more applications may be made to the Court for a determination of native title in respect of the same area. The section places the Court under an obligation to make orders to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding. Section 67 applies equally to applications that merely overlap in part and to applications that cover precisely the same area. 22 The importance attributed by the legislature to the requirement that an applicant in a native title determination application, or in an application for compensation, be authorised by all members of the native title claim group is illustrated by s 84C and s 84D of the Act. Section 84C provides: Strike‑out application (1) If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application. Court must consider strike‑out application before other proceedings (2) The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1). Registrar of Court to advise Native Title Registrar of application etc. (3) The Registrar of the Court must advise the Native Title Registrar of the making of any application under subsection (1) and of the outcome of the application. Other strike‑out applications unaffected (4) This section does not prevent the making of any other application to strike out the main application. 23 Section 84D empowers the Court on its own motion, on the application of a party to the proceeding, or on the application of the native title claim group or compensation claim group, to make an order requiring an applicant to produce evidence of his or her authorisation. 24 If an application under s 61 of the Act is filed, the Registrar of the Federal Court must, as soon as practicable, give the Native Title Registrar a copy of the application and any affidavit that accompanies the application (s 63). The Native Title Registrar is required to comply with the requirements of s 66 of the Act which concern the giving of notice of the application. Notice must be given to any State or Territory within whose jurisdictional limits the claim area falls; to any representative bodies for the area covered by the application; to any registered native title claimant, registered native title body corporate or any representative Aboriginal/Torres Strait Islander body, in relation to any of the area; to the Commonwealth Minister; to any local government body for the area and to any other person whose interests may be affected by a determination in relation to the application. We interpolate that no equivalent obligation is imposed on the Native Title Registrar or any other person to give notice of any claim advanced, whether by cross-claim or otherwise, by a respondent or respondents to a s 61 application. Section 64 authorises the amendment of applications that reduce the area covered by the application (s 64(1A) but proscribes any amendment to include any area of land or waters not covered by the original application except by the combination of applications (s 64(1) and (2)). 25 Section 81 of the Act provides that the Federal Court has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title and further provides that that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court. 26 Section 84 identifies the parties to an application to which s 61 applies. Amongst those parties are persons other than the applicant if: (a) any of the following applies: (i) the person is covered by any of subparagraphs 66(3)(a)(i) to (vi); (ii) the person claims to hold native title in relation to land or waters in the area covered by the application; (iii) the person's interest, in relation to land or waters, may be affected by a determination in the proceedings; and (b) the person notifies the Federal Court, in writing, that the person wants to be a party to the proceeding: (i) within the period specified in the notice under section 66; or (ii) if notice of an amended application is given under paragraph 66A(1A)(e) - within the period specified in the notice under that paragraph. (s 84(3)) 27 Section 94A requires any order in which the Federal Court makes a determination of native title to set out details of the matters mentioned in s 225 of the Act (see [31] below). 28 Part 7 of the Act is concerned with the Register of Native Title Claims. Section 190A requires the Native Title Registrar to consider the claim made in an application given to the Registrar under s 63 or s 64(4). The Registrar must accept the claim for registration if: (a) either: (i) the claim was made in an application given to the Registrar under section 63; or (ii) the claim was made in an amended application given to the Registrar under subsection 64(4) and subsection (6A) of this section does not apply; and (b) the claim satisfies all of the conditions in: (i) section 190B (which deals mainly with the merits of the claim); and (ii) section 190C (which deals with procedural and other matters). 29 Section 190B requires that the Registrar must be satisfied that the persons in the native title claim group are named on the application or otherwise described sufficiently clearly so that it can be ascertained whether any particular person is in that group. Section 190C requires, amongst other things, that the Registrar must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by s 61 and s 62. 30 Section 213 is of central importance to this appeal. It forms part of Part 13 of the Act, which is headed "Miscellaneous". The section provides: Native title to be determined in accordance with this Act (1) If, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in this Act. Matters arising under this Act (2) Subject to this Act, the Federal Court has jurisdiction in relation to matters arising under this Act. 31 Part 15 of the Act is headed "Definitions". Section 225 appears in Division 2 of Part 15 which is concerned with certain key concepts. It gives content to the expression "determination of native title". The section provides: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. 32 Section 251B, which forms part of Division 4 of Part 15, is concerned with the process whereby all of the persons in a native title claim group authorise a person or persons to make a native title determination. If there is a process of decision-making under the traditional laws and customs of the group it must be complied with (s 251B(a)). Otherwise the process must be agreed to and adopted by the persons in the group (s 251B(b)). 33 Of the above provisions, each of ss 61, 62, 63, 66, 67, 81, 84, 94A, 190A, 190C, 225 and 251B was inserted into the Act, or inserted in its present form, by Schedule 2 of the Native Title Amendment Act 1998 (Cth).

SUBMISSIONS OF THE APPELLANT 34 The Commonwealth outlined its basic argument in the following way: 9. (a) By s 81 of the NTA, '[t]he Federal Court has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title…'. (b) The basic rule is 'It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words'. (c) One avenue by which the Court's jurisdiction might be invoked (and by which it has been invoked in the present case) is by the making of a claimant application of the kind provided for by section 61 of the NTA. Such an application may, as is contemplated in ss 13(1)(a) and 13(3)(a), lead to a 'determination of native title'. An exception to this is where proceedings are dismissed and no determination of native title is made. (d) The content of a 'determination of native title' is controlled by s 225 of the NTA. Section 225, on broad analysis, directs the Court to consider the content of all rights and interests in the land in question (in this case the subject lands) - whether those interests are native title rights and interests or other rights and interests - and the relationship between the various rights that are found to exist. (e) The basic rule against reading the jurisdiction of the Court as limited, combined with the objects, text and structure of the NTA, does not favour the fettering of the Court's jurisdiction in the manner reflected in the decision below. 10. The Commonwealth does not submit that it is desirable that assertions of native title be made by respondents, or that the disadvantages that a respondent asserting native title will face should be removed or ameliorated. The Commonwealth's position is that the possibility that the Court might be able to make a determination of native title which recognises the native rights and interests of a group that does not conform with a group identified in an application should not be excluded peremptorily or on procedural grounds. The Commonwealth submits that, if on the evidence in a particular case, the Court is satisfied that native title rights and interest are held by a person or group that is not an applicant, then a determination to that effect is not proscribed by the NTA.

General 35 It can be seen at once that there is a potential tension between the restrictions inherent in s 61(1) concerning the person or persons who may make an application under s 13(1) for a determination of native title and the requirements of s 94A that any order making a determination of native title set out details of the matters mentioned in s 225. This potential tension is most apparent where, as in the case of Mr McKenzie, a person or a group of persons who has no s 13(1) application on foot asserts native title rights in relation to land and waters the subject of a s 13(1) application made on behalf of others. 36 It is plain that a person who claims to hold native title in relation to land and waters the subject of a s 13(1) application is a party to the proceeding initiated by the filing of the application under s 13(1) (s 84(3)(a)(ii)). It is also plain that a determination of native title is required to identify the persons, or each group of persons, holding the common or group rights comprising the native title (s 225(a)) and set out details of the nature and extent of the native title rights and interests in relation to the determination area (s 225(b)). Does it therefore follow, as the Commonwealth and Mr McKenzie contend, that provided that a valid s 13(1) application (ie an application made by a person or persons properly authorised by the native title claim group) has been made in relation to an area, the Court may make a determination that another group of persons, who have not authorised the making of an application for a determination of native title in relation to that area, hold common or group rights comprising native title in relation to that area? 37 It is important to note that the situation posited by the above question is quite different from the situation faced by the Court when it is required to determine a dispute (a) as to the true membership of a native title claim group; (b) concerning the boundaries of the area over which the claim group holds native titles; or (c) as to the nature and extent of the native title, rights and interests held by the claim group. The resolution of disputes of this kind is an inherent aspect of the determination of an application made under s 13(1). 38 The Commonwealth and Mr McKenzie contend that s 225(a) does not limit the range of persons or groups of persons who are eligible to be identified under that paragraph to the native title claim group who authorised the s 13(1) application. We accept the accuracy of this submission. However, the submission has limited significance for present purposes. Section 225 is concerned with the content of a determination of native title; it is not directly concerned with the jurisdiction or power of the Court to make an order in favour of a group which has not authorised the making of a claim on its behalf for a determination of native title. Nor is it concerned with who has standing to make an application for a determination of native title. We note, however, that in Western Australia v Ward (2000) 99 FCR 316 at [192]-[193] Beaumont and von Doussa JJ placed some reliance on s 225 in dismissing a challenge to the Court's jurisdiction. At [193] their Honours observed: Section 213(1) of the NTA provides that if, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in the NTA. In our opinion that requirement was fulfilled in respect of the determination in favour of the Balangarra Peoples. The Balangarra Peoples were parties claiming an interest in the area the subject of the claim. They became parties as respondents pursuant to s 68 of the old Act. Their participation in proceedings was therefore in accordance with the procedures of the NTA and, as we have noted, the provisions of s 225 and the in rem nature of the proceedings required the Court to make a determination in respect of the rights and interests claimed by them. Upon their establishing the rights and interests claimed, they were entitled to a favourable determination declaring those rights and interests. … 39 We give further consideration below to the majority judgment in Western Australia v Ward. It is sufficient here to note their Honours' reference to the Balangarra Peoples being parties who claimed an interest in the area the subject of the claim. By contrast, in the present case the Kuyani People are not parties to the native title determination application.

The Jurisdiction of the Federal Court 40 Section 213 of the Act is critical to a determination of the extent of the jurisdiction of the Federal Court under the Act. In providing that the jurisdiction of the Court in relation to matters arising under the Act is subject to the Act, s 213(2) discloses an intention to limit the general jurisdiction conferred on the Federal Court by s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and the jurisdiction otherwise conferred on the Court by s 81 of the Act. Section 39B(1A)(c) vests in the Federal Court original jurisdiction in any matter arising under a law made by the Parliament other than a criminal matter. The limit placed by s 213(1) on the Court's jurisdiction in any matter arising under the Native Title Act is that any determination of native title must be made in accordance with the procedures in the Act. 41 Because of the reliance placed on s 22 of the Federal Court of Australia Act 1976 (Cth), we interpolate that s 22 is not a provision which expands the Court's jurisdiction. Section 22 obliges the Court, in every matter before it, to grant all remedies to which any of the parties appears to be entitled in respect of a claim properly brought forward by him or her in the matter so as to avoid multiplicity of proceedings. All jurisdiction of the Federal Court is jurisdiction with respect to matters (s 77(1) of the Constitution). Section 22 is concerned with the way in which the Court is to exercise that jurisdiction. 42 When understood in the above context, it can be seen that s 61(1) of the Act is not concerned to vest jurisdiction in the Court or to limit the jurisdiction otherwise conferred on the Court. Section 61(1) has two purposes. The first is to identify the applications that may be made under Division 1 of Part 3 of the Act. The second is to identify the person or persons who may invoke the jurisdiction of the Court by making one of the three kinds of application with which the section is concerned; that is, to identify those who have standing to make those applications. 43 The requirement of s 213(1) that a determination of native title must be made in accordance with the procedures in the Act makes it necessary to identify the procedures in the Act that govern the making of a determination of native title. It may also make it necessary to determine which of those procedures the legislature intended to be critical to a valid exercise of the jurisdiction of the Federal Court (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).

Procedures in the Act 44 As mentioned above, the rules that govern the making of a native title determination are found in Division 1 of Part 3 of the Act. That Division prescribes who may make such an application (s 61), proscribes the making of an application in relation to an area for which there is an approved determination of native title (s 61A) and specifies the form of the application and the information that must be included in the application (s 61(3), (4) and (5)) or in an accompanying affidavit (s 62). It requires any application under s 61, and any accompanying affidavit, to be given to the Native Title Registrar (s 63) who must give notice of the application to persons likely to be interested in the application (s 66). The Division proscribes the amendment of an application where the amendment would increase the area claimed beyond that of which the Native Title Registrar will have given notice (s 64). 45 Part 4 of the Act governs the way in which the Federal Court is to exercise is jurisdiction to hear and determine applications concerning native title. Importantly, unless the Court orders to the contrary after taking into account the matters identified in s 86B(4), every application under s 61 must be referred by the Court to the NNTT for mediation. 46 As mentioned above, s 67 of the Act recognises that two or more applications may be made to the Court for a determination of native title in respect of the same area. It provides a procedure for dealing with applications concerning the same area. It requires that they be dealt with in the one proceeding. 47 The Act provides no procedures other than those described above whereby a person or group of persons may obtain a determination of whether or not native title exists in relation to a particular area and, if it does exist, a determination of who the persons, or each group of persons, holding the common or group rights comprising the native title are (s 225(a)). This fact is recognised by the definition of "approved determination of native title" in s 13(3) which, so far as determinations made under the Act are concerned, limits approved determinations to determinations made on an application under s 13(1) or on compensation claims under Division 5 (see [16] above). 48 Contrary to the submissions of Mr McKenzie, O 5 r 1 of the Federal Court Rules which is concerned with cross-claims, does not provide a procedure whereby a non-applicant party to a native title determination application who is not authorised as required by s 61(1) may seek a determination of native title in that party's favour. Order 5 rule 1 only authorises a respondent to cross-claim against an applicant for relief to which the respondent would be entitled against the applicant if the applicant were a respondent in a separate proceeding commenced in the Court by the respondent for that purpose. It does not authorise a respondent to cross-claim for relief which he or she could not claim as an applicant in a separate proceeding. Section 61(1) requires a native title determination application to be authorised by the relevant native title claim group. Order 5 rule 1 therefore requires a cross-claimant to be similarly authorised.

Legislative Intent 49 The Commonwealth and Mr McKenzie submitted that the second reading speech and Explanatory Memorandum for the Native Title Amendment Bill 1997 (No 2) (Cth) which, when enacted, became the Native Title Amendment Act, demonstrate that the rationale for the amendments was not to limit the people in favour of whom a native title determination could be made but rather to limit the number of people and groups with whom non-indigenous parties were required to negotiate. We accept that a rationale for the amendments was that identified by them but we do not accept that it was the only rationale. 50 The Attorney-General stated in the second reading speech that one of the outcomes the Bill was designed to achieve was "to put in place a registration test for claims which ensures that those negotiating with developers have a credible claim". The Attorney-General also stressed that "an effective registration test as the gateway to the statutory benefits which the act provides is essential" and that it was "essential to the continuing acceptance of the right to negotiate process that only those with a credible native title claim should participate". However nothing in the second reading speech or the Explanatory Memorandum suggested that the proposed amendments to Division 1 of Part 3 of the Act were only intended to provide a foundation for the new registration test and were not intended to place any real restraint on the ability of individuals and groups of individuals to claim determinations of native title. 51 The new registration test for which the bill provided is now to be found in Part 7 of the Act which, as mentioned above, is concerned with the Register of Native Title Claims. The subject matter of the registration test is the apparent merits of the claim (s 190B) and compliance with the procedural and other matters including compliance with s 61 and s 62 (s 190C). Had the new registration test been concerned solely with the right to negotiate process, as the Commonwealth and Mr McKenzie submitted, it is unlikely that the legislature would have made the test dependent on provisions introduced by the same amending legislation into Division 1 of Part 3 of the Act, the division concerned with applications to the Federal Court. 52 In our view, it is unlikely almost to the point of being fanciful that the legislature intended that standing to institute a proceeding claiming a determination of native title should be strictly limited to persons authorised by the relevant native title claim group but that standing effectively to counter-claim for identical relief should be unlimited by any requirement for authorisation. This unlikelihood is the more apparent when one considers the numerous obligations placed on the Native Title Registrar to give notice of a native title determination application. Assuming the submissions of the Commonwealth and Mr McKenzie to be correct, other parties to the proceeding could advance comparable claims without any requirement arising for these statutory requirements and obligations to be met. 53 We also think it unlikely that the legislature intended that while all applications under s 61 should, in other than the limited circumstances specified in s 86B(3), be referred to the Tribunal for mediation, applications of the same character could be advanced by way of counter‑claim and the mediation process thereby possibly avoided. 54 We therefore reject the submission of the Commonwealth that s 61 is merely intended to "discipline applicants as to the content and form of primary applications" and that the incentive to comply with s 61 is the right to negotiate. 55 Mr McKenzie additionally placed reliance on the fact that s 223 of the Act defines native title as "communal, group or individual rights and interests of Aboriginal peoples" and that s 224 defines a native title holder in a way which recognises that an individual may hold native title. 56 This is not an appropriate occasion for consideration of the nature of an individual native title right. Mr McKenzie has not asserted that he alone holds any relevant native title rights. His claim is to hold native title rights and interests in a portion of the relevant claim area "as a member of the Kuyani people with ancestral connection on that area". He also claims that his native title rights and interests are shared with the first and second applicants. We observe, however, that the sole survivor of a class or group of persons who once held the common or group rights comprising the native title in an area would need no additional authority to make a claim under s 13(1). By contrast, an individual who claimed that according to the traditional laws and customs of his or her society, he or she alone had the right to enjoy some element of the common or group rights comprising the native title, would need to be authorised as required by s 61 to make a claim under s 13(1).

CONCLUSION 57 Section 213(1) of the Act discloses a legislative intent that a determination of native title should only be made by the Court in accordance with the procedures set out in the Act. In our view, since the coming into force of the Native Title Amendment Act, those procedures require, as a minimum, that before any determination may be made that native title is held by a particular group, an application as mentioned in s 13(1) must be made under Part 3 of the Act by a person or persons authorised by that group in the manner required by s 61(1). It is unnecessary on this appeal to determine what, if any, other requirements of Division 1 of Part 3 of the Act may also be critical to the making of such a determination. 58 We therefore conclude that where more than one native title claim group seeks a determination that it holds common or group rights and interests constituting the whole or part of the native title to an area, each group must authorise a person or persons to make an application as mentioned in s 13(1) under Part 3 of the Act. Where more than one application is made, to the extent that the applications cover the same area, they will be dealt with in the one proceeding (s 67). Consequently a determination of native title in respect of any one or more of the claim groups will be able to be made in accordance with the procedures of the Act (s 213(1)). 59 Alternatively, if following the giving of notice by the Native Title Registrar of the making of an application or applications in respect of the area, only one application is filed in respect of that area, the Court would be entitled to be satisfied that no other claim group or groups asserts a claim to hold native title to the area. 60 We are conscious that our views on this matter may, at first blush, appear not to accord with the views expressed by Beaumont J and von Doussa JJ in Western Australia v Ward at [191]-[194]. However, their Honours were there concerned to construe the Act as a force before the enactment of the Native Title Amendment Act. We have drawn attention above to the significant nature of the amendments effected by that Act. In particular we consider it significant that s 61 as originally enacted authorised a s 13(1) application to be brought by "[a] person or persons claiming to hold the native title either alone or with others". That is, the Act then contained no provisions that required an applicant under s 13(1) to be authorised by the relevant native title claim group. There was therefore at that time no impediment in the way of a non-claimant party to a native title determination application effectively cross-claiming for a determination in his or her favour. Additionally, as noted in [39] above, the Balangarra Peoples were parties to the native title determination application the subject of the appeal in Western Australia v Ward. 61 Moreover, as the primary judge observed, other judges have more recently adopted a view consistent with that which we consider to be the preferable reading of the Act. Importantly in Moses v Western Australia (2007) 160 FCR 148 at [18] a Full Court observed: The Kariyana people were joined as respondents 19D to the proceeding and were represented by solicitors, but apparently did not seek to be joined as applicants and did not seek to participate after the commencement of hearings before the primary judge. His Honour considered that it was nevertheless appropriate to make a determination in relation to the application of the Kariyarra people insofar as it overlapped the Ngarluma/Yindjibarndi claim, citing State of Western Australia v Ward (2000) 99 FCR 316 at [192]-[193] (Ward (FC)): July 2003 reasons at [55]. In our view, it would not have been open to the learned primary judge to make a determination of native title over those overlapping areas in favour of the respondent Kariyarra people on the state of the evidence in this matter. A determination of native title must be made in accordance with the provisions of the NTA, including its requirements regarding proof of the composition of the claim group and proper authorisation of the named applicants. In circumstances where the Kariyarra people participated as respondents only and made no attempt to satisfy the learned primary judge that all of the requirements of the NTA had been met in respect of their overlap claim, it would not have been appropriate to nevertheless make a determination of native title in their favour: see also Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 at [22]; Munn v State of Queensland [2002] FCA 486. Of course the obverse position, namely a decision that the Kariyarra people did not have native title rights and interest in those overlapping areas, was able to be made, because competing evidence that the Kariyarra people enjoyed native title rights and interests in these overlapping parts of the claim area was adduced. Such a conclusion did not have to address the issues arising under s 251B of the NTA.

62 For the above reasons the appeal will be dismissed. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Sundberg and Dowsett.

Counsel for the Appellant: Mr J Waters

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Sixteenth Respondent: Mr J Keen

Solicitor for the Sixteenth Respondent: RDM Lawyers

Counsel for the Seventeenth Respondent: Mr C J Kourakis, QC, Solicitor-General for the State of South Australia with Mr S T McCaul

Solicitor for the Seventeenth Respondent: Crown Solicitor for the State of South Australia

Date of Hearing: 5 November 2007

Date of Judgment: 6 December 2007

Native Title Amendment Act 1998(Cth)

Native Title Act 1993(Cth)ss 3, 10, 13, 60, 61, 62, 63,64, 66, 67, 81, 84, 94, 190, 213, 225

Judiciary Act 1903(Cth)s 39B(1A)(c)

Commonwealth of Australia v Clifton [2007] FCAFC 190 NATIVE TITLE - respondent to an application for a native title determination seeking a determination of native title - reliance placed on s 225 of the Native Title Act 1993 (Cth) - respondent not authorised by native title claim group as required by s61 of the Act - significance of statutory requirement that a determination of native title must be made in accordance with the procedures of the Act - consideration of jurisdictional provisions of Native Title Act 1993 (Cth) - Held: the Federal Court may only make a determination of native title in favour of a person who has made an application under s13 of the Act. Federal Court of Australia Act 1976 (Cth) s 22 Judiciary Act 1903 (Cth) s 39B(1A)(c) Native Title Act 1993 (Cth) ss 3, 10, 13, 60, 61, 62, 63,64, 66, 67, 81, 84, 94, 190, 213, 225 251, 253 Native Title Amendment Act 1998 (Cth) Sch 2 Native Title Amendment Bill 1997 (No 2) (Cth) Federal Court Rules O 5 r 1 Kokatha Native Title Claim v South Australia(2005) 143 FCR 544 cited Kokatha People v State of South Australia [2007] FCA 1057 affirmed McKenzie v South Australia (2005) 214 ALR 214cited Moses v Western Australia (2007) 160 FCR 148approved Western Australia v Ward (2000) 99 FCR 316 discussed COMMONWEALTH OF AUSTRALIA v DANIEL ERNEST CLIFTON, ROGER JAMES THOMAS, HENRY CROFT, ELLIOTT McNAMARA, BARRY CROFT, LORRAINE DARE, PHOEBE WANGANEEN, HOWARD RICHARDS, JODY JOSEPH MILLER, MARLENE WEETRA-HEIGHT, RAYMOND WEETRA, LAVINIA HERRON, REGINALD DODD, LAURIE STUART, MILLIE WARREN, MARK MCKENZIE, STATE OF SOUTH AUSTRALIA, NINGIL RICHARD CHARLES REID, ABORIGINAL LEGAL RIGHTS MOVEMENT INC, ALEXANDRINA PTY LTD, ANDAMOOKA PROGRESS & OPAL MINERS ASSOCIATION INC, BUCKLEBOO NOMINEES PTY LTD, PATRICIA BUCKNER, ORMAN BUCKNER, COOMBEDOWN RESOURCES NL, TANIA LEE CURLIJA, T DUURSMA, J DUURSMA, ESTA UTILITIES, ANTHONY F FLINT, ROBERT WILLIAM GREENFIELD, DOUGLAS MAXWELL GREENFIELD, KEITH HUTCHINSON GREENFIELD, GUNSON RESOURCES LIMITED, CRAIG DAVID HARRIS, HAVILAH RESOURCES NL, HANS HOLLERRIEDER, PAUL STEPHEN MANNING, COLLEEN MARY MANNING, MINOTAUR OPERATIONS PTY LTD, MINOTAUR RESOURCES LTD, MOULD NOMINEES PTY LTD, MUNICIPAL COUNCIL OF ROXBY DOWNS, NONNING PASTORAL COMPANY PTY LTD, PARTACOONA PAST CO PTY LIMITED ACN 061 587 764, RMG SERVICES PTY LTD, CYNTHIA SAVAGE, ROBERT SAVAGE, SOUTH AUSTRALIAN APIARISTS ASSOCIATION INC, STRAITS EXPLORATION (AUSTRALIA) P/L, TASMAN RESOURCES NL, TECK COMINCO AUSTRALIA PTY LTD, TELSTRA CORPORATION LIMITED, UNALLA PASTORAL CO PTY LTD, UNO PTY LTD, URANIUM ONE AUSTRALIA PTY LTD, BHP BILLITON OLYMPIC DAM CORPORATION PTY LTD, BHP BILLITON NICKEL WEST PTY LTD AND YADLAMALKA PROPRIETORS SAD 118 OF 2007

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