Far West Coast Native Title Claim Group v State of South Australia

REASONS FOR JUDGMENT 1 Order 1 of the interlocutory application, originally made on 30 September 2011, has been refused: Far West Coast Native Title Claim v South Australia (No 2) (2012) 204 FCR 542. Subsequent to that, the interlocutory application was amended by Robert Victor Miller for additional orders: firstly, by order 3 that Mr Miller be included and recorded as a respondent party and, as an alternative, by order 4 that the applicant to the application itself produce evidence pursuant to s 84D(1)(a) of the Native Title Act 1993 (Cth) in relation to the application made. 2 In the course of the exchange of information, for the purposes of hearing those orders, the applicant in the proceeding has filed an affidavit of Clem Lawrie of 22 November 2012 and an affidavit of Oscar Linde of 14 November 2012. The affidavit of Mr Linde amounts to the production of the evidence sought pursuant to order 4 of the amended application. 3 When the matter commenced hearing this morning, counsel for Mr Miller, whose interlocutory application it is, indicated that he did not seek an order that Mr Miller be included as a respondent party. Mr Miller is, as I have noted on other occasions, a member of the claim group. 4 As a result of the process of tendering evidence this morning, counsel for Mr Miller has now proposed that the interlocutory application be further amended. Firstly, by adding a paragraph 5(a), namely, that the Court finds that the authorisation (resulting in the orders of 18 January 2006) was defective; secondly, by paragraph 6, for an order that, under s 84D(4)(b), that the consent determination orders will include three specific provisions relating to the establishment of a separate Mirning Aboriginal Corporation and that the Far West Coast Aboriginal Corporation, the proposed prescribed body corporate for any consent determination, refer matters arising on Mirning country to the Mirning Aboriginal Corporation; and, thirdly, to redefine the claim group so as to include the descendants of Gordon Charles Naley as part of the Mirning people. 5 That amendment to the application has been opposed by counsel for the applicant on the principal application. I am not prepared today to grant leave to further amend the interlocutory application in the terms sought. It is obvious that the proposed order 5 (a) does not seek interlocutory orders or any orders. That may well be because s 84D provides for any defects in authorisation to be accommodated within Court orders, rather than to necessarily result in the termination of an application under s 61 but it necessarily involves, as the argument was foreshadowed, the final determination as to the quality of the authorisation to bring the application itself. It is not presently clear how such a final determination can be made on an interlocutory application. 6 I am cautious about making a determination on an ultimate issue of fact on an interlocutory application. Counsel for Mr Miller has not persuaded me at present that such a step is arguably appropriate. 7 I am also cautious about the power, or the appropriateness, if there is power on an interlocutory application to make the proposed order 6 relating to the establishment of a Mirning Aboriginal Corporation and how the proposed prescribed body corporate, the Far West Coast Aboriginal Corporation, should conduct matters in certain circumstances when and if there is a consent determination. Indeed, it appears to me that there is a somewhat inherent contradiction in the proposition that the Court should, on the application of a person who is a member of the claim group, require a consent determination where presently there is none to include certain terms which may not be supported by the applicant, the claim group, or indeed by the persons who constitute one of the several sub groups of the claim group identified as the Mirning people, or by the respondents. There is then by definition no consent. 8 It is a matter for the applicant as to what terms of a determination the applicant will agree to, and for the State and other respondents as to what terms of a determination they will agree to, if indeed there is agreement at all. As is commonplace, counsel for the applicant has indicated that, in the event of a consent determination being agreed upon at that level, the applicant will then revert to the claim group as defined in the native title application for general instructions at a meeting which would then take place. 9 At present, therefore, I am not disposed to allow the amendment of the interlocutory application to seek the orders sought in paragraph 6.1 and 6.2. 10 The third part of order 6 sought is that the Mirning People be defined as including the descendants of Gordon Charles Naley. The status of those descendants has been the matter of considerable debate over the conduct of this matter, both by directions hearings and by other interlocutory applications for some time. In my view, that addition to this interlocutory application today is inappropriate. It is agreed that the matter could not proceed on that issue today because further evidence is proposed to be adduced to support it. The issue is the same as that arising on an interlocutory application by Michael Alfred Laing of 20 November 2012, in the sense that he seeks the same outcome. That notice of motion will have to be stood over for further consideration. 11 Accordingly, at this point, I do not propose to allow the amendments that have been sought. As I have indicated, at present it seems to me that the remaining order which is sought, that is, paragraph 4 of the interlocutory application as amended, has been satisfied by the filing and service of the affidavit of Mr Linde. 12 I repeat that the application for Mr Miller to be joined as a respondent party has been withdrawn. It would follow that today's hearing has therefore come to an end. Counsel for Mr Miller (and I think I can safely say) for Mr Laing on his notice of motion and, it is obvious from the proposed evidence, some other Mirning people or people who identify themselves as some of the Mirning people are concerned about the conduct of this claim by the applicant. It is not a view which, on the evidence, is universally held by all the Mirning people. Counsel for Mr Miller, referring to his role today in an appropriate way, expressed some frustration or concern that the Mirning people, who are supporting Mr Miller in this application may have nowhere to go, at least until and if there is a proposed consent determination and then a meeting of the claim group, and even then an agreement to the proposed consent determination by the claim group may not accommodate the concerns which they have. 13 The proposed consent determination, if there ever becomes one proposed, may or may not accommodate those concerns. I do not know. Indeed they too do not know yet. If it does not, and notwithstanding that the claim group as a whole supports the consent determination which is proposed, it may then be an appropriate time for the Mirning people, or at least some of the Mirning people, to express their concerns through the revival of some application before the Court. I am not to be taken as accepting that they should do that, or that if they do that it would be a successful application but it seems to me that that is the appropriate time at which the sort of concerns which are now expressed, but expressed on behalf of some only of those people who identify as Mirning at present, should raise the issue. 14 Otherwise, it is a speculative concern, perhaps based in real perceptions but nevertheless, until there is a proposed form of consent determination, a speculative concern to which the Court should not presently respond. 15 To leave the notice of motion alive, I note that order 2 of the interlocutory application remains on foot and can be activated in due course if necessary. It is the catchall clause for other unspecified orders. I do not propose to allow paragraph 6.3 of the proposed further amended interlocutory order to be sought today. That is not to foreclose that application in the reasonably near future, although I would wish hear argument as to whether Mr Miller has the status to make the application. As I have noted it is an issue which, as I understand it, Mr Laing is ventilating in his notice of motion of 20 November 2012. 16 I propose, therefore, to stand over this interlocutory application with no orders made on the interlocutory application other than, firstly, refusing leave to amend the application at present in terms of the proposed paragraphs 5, 6.1, 6.2 and 6.3. That is with the intimation that at present, in my view, order 4 is unnecessary because it has been satisfied by the filing and service of the affidavit of Mr Linde but so that a further application may be pursued provided seven days notice in writing is given of any proposed amendment to the interlocutory application. It will be adjourned to the same date as the Laing notice of motion is listed for further directions. 17 If Mr Miller wishes to reapply to add paragraph 6.3 or indeed to apply to make further amendment to that interlocutory application at that time, he may do so. I am not intending to foreclose him from doing so. So the order on the interlocutory application today, apart from refusing the leave to amend which has been sought, is simply that it be stood over to the same date as the Laing notice of motion is stood over for further directions. It is stood over on the basis that, as presently advised, order 4 is no longer necessary and order 3 has been withdrawn. 18 If Mr Miller does wish to do so, he must give seven days notice of his proposed amendments, and both Mr Miller and Mr Laing will have filed such further evidence as they propose to rely upon in support of the orders which they want. In Mr Laing's case, I am told that includes a proposed anthropological report. In relation to the Laing notice of motion, I propose to stand that over also to a date in late January 2013. I will hear counsel as to a convenient date shortly. It will be listed for directions. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.