Edward Landers v State of South Australia

the motion 15 The State of South Australia (the State) by counsel supported the motion of the Dieri Mitha group to dismiss the Edward Landers application. The group of parties called collectively the Cooper Basin Oil and Gas Producers, and the Native Title Unit of the ALRM, also appeared by counsel. They each took a neutral view on the factual matters arising for consideration, but made helpful submissions on the proper construction and application of relevant provisions of the NT Act. Of course, the Edward Landers group by senior counsel resisted the motion. 16 The contentions in support of the motion were that (a) the Edward Landers group was not authorised by the Dieri People under s 251B of the NT Act to maintain the Edward Landers' application from the time it was amended, and so it was not authorised by all the persons who, according to their traditional laws and customs, hold the common or group rights comprising the particular native title claimed. Such authorisation was clearly required by s 61 of the NT Act. Senior counsel for the Edward Landers group did not gainsay the requirement of such authorisation, but contended that the Dieri Mitha group had not shown there is no arguable case that such authorisation had not been provided. (b) the Edward Landers application is not made on behalf of the native title claim group, namely the Dieri People, but on behalf of some only of the Dieri People. It excludes the persons claiming native title in respect of the claim area in the Dieri Mitha application, so it does not comply with s 61 of the NT Act. The contention is similar to one advanced by the Edward Landers group in seeking to have the Dieri Mitha application dismissed - that the NT Act does not permit the making of a claim for determination of native title by a subgroup of the native title claim group, or the grant of native title to a subgroup of the native title claim group.

authorisation 17 The Edward Landers' application is claimed to have been authorised by the Dieri People. 18 Section 61(1) requires that the Edward Landers group be authorised by all of the Dieri People who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed. Schedule A to the Edward Landers' application provides: The Dieri Native Title Claim Group comprises those people who hold in common the body of traditional law and custom governing the area that is the subject of the claim and who:- 1. Are related by means of the principle of descent to the following apical ancestors: 1.1 Ruby Merrick and Tim Maltalinha (also known as Tim Merrick) who are the parents of the sibling set - Martin, Gottlieb, Rebecca, Selma (or Thelma); 1.2 Kuriputhanha (known as 'Queen Annie') mother of Karla-warru (also known as Annie); 1.3 Mary Dixon (born at Killalpaninna) mother of the sibling set - Dear Dear (known as 'Tear'), Jack Garret, George Mungeranie, Joe Shaw, and Henry; 1.4 Bertha mother of the sibling set - Johannes and Susanna 1.5 Walter Kennedy husband of Selma (also known as Thelma) nee Merrick; 1.6 Florrie wife of Martin Merrick, and; 1.7 The man Pinngipan:a (born at Lake Hope) and the woman Kulibani (born at Kalamarina) who are the parents of Sam Tintibana (or Dindibana Ginjmilina). 2. Dieri principles of incorporation into the group according to traditional law and custom also include: 2.1 being of Aboriginal descent; and; 2.2 having a connection with the claim area in accordance with the traditional law and custom of the Dieri Native Title Claim Group which includes a principle of descent from their ancestors. 3. The Dieri Native Title Claim Group Management Committee (SC97/04) have the authority acknowledged by the Dieri Native Title Claim Group according to the traditional law and custom of the Native Title Claim Group to determine whether a person of Aboriginal descent has a connection to the Dieri lands and waters in accordance with 2.2 above. 4. Note with regard to those named applicants in accordance with 2. and 3. above, that the principle of authority, based on traditional laws and customs, incorporates the potential transfer of this authority to appropriate persons in future generations. 5. This native claim group however specifically excludes all of those people listed as being the applicant group in the particulars of claim filed in the Federal Court matter No. SG66 of 1999 being the Dieri People Angas Warren and Others, whilst those people's names appear as members of that applicant group." It will be necessary to refer to the significance of par 5 of that description when considering the second of the contentions. 19 Section 251B of the NT Act provides: "For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind - the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process - the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind." 20 The Dieri Mitha group and the State contend that, on the material before the Court, authorisation under s 251B was clearly not given to the Edward Landers group to bring and maintain the Edward Landers' application. Section 251B requires the authorisation to be given under the process of decision-making available under the traditional laws and customs of the Dieri People for making such authorisation decisions, and it is only if there is no such process that the persons in the native title claim group may agree to and adopt some other process of decision-making. The authorisation under s 251B of the NT Act relied upon by the Edward Landers group is said to have occurred at Broken Hill on 26-28 March 1999. It is also the meeting at which the agreement to separate the two native title claim groups, and to change the boundaries of the Edward Landers' application so as to avoid any overlap with the claim of the Yandruwandha People, was made. 21 The minutes of the Broken Hill meeting record, inter alia, that the six persons comprising the Edward Landers group are "authorised to make the application and deal with matters arising in relation to it on behalf of all the other persons" in the Dieri native title claim group, that is the Dieri People. The ALRM certification of 8 July 1999 under the then s 202(4)(d) of the NT Act attached to the Edward Landers' application noted the authorisation was given under s 251B(a) of the NT Act - that is according to a process available under the traditional laws and customs of the Dieri People - at the Broken Hill meeting. It considered the extensive notice of the Broken Hill meeting, the fact that some 60-70 people attended on each day of the meeting, and that two anthropologists present at the meeting were of the view that the meeting represented a meeting of the Dieri People: the former s 202(5)(a). 22 Submissions by Ms Warren and Mr Warren on behalf of the Dieri Mitha group asserted the availability of a process of decision-making available under the traditional laws and customs of the Dieri People, and that it had not been followed in the process by which the Edward Landers' group claim to have been authorised to bring and maintain the Edward Landers' application. They indicated that, under the process available under the traditional laws and customs of the Dieri People, many of the persons who participated in the Broken Hill meeting and decision were not entitled to have participated; that some persons within the Dieri People who should have been involved in the decision did not participate; and in some instances those persons who should have been involved did not have the opportunity to do so. They further contended that a number of persons in the Edward Landers' group did not have the native title rights and interests which they claimed, that that group had not consulted with important tribal Dieri persons and that it did not include sites significant to the Dieri People. They also contended that a number of the persons in the Dieri Mitha group did not have the opportunity to, or did not, attend the Broken Hill meeting so that the requisite authorisation under s 251B was not then given to the Edward Landers' group. Ms Warren deposes to not having attended the Broken Hill meeting because she did not think she was invited or expected to attend, as it concerned those persons then interested in the Edward Landers and Yandruwandha claim groups. 23 Ms Warren further says the Edward Landers group have lost their connection with the claim area, and their knowledge of and connection with traditional Dieri laws and customs, and that none of the persons in the Edward Landers group was born within the claim area. Mr Angus Warren deposes that no member of that group has knowledge of Dieri traditional laws and customs, or of Dieri sites, in particular the knowledge that is passed on through initiation ceremonies. 24 Whilst there may be considerable merit in the matters raised by the State and on behalf of the Dieri Mitha group, in my view they are matters which should be dealt with at the hearing of the Edward Landers' application. At this point in the proceedings, I am not satisfied to the necessary degree to summarily dismiss the application on the ground that it was not authorised by the Dieri People in accordance with s 251B of the NT Act. 25 The process of authorisation relied upon by the Edward Landers group is that which took place at the Broken Hill meeting. There is evidence that the Broken Hill meeting resulted in the Edward Landers' application being brought by the Edward Landers' group. It was an authorisation which the Edward Landers group say was given by the Dieri People. As noted, it was duly certified by the ALRM on 8 July 1999 as amounting to authorisation under s 251B(a) of the NT Act. 26 As the State and the Dieri Mitha group have contended, the process of decision making at the Broken Hill meeting does not immediately suggest the process reflected a process under the traditional laws and customs of the Dieri People. There is no evidence to indicate that the Edward Landers group claim that the alternative means of authorisation under s 251B(b) was available or was undertaken. There are disputed claims as to whether the Dieri Mitha group was invited to, or was eligible to, attend the Broken Hill meeting. Hence there is an issue whether the authorisation then given was by all the Dieri People. The Dieri Mitha group furthermore, at least in submissions, contended specifically that the process of decision-making required by the traditional laws and customs of the Dieri People is quite different from that undertaken at the Broken Hill meeting. Those claims may all ultimately prove to be correct. But at this point it is necessary to be satisfied that there is no real case that the Broken Hill meeting resulted in an authorisation under s 251B of the NT Act. It will be rare that an assertion of "insufficient evidence" on the topic (which was the description given by the State in its written submission) will lead the Court to the necessary degree of persuasion. 27 In this instance, as I have said, I do not take that step. The Broken Hill meeting was extensively advertised. There were significant numbers of people who attended on each day. It is not clearly a case where those attending were not Dieri People. The circumstances in which Ms Warren, and presumably others, did not participate are apparently contentious. Even though the process of decision-making is apparently generally consistent with current formal meeting procedures, it does not automatically follow that they do not reflect processes according to the traditional laws and customs of the Dieri People. They may not do so, but that is not a matter I should decide on the current motion. Therefore I am not persuaded that the claim by the Edward Landers group to have been authorised pursuant to s 251B by the Broken Hill meeting to bring and maintain the Edward Landers' application is manifestly groundless. It follows that I refuse summarily to dismiss the Edward Landers' application on the ground that it was not authorised under s 251B of the NT Act. 28 In reaching that view, I have not placed any weight upon the decision of the Native Title Registrar to register the Edward Landers' application. I adopt the reasons of Carr J in Phillips v State of Western Australia [2000] FCA 1274 in that regard. I did however place some, although only a little, weight upon the fact that the ALRM as the representative body provided its certification in respect of s 251B(a) on 8 May 1999. As the person involved in the certification has not responded to the criticisms now made of the authorisation relied upon, I do not think it proper to place much significance upon the document. In other cases, with different or additional information, the position may be different.

description of the claim group 29 The native title claim group is the Dieri People. However, as noted above in [18], the description of the native title claim group in the Edward Landers' application includes an exclusion of certain persons. It is convenient to repeat the exclusion. It is in the following terms: "This native title claim group however specifically excludes all of those people listed as being the applicant group in the particulars of claim filed in the Federal Court matter No. SG66 of 1999 being the Dieri People Angas Warren and Others, whilst those people's names appear as members of that applicant group." The reasons for the exclusion expressed in par 5 of the description of the native title claim group are twofold. They emerge from an affidavit of the solicitor for the Edward Landers group affirmed on 17 March 2003. 30 The first reason was to avoid the obstacle to registration by the Native Title Registrar of the amended Edward Landers' application which would otherwise have arisen under s 190C(3) of the NT Act by reason of the Dieri Mitha application. Section 190C(3)(a) provides: "The Registrar must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application; if: (a) the previous application covered the whole or part of the area covered by the current application; …" As the Dieri Mitha application was also on behalf of the Dieri People (or some of them), if the Edward Landers' application had been expressed as being on behalf of the Dieri People without the exclusion in par 5, some of the persons in the native title claim group identified in the Edward Landers' application would have been members of the native title claim group in the earlier Dieri Mitha application over the claim area. The Registrar could not then have been satisfied of the condition specified in s 190C(3)(a). Section 190(6) would then oblige the Registrar not to accept the Edward Landers' application for registration. 31 The second reason was that the solicitor for the Edward Landers group had been instructed by six identified persons on 26 May 1999 that they did not wish to be included in the native title claim group in the Edward Landers' application. Those six persons were not named applicants in the Dieri Mitha applications. 32 Whatever the reason, subject to addressing two arguments, I consider the Edward Landers' application does not comply with s 61(4) of the NT Act. It is required either to name the persons making up the native title claim group or to describe them sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. It adopts the latter of those alternatives. It does not however do so in a way which properly complies with s 61(4). That is because it does not describe the native title claim group, the Dieri People. It describes a smaller group of people namely the Dieri People but excluding those persons referred to in par 5 of Schedule A to the application. They are the persons for whom the Dieri Mitha application is brought. According to the amended particulars of claim in the Dieri Mitha application, that application is brought on behalf of 87 named persons. The Edward Landers group acknowledged that they, or most of them, are part of the Dieri People. The smaller group is not the group of people who should exclusively enjoy the communal native title if it is granted. Yet that is the purport of the Edward Landers' application. It seeks, and if it is successful will result in, a determination of native title on behalf of some only of the Dieri People. 33 The Edward Landers group accepts that it is of central importance to the conduct of native title determination applications, and the exercise of the rights that flow from their registration, that those who bring such applications and who exercise such rights on behalf of a group of persons claiming to hold native title rights have the authority of the group to do so: see per French J in Daniel at [11]. In Quall v Risk O'Loughlin J at [67] described the proper identification of the native title claim group as going to the heart of a native title determination application. I have rejected the submission that the Edward Landers' application should be summarily dismissed because it is clear that it was not authorised by the Dieri People under s 251B of the NT Act. But, in my view, it also follows from the need for such authorisation that s 61(4) requires the application to be on behalf of the people who have authorised it. It does not permit the making of a claim by a native title determination application by a subgroup of the native title claim group, or the grant of native title to a subgroup of the real native title claim group: see Ward v State of Western Australia (1998) 159 ALR 483 at 541, Risk v National Native Title Tribunal[2000] FCA 1589 at [60], Tilmouth v Northern Territory of Australia (2001) 109 FCR 240. By excluding from the authorising group, namely the Dieri People, the 87 persons named as the applicant group (or even merely the Dieri Mitha group) in the Dieri Mitha application, that is what the Edward Landers' group has done. The smaller group, as expressed, is not the group of people who should exclusively enjoy the communal native title. 34 The first reason why that prima facie conclusion should not follow, as urged by senior counsel for the Edward Landers' group, was that s 61(1) and s 61(4) of the NT Act should be read down to require the expression of a claim group capable of registration under Part 7 of the NT Act, and so must refer to a native title claim group which is expressed in the application, in terms capable of satisfying the Registrar of eligibility for registration. A more subtle contention was put on behalf of the ALRM, which would have the same result. The submission was that the expression "native title claim group" in s 61(1) is the group of persons defined by the application as required by s 190B(3) of the NT Act, and may be a different and smaller group than the persons who hold or may be determined as holding the native title claimed, as identified by s 203BE(5)(a) - previously s 202(i)(a). Otherwise, the ALRM contends, the registration requirements introduced by the amending Act would have "raised the bar" so high as to deny registration to all but unassailable claims. 35 I do not accept those contentions. The significance of the requirement introduced by s 251B is clear: Daniel, and also see Moran v Minister of Land & Water Conservation for New South Wales [1999] FCA 1637 per Wilcox J at [48]. The proper identification of the native title claim group is the central or focal issue of a native title determination application. It is the native title claim group which provides the authorisation under s 251B, and it is the group on whose behalf the claim is then pursued and, if successful, in whose favour a determination of native title is then made. I do not consider the registration procedures as introduced in Pt 7 of the NT Act in 1998 were intended to detract from that focus. Nor do I consider there is any tension between those procedures and s 61 of the NT Act. 36 The term "native title claim group" in s 253 is referred to as meaning the group mentioned in relation to the native title determination application in s 61(1). It refers to "all the persons" who authorised the particular applicants to make the claim. In this instance, it is the claim of the Edward Landers' group that they were authorised by the Dieri People. But the application does not then identify the Dieri People as the persons on whose behalf the claim is made, but some only of the Dieri People. I think the requirements of s 61(1) and (4) are clear. 37 Registration of a native title determination application gives the claimants the status of being a native title party for the purposes of Div 3 of Pt 2 of the NT Act, and the rights which attach to that status pending the determination of the native title application. Therefore registration of a native title determination application has a particular significance, which in the present context is only temporary until the Edward Landers' application is determined by the Court. I do not discern from the context of ss 190A, 190B and 190C or from their words anything which would suggest that the clear words of s 61(1) and (4) do not mean what they say. Nor that the words should be read down in the way contended by counsel for the Edward Landers' group. 38 As the Second Reading Speech of the Attorney-General (Hansard, House of Representatives, 9 March 1998, p 781) indicates, the introduction of the registration provisions by the amending Act was to ensure only those with "a credible claim" should become eligible as a "native title party". It also sought to avoid in the future that status being accorded to those who had made an application for determination of native title under the old Act, without the need for authorisation under s 251B, and who may have made "ambit and unprepared claims". The representative body was thus obliged by the then s 202(6) to make all reasonable efforts to achieve agreement between overlapping claims. In the case of overlapping claims by different native title claim groups, ultimately it will be a matter to be determined whether a particular native title claim group is entitled to native title. Section 190C(3)(a) does not prevent registration of native title determination applications by competing native title claim groups. It seeks to ensure that an application for native title by a particular native title applicant is authorised by the native title claim group. If there are different persons making a claim over the same or partly the same area on behalf of the one native title claim group, it is consistent with giving s 61(1) and (4) their full operation and with s 251B that the legislation intended such registration to be refused. The circumstances of different applicants on behalf of the same native title claim group separately seeking determination of native title over the same, or partly the same, claim area would tend to indicate some flaw in the authorisation process. The proper course, before registration, may be for the native title claim group under its proper processes to substitute new applicants in one or other of the claims under s 66B of the NT Act or to have one or other of the authorised claims amended to avoid any overlap. Hence, in my judgment, the procedural requirement of s 190C(3) does not impose any "unassailable bar" upon registration but is consistent with the proper operation of ss 61(1), 61 (4) and 251B of the NT Act. 39 The other contention can be dealt with briefly. It was put that par 5 of Sch A to the Edward Landers' application only provisionally excludes some of the Dieri People from the native title claim group. It does have a temporal element. But it seeks to exclude from the native title claim group on whose behalf the application is made certain members of the native title claim group. It does so, as was acknowledged, not because the excluded persons are not members of the Dieri People, but to secure registration of the application. 40 In my view, s 61(1) and (4) do not permit such an exclusion whether for that reason or otherwise. The application, for the reasons I have given, does not comply with s 61(1) and (4) of the NT Act. 41 I observe that the second reason for the native title claim group being expressed as it is in the Edward Landers' application is of no real moment. The six persons referred to are not the same as the Dieri Mitha group, and obviously do not correspond with the 87 persons named as being those on whose behalf the Dieri Mitha application was brought.

CONCLUSION 42 For the reasons given, in my judgment the application should be dismissed. I do not consider it appropriate simply to adjourn the Edward Landers' application to enable it to be amended. In the first place, there was no suggestion on the part of the Edward Landers group that I should do so. Moreover, if it were to be amended, the application would require referral to the Native Title Registrar: s 64(4), and the Registrar would then have to undertake the procedures prescribed by s 66A. As I discern at least the real possibility of there being considerable dissension between quite significant sections of the Dieri People as to who is authorised to institute and maintain a claim for determination of native title on its behalf, such issues are better addressed in a fresh authorisation process under s 251B which should enable a fresh native title determination application to be made on behalf of all the Dieri People. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Applicants: Mr S Tilmouth QC with Mr S Kenny

Solicitor for the Applicants: Camatta Lempens

Counsel for the First Respondent: Ms G Brown

Solicitor for the First Respondent: Crown Solicitor of South Australia

Counsel for the Aboriginal Legal Rights Movement: Mr A Collett with Ms G Cotton

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

Counsel for the Dieri People: Ms R Warren appeared in person Mr G Warren appeared in person

Counsel for Cooper Basin Oil & Gas Producers: Dr M Perry

Solicitor for Cooper Basin Oil & Gas Producers: Kelly & Co.

Counsel for WMC Mining: Ms J McPherson with Ms A Maddern

Solicitor for WMC Mining Jan McPherson

Date of Hearing: 19 March 2003

Date of Judgment: 31 March 2003