Davis-Hurst on behalf of the Kattang People v Minister for Lands

AND: MINISTER FOR LANDS, NSW NATIVE TITLE SERVICES LIMITED, SALTWATER RESERVE ADVISORY COMMITTEE AND KEITH KEMP

NEW SOUTH WALES DISTRICT REGISTRY NSD 6014 of 1998

BETWEEN: PATRICIA DAVIS-HURST ON BEHALF OF THE KATTANG PEOPLE - TRADITIONAL OWNERS OF SALTWATER #2

AND: MINISTER FOR LANDS, NSW NATIVE TITLE SERVICES LTD AND KEITH KEMP

REASONS FOR JUDGMENT 1 There are two Notices of Motion presently before the Court. One is a Notice of Motion filed in proceedings NSD 6013 of 1998 and the other is a Notice of Motion filed in proceedings NSD 6014 of 1998. The applicant brings the proceedings, as I understand it, on behalf of the Kattang people as traditional owners of the land in dispute. The reason why there are two proceedings is because one relates to one parcel of land, the subject of native title application 00030 and the other, to another parcel the subject of native title application 00031. The first such application relates to the Saltwater Reserve and the second relates to the Khappinghat Creek land. 2 Subject to one exception, the parties to the proceedings are the same. In matter number 6013 of 1998 the Saltwater Reserve Advisory Committee is a party, whereas in proceedings 6014 of 1998, that Committee is not a party. 3 On 17 December 2008 a Memorandum of Understanding was entered into between the Director-General of the Department of Environment and Climate Change (NSW) of the one part and the Saltwater Tribal Council (Aboriginal Corporation) of the other part. The Memorandum of Understanding dealt with both parcels of land. In the Dictionary to the Memorandum of Understanding, 'Saltwater People' was defined to mean those persons who: '(i) are the descendants of Mary Ann Perry (b. 1812); or (ii) are the descendants of Patrick 'Paddy' Marr (b. 1842); or (iii) are incorporated into the local land owning system according to the local system of traditional law and custom (examples include adoption and filiation, marriage or ceremonial incorporation); and (iv) have a cultural association with the claim area that is derived from the traditions, customs, knowledge, beliefs and history of the original Aboriginal occupiers of the claim area; and (v) identify themselves as Birpai and/or Worimi in their tribal organisation origins; and (vi) are recognised by other members of the claimant group as Worimi and/or Birpai.' 4 The fifth respondent in each proceeding is Keith Kemp, who is the applicant in each of the Notices of Motion filed in Court today which are presently under consideration. Mr Kemp was the applicant in proceedings NSD 35 of 2006, instituted against the Native Title Registrar and Others, in this Court in which relief was claimed under the Administrative Decisions (Judicial Review) Act 1977 (Cth). In her reasons for judgment in that matter (Kemp v Native Title Registrar (2006) 153 FCR 38) Branson J noted that on 4 December 2003 she had ordered that Mr Kemp be joined as a party to each of the proceedings the subject of the present Notices of Motion, i.e. NSD 6013 of 1998 and NSD 6014 of 1998 (see Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315). It may be that her Honour's reference to 4 December 2003 was intended as a reference to 4 June 2003 (see her Honour's reasons of 4 June 2003 [2003] FCA 541). 5 The proceedings, which were originally in the docket of Branson J, were transferred to the docket of Moore J upon her Honour's retirement from the Bench. Moore J is presently out of the jurisdiction and it falls to me to consider the Notices of Motion in the two matters which are now in his Honour's docket. The substantive relief sought relates to orders made by his Honour in each matter on 2 June 2009. 6 His Honour had earlier made orders on 3 February 2009 in each matter granting leave to the applicant to discontinue the proceedings. His Honour's original order was expressed to take effect 21 days from 3 February 2009. 7 As it transpires, the fifth respondent, Mr Kemp, sought to have those orders varied and on 2 June 2009 Moore J made orders in each matter as a result of the filing of the Notices of Motion by the fifth respondent, in the following terms: '1. Leave to discontinue is granted, but such order is not to take effect until 28 days after the date of this order.' 8 Those orders were made on 2 June 2009. Accordingly, his Honour's grant of leave to discontinue the proceedings will take effect at the end of the day today, 30 June 2009, unless a variation of the orders is made pursuant to the fifth respondent's Notices of Motion. The primary relief sought in each of the Notices of Motion is to be found in paragraph 6, which reads: '6. That the Order of this Court on 2 June 2009 that the Applicant be given leave to discontinue the proceedings be varied so as to make the Order effective on a date to be fixed;' 9 It is an unusual circumstance where a respondent wants to keep an application before the Court alive. That is what Mr Kemp effectively wants to do. As I understand it, he claims to be a member of the Pirripaayi people. It is common ground that the Pirripaayi people are also known as the Birpai people, referred to in the Memorandum of Understanding. In his affidavit sworn 29 June 2009 Mr Kemp deposed as follows: '7. The effect of the discontinuance of the proceedings will be that for all intents and purposes those people described in the MOU as the Saltwater people will be regarded as the traditional owners of the claim area, to the exclusion Pirripaayi people generally and me in particular. … 8. … in the event that the present application is discontinued it would be necessary for me to file a fresh native title application, wait for the registration test to be applied, and then wait further for the notification period to expire, before the matter could proceed to determination.' 10 It may be observed that paragraph 5 of the Memorandum of Understanding provided as follows: '5.1 This MOU is not intended in any way to affect or impact upon any native title rights and interests. 5.2 The Parties acknowledge that this MOU does not constitute a recognition of native title rights and interests nor does it constitute an authorisation of any act under the Native Title Act 1993 (Cth) or Native Title Act 1994 (NSW). 5.3 The Saltwater Tribunal Council will withdraw the Native Title Claims within a reasonably practicable time upon the commencement of this MOU.' 11 Ms Nikibin, solicitor, who has appeared before the Court today representing the applicant in each matter, has informed the Court that the definition of 'Saltwater People' in the Memorandum of Understanding was formulated as it was so as to ensure that the fifth respondent was included, he falling within paragraph (iii) of the definition and otherwise satisfying paragraphs (iv), (v) and (vi). It may be, although there is no evidence on the matter, that other Pirripaayi people, apart from the fifth respondent, would not come within the definition, but I am unable to see how, if the fifth respondent falls within the definition, others of his people would not fall within it also. 12 Be that as it may, I see no reason at all why the orders made by Moore J on 2 June 2009, granting leave to discontinue the proceedings, should be varied. I am informed that the orders made by his Honour on 2 June 2009 have not been entered. In the circumstances, the Court would have power under Order 35 rule 7(1) of the Federal Court Rules to vary or set aside the orders which his Honour made on 2 June 2009 but the Court's power to do so must be exercised with caution. 13 In my opinion each of the notices of motion should be dismissed, especially in the light of the matters which Ms Nikibin has drawn to the Court's attention. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate: Dated: 6 July 2009 Solicitor for the Applicant: E Nikibin of Gilbert + Tobin

Solicitor for the Fifth Respondent: F H T Wardhaugh of Newcastle University Legal Centre