Davis-Hurst on behalf of the Traditional Owners of Saltwater v New South Wales Minister for Land and Water Conservation

AND: NEW SOUTH WALES MINISTER FOR LAND AND WATER CONSERVATION

introduction 1 Mr Keith Kemp ('Mr Kemp') has moved the Court for an order that he be 'accepted as a party opposing the Native Title claims' in each of these two proceedings. 2 Mr Kemp has, by an amended notice of motion, disclosed that if joined as a party to the proceedings he will move the Court for orders that the claim in each proceeding be struck out and that the Saltwater Tribunal Council be wound up. It is not necessary here to give consideration to whether, were Mr Kemp a party to the proceedings, he would have an entitlement to seek orders of this kind. However, it seems clear from the terms of Mr Kemp's original notice of motion and his amended notice of motion that he does not wish to be joined as an applicant in these proceedings. If Mr Kemp is to be joined as a party to the proceedings, it seems clear that he must be joined as a respondent. 3 Although Mr Kemp, who did not have the benefit of legal representation, did not identify the provision of the Native Title Act 1993 (Cth) ('the Act') on which he placed reliance in seeking to be joined as a party to the proceedings, the only provision which would appear to be available to him is s 84(5). That subsection provides: 'The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings.' 4 I have concluded, for the reasons set out below, that the interests on which Mr Kemp places reliance for the purpose of his application to be joined as a party to these proceedings may be affected by a determination in the proceedings. I have further concluded that it would be appropriate for an order to be made in each of the proceedings that Mr Kemp be joined as a respondent party.

5 In Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 ('the Arakwal case') the Full Court of this Court gave consideration to the nature of the interests that might be affected by a determination of native title. The Full Court's decision in the Arakwal case involved consideration of the Act as in force prior to its amendment in July 1998. However, later authorities (see [7] below) confirm that the approach adopted by the Full Court in the Arakwal case is the approach now to be adopted in construing s 84(5) of the Act.

'Clearly, it was intended that an interest sufficient to give a person the right to become a party to an application for the determination of native title should be greater than that of a member of the general public.'

'The nature and content of the right to become a party to proceedings for the determination of native title, with the power as a party in effect to veto the process of mediation and conciliation which the Act favours, suggests that the interests with which s 68(2)(a) and the related sections dealing with parties are concerned are interests that are not indirect, remote or lacking substance. The nature and content of the right also suggests that the interests must be capable of clear definition and, equally importantly, that they are of such a character that they may be affected in a demonstrable way by a determination in relation to the application. There is, however, no reason to conclude from the subject matter, scope and purpose of the Act that the interests need be proprietary or even legal or equitable in nature. Whilst the interests must be genuine and not indirect, remote or lacking substance, there is no indication that, for example, a person who has a special, well-established non-proprietary connection with land or waters which is of significance to that person is not to be regarded as having interests that may be affected by a determination.' 7 The approach favoured by the Chief Justice in the Arakwal case has been more recently followed in Woodridge v Minister for Land & Water Conservation for the State of New South Wales [2001] FCA 419; 108 FCR 527 by Katz J; Chapman v Minister for Land and Water Conservation for the State of New South Wales [2000] FCA 1114 by Emmett J; Bissett v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365 by Tamberlin J and Walker v State of Western Australia [2002] FCA 869; 191 ALR 654 by French J. This list is not intended to be exhaustive.

The Present Applicant 8 The present applicant in each of the proceedings is Patricia Anne Davis‑Hurst AM JP ('Mrs Davis‑Hurst'). The applications disclose that Mrs Davis‑Hurst makes the applications on her own behalf and on behalf of the 'Kattang people of the Manning Valley'. The land the subject of each of the claims is known as 'Saltwater'. The present short titles of the proceedings are 'Kattang People - Traditional Owners of Saltwater #1' and 'Kattang People - Traditional Owners of Saltwater #2'. These titles do not reflect any judicial determination that the Kattang people, or the Kattang people of the Manning Valley, are the 'traditional' owners of the land the subject of the claims made in the proceedings. Whether or not native title exists in relation to the land the subject of the claims, and if it does, whether or not the applicant and the Kattang people of the Manning Valley are the persons holding the common or group rights comprising the native title, remains to be determined.

Interest asserted by Mr Kemp 9 Mr Kemp's claim to be a descendant of the Pirripaayi people has not been challenged. Nor has Mr Kemp assertion that the Pirripaayi people are traditionally associated by Aboriginal law and custom with an area that includes Saltwater been challenged. Mr Kemp's knowledge in these regards apparently comes from his own research, including research into the history and culture of the relevant area, and from information given to him by Bert Marr ('Mr Marr'). 10 Mr Kemp states in an affidavit filed on 6 March 2003 that: 'I have been informed by Bert Marr, and I believe from my own research into the history of the claim areas, that the current claims being made by the applicants are not solely based on the correct dreaming story referred to in paragraph 3 above, but on historical association with the Saltwater area. This historical association is based upon the voluntary and involuntary movement of Aboriginal people to the Purfleet area from other parts. Many of the Aboriginal people who were taken, or came to Purfleet would historically visit Saltwater to meet with other Aboriginal people. The applicants claim traditional ownership on a basis that either subsumes and negates Pirripaayi traditional ownership under the term Kattang or excludes Pirripaayi by amendment to claim native title under particular family surnames. Subsequently, the claimants, as a group, fail to demonstrate: i) that through descent they and their predecessors had an association with the area of claims wholly differentiable from identifiable Pirripaayi people traditionally associated with the area. ii) the existence of traditional customs and laws that give rise to the claimed native title that are wholly differentiable from customary Pirripaayi Law for the area in question. iii) that they have held the claimed native title in accordance with traditional laws and customs that are wholly differentiable from customary Pirripaayi Law for the area in question. In the circumstances, if the applicants' claim proceeds in its current form I believe that my ability to practice, develop and keep alive the knowledge I have about the Pirripaayi people and to use and teach the Pirripaayi language and customary laws will be affected.'

consideration 11 Mr Kemp does not himself wish to advance a claim for native title. He contends, however, that the group or community which is represented by the applicant is a 'cognitive illusion'. He asserts that there has been a failure adequately to differentiate the Taree/Purfleet Aboriginal community in order to identify the traditional owners of Saltwater. 12 The description of the community on whose behalf the claims are made as the 'Kattang people of the Manning Valley' reflects the position, as I understand it, that the simple description 'Kattang people' is too wide to be an apt description of the claimant group. Not all Kattang people, or possibly not all of the Kattang peoples, are suggested to be traditional owners of Saltwater. 13 The position of the applicant, as I understand it, is that the Kattang people who are now to be found in Manning Valley are the traditional owners of Saltwater. The position of Mr Kemp, as I understand it, is that it may be that some or all of the Kattang people from the Manning Valley are the traditional owners of Saltwater - but if they are, it is because their ancestors, like his, were Pirripaayi people. 14 It is apparently because of resource implications that Mr Kemp does not wish to advance a claim for a determination of native title in respect of Saltwater, either on his own behalf, or on behalf of himself and other living descendents of the Pirripaayi people. However, he is concerned that a determination in favour of the applicant would give formal recognition to a version of history that does not recognise the Pirripaayi people as the traditional owners of Saltwater. Mr Kemp's concern is not alleviated by the possibility that there may be extensive, or even complete, overlaps between the present claimant group and the living descendants of the Pirripaayi people. 15 Mr Kemp is further concerned, as I understand him, that it is possible, or even likely, that the applicant is the wrong person to represent the claimant group, however described, in these proceedings. Mr Kemp believes, on the basis of information which he has obtained from Mr Marr, that under traditional aboriginal law and custom a woman cannot claim the areas of land the subject of the applications. He also believes, apparently on the same basis, that the applicant may not accept, or perhaps be aware of, the correct dreaming story and the customary laws of the area in question. As is mentioned above, his belief is that the applicant accepts a version of the history of the claim areas that fails to give proper recognition to the connection of Pirripaayi people to Saltwater. 16 I am satisfied that Mr Kemp has undertaken considerable research into the history of the claim areas. He is, I find, concerned that any determination made by the Court in these proceedings may be seen to give legitimacy to an understanding of that history which he does not accept is complete. He fears that any such determination will adversely affect his ability to share the knowledge that he has acquired about the Pirripaayi people and his capacity to keep alive Pirripaayi language and customary laws.

17 Section 223 of the Act defines the expressions 'native title' and 'native title rights and interests' for the purpose of the Act. For present purposes it is enough to note that the two expressions mean the communal or group rights and interests of Aboriginal peoples in relation to land or waters where the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples. Determinations of native title in these proceedings, should they be made, will reflect recognition that native title in respect of the land in question exists, is recognised by the common law and has not been extinguished. Additionally, the determinations, should they be made, would involve 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.'

(see s 225 of the Act) 18 It is not appropriate for the Court to make determinations concerning any of the above issues on this application. However, the question of whether Mr Kemp's interests may be affected by a determination in either or both of the proceedings cannot be answered without reference to the nature and content of the determination sought by the applicant in the proceedings. I do not understand it to be the case that Mr Kemp fears that 'the common or group rights comprising the native title' in respect of Saltwater will be adversely affected by determinations in these proceedings. That is, I do not understand there to be any difference between Mr Kemp and the applicants as to 'the nature and extent of the [relevant] native title rights and interests' (see s 225(b) of the Act). Rather, as is mentioned above, Mr Kemp questions the description of the claimant group and the right of the applicant to represent the claimant group (see s 225(a) of the Act). 19 Mr Kemp's questioning of the description of the claimant group reflects, as it seems to me, two underlying concerns. First, a concern as to the identity of the persons, or the groups of persons, who hold the common or group rights comprising the native title in Saltwater. Secondly, a concern as to the identity of the traditional laws and customs under which that native title is held. Mr Kemp fears that determinations in these proceedings may give an unwarranted appearance of legitimacy to laws and customs which he claims may be of relatively recent origin. Exactly how recent he did not make clear. Nor is the evidence before me on this application sufficient to enable me to reach a judgment as to whether the laws and customs which Mr Kemp characterises as being based on 'historical association with the Saltwater area' (see [10] above) might now be properly described as traditional in character within the meaning of the Act (see Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; 194 ALR 538 esp. per Gleeson CJ, Gummow and Hayne JJ at [87]). However, Mr Kemp's reference (see [10] above) to the 'involuntary' movement of Aboriginal peoples to the Purfleet area suggests that he is speaking of laws and customs that it might be difficult to characterise as traditional within the meaning of the Act. 20 Mr Kemp is not merely dissatisfied with the way in which the named applicant is conducting these proceedings. He challenges the very basis upon which the applicant claims determinations of native title concerning Saltwater. It is therefore not necessary for me to choose between the approach adopted by Ryan J in Bidjara People (No 2) v State of Queensland [2003] FCA 324 and the approach adopted by Drummond J in Kulkalgal People (Aureed Island) v State of Queensland [2003] FCA 163 in considering whether a member of the claimant group who had become dissatisfied with the way in which the named applicants were conducting the proceeding was entitled to be joined as a party. 21 Following the hearing of the motion I gave leave for Mr Kemp to file supplementary written submissions, but I declined to allow him to supplement the evidence upon which he placed reliance. The other parties heard on the motion were granted leave to file answering written submissions. Mr Kemp did seek to supplement his evidence after the hearing of the motion, but I have disregarded all evidence filed by him after the hearing of the motion. 22 By their supplementary written submissions the applicants have asserted: 'Mr Kemp has not previously sought to assert an interest which is akin to a native title right or interest. As such, the submissions made by New South Wales Native Title Services Ltd … on 14 March 2003, which were adopted by the Applicants, do not address this claim. The Applicants have had no opportunity to lead evidence in opposition to this claim.' (footnote omitted) 23 The affidavit which Mr Kemp swore on 27 February 2001 in support of his original notice of motion stated: 'I wish to become a party to the Native Title claims: NG6013/98 NG6014/98 made over "Saltwater" I am a descendent of the Pirripaayi people which are the traditional owners of the country in which "Saltwater" lies. I do not agree with the grounds of the claim or the entitlement of the applicants.'

An extract from a later affidavit sworn by Mr Kemp is set out in [10] above. No party sought to place affidavit evidence before the Court in answer to the affidavits filed by Mr Kemp.

24 At the hearing, which was conducted somewhat informally because Mr Kemp had no legal representation, Mr Kemp placed reliance on a document, filed by him on 12 March 2003, headed 'Submissions'. That document makes reference to Mr Kemp's Pirripaayi descent and to the traditional connection of the Pirripaayi people with Saltwater. As the document headed 'Submissions' in fact included additional evidence touching on these two issues I asked the representatives of the parties opposing the motion whether they objected to the manner in which the evidence was placed before the Court. They indicated that they did not. They did not seek an opportunity to file affidavits in answer to the evidence contained in the document headed 'Submissions'. 25 I reject the submission that Mr Kemp had not, earlier than the time that he filed his supplementary written submissions, sought to assert an interest which is akin to a native title right or interest. In my view, the parties who were heard in opposition to Mr Kemp's motion had ample opportunity to lead evidence in answer to the evidence of Mr Kemp that he is a descendant of the Pirripaayi people and that the Pirripaayi people, rather than the Kattang people of the Manning Valley, are the traditional owners of Saltwater.

conclusion 26 I am not satisfied that Mr Kemp's interests in, first, establishing and maintaining the integrity of his own research, and secondly, in disseminating his knowledge of Pirripaayi language and culture are interests of the kind described by the Chief Justice in the Arakwal case (see [6] above). They are, in my view 'indirect' interests as the Chief Justice used that term. Further, the potential impact of any determination in these proceedings on those interests is, in my view, insufficiently direct to enable the Court to be satisfied that they are interests that 'may be affected by a determination in the proceedings' within the meaning of s 84(5) of the Act. 27 However, Mr Kemp's interest, as a descendent of the Pirripaayi people, in seeking to avoid the making of a determination by the Court that discounts the traditional connection which he believes to exist between the Pirripaayi people and Saltwater is, in my view, an interest of a different character. It is an interest that is 'not indirect, remote or lacking in substance'. It is an interest in any determination that might be made under s 225(a) of 'who the persons, or each groups of persons, holding the common or group rights comprising the native title are'. An interest of this kind is capable of 'clear definition' and it is capable of being 'affected in a demonstrable way by a determination in relation to [each] application'. 28 It is a matter of regret that this motion is being determined long after the filing of the applications and at a time when negotiations between the present parties towards the making of an indigenous land use agreements are well advanced. I have taken these factors into account in determining whether it is appropriate to make an order under s 84(5) of the Act joining Mr Kemp as a party to the proceedings. However, no party sought to mount a serious challenge to the factual basis upon which Mr Kemp advanced his claim to be joined as a party. The challenges made to Mr Kemp's application were legal in nature. I am more than conscious of the limited financial means available to the parties for the purpose of contesting interlocutory applications of this kind. However, having formed the view that I have about Mr Kemp's interests, I conclude that it would not be consistent with the interests of justice to refuse to join Mr Kemp as a party to the proceedings. 29 There will be an order in each proceeding that Mr Kemp be joined as a respondent party. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate: Dated: 4 June 2003 Keith Kemp appeared in person

Solicitor for the Applicant: Gilbert & Tobin