Far West Coast Native Title Claim v State of South Australia

Solicitor for the Mirning Community Incorporated: Campbell Law

Counsel for the Applicant: O Linde

Solicitor for the Applicant: South Australian Native Title Services

Counsel for the State of South Australia: S McCaul

Solicitor for the State of South Australia: Crown Solicitors Office

IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 6008 of 1998

JUDGE: MANSFIELD J DATE OF ORDER: 21 JANUARY 2011 WHERE MADE: ADELAIDE

1. The application of Mirning Community Incorporated to be joined as a respondent to this application be refused. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 6008 of 1998

JUDGE: MANSFIELD J DATE: 21 JANUARY 2011 PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The Mirning Community Incorporated (MCI) has applied to be joined as a respondent party to this proceeding under s 84(5) of the Native Title Act 1993 (Cth) (the NT Act). 2 Section 84(5) 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 and it is in the interests of justice to do so. 3 The concept of "interest" is defined in s 253 of the NT Act as follows: interest, in relation to land or waters, means: (a) a legal or equitable estate or interest in the land or waters; or (b) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with: (i) the land or waters; or (ii) an estate or interest in the land or waters; or (c) a restriction on the use of the land or waters, whether or not annexed to other land or waters. 4 It is not suggested that the word "interests" in s 84(5) as first appearing in the subsection has a different meaning from the word "interest" as defined although it is used as a plural. It is used as a plural elsewhere in s 84, as well as in the singular in s 84(3). 5 Before addressing the way in which MCI puts its claim to have interests which may be affected by a determination in the proceedings, it is necessary to note a little of the history of the claim.

Background 6 It is common ground that the Mirning People brought a native title claim under s 61 of the NT Act to the Court in respect of an area of land in the far west coastal area of South Australia in 1998, at about the same time as a group of people identified as the Far West Coast People as native title claimants also brought a similar claim over an area of land in the same region. There was an overlap of significant geographical proportions between the two claims. The original Mirning People's application was commenced by six named persons as the applicant over a claim area described as the same claim area as that the subject of the "Native Title Claim WC 95/13 and the Whole of the Yellabinna Regional Reserve", but with certain exclusions. It did not describe the nature of the native title claim group in any detail. It was brought by notice to the National Native Title Tribunal (the Tribunal) in accordance with the procedures then applying under the NT Act. Following the amendments to the NT Act effected by the Native Title Amendment Act 1998 (Cth), the matter was transferred to the Court and given its present number. 7 There were also several other claims under s 61 of the NT Act brought on behalf of differently described claim groups, in which the claim areas overlapped to some degree with either the original Mirning People's claim or the original Far West Coast People's claim. 8 In May 2004, at Spear Creek, there was an extensive mediation as a step in what was called the Central West Mediation Strategy, facilitated by the Aboriginal Legal Rights Movement Inc (ALRM), the relevant native title representative body for South Australia at the time, and by the Tribunal. It was intended to explore mediated resolution of those extensive overlaps. It was largely successful, although there were a number of steps required after the Spear Creek meeting to give effect to, and to implement, the agreements reached at that time. 9 Following the Spear Creek meeting, ALRM facilitated a series of meetings of the Mirning People and Far West Coast People to allow them to consider and, if appropriate, to authorise decisions to amend the then Far West Coast People's application to combine it with the Mirning People's application. The joint meetings required some further processes to be undertaken. 10 Following those processes, it was agreed at a meeting on 19 and 20 December 2005 that a reconstituted and larger native title claim group should authorise the amendment of the existing claims to facilitate their combination in terms of a proposed amended native title determination application presented at the time. That meeting, pursuant to s 251B of the NT Act, authorised Clem Lawrie, Gladys Miller, Sam Mastrosavas, Kenneth Roberts, Barker Bryant and Richard LeBois to act as the applicant in the proposed amended application. An amended native title determination was then filed. It substituted the "Far West Coast Native Title Claim Group" as described in Attachment A to that application (it is Exhibit A to the affidavit of Phillip Edward James Broderick sworn on 4 January 2006) as the native title claim group on whose behalf the claim was made. It included both the people who were previously separate claimants as the Mirning People and the Far West Coast People. 11 That is the present claim. It has been progressing towards a determination, either by consent or after a hearing. 12 The present application by MCI to be joined as a party to the proceeding is an indication that the matter may not progress to a determination as anticipated. Lying behind the application is a concern expressed on behalf of some of the persons who presently identify as a subgroup of the present claim group as Mirning People that their particular interests may not be properly represented in the processes presently taking place. I shall refer to that in more detail below.

Mirning Community Incorporated 13 MCI was incorporated on 20 November 2009 under the Associations Incorporation Act 1985 (SA). Its objects are to encourage, promote and cultivate an appreciation of Mirning language, culture, history and heritage; to preserve and protect that language, history and culture; and to carry out activities to do so; and to engage in such other activities as may be incidental to or in furtherance of those purposes. Membership is confined to Mirning persons who are accepted by the Board of MCI to membership. 14 To be eligible to be a member, a member must be a "descendant", that is a direct descendant from defined apical ancestors. The apical ancestors are described as follows: 1. Willis Michael "Mickie Free" Lawrie (the son of a woman named Tjabitja), and his first wife Sara Rose Mingo Button, who are the antecedents of Melba Lawrie, Isabel Lawrie, William Lawrie, Olga Lawrie, Katie Lawrie, Albert Lawrie and Margaret Lawrie; 2. Willis Michael "Mickie Free" Lawrie (the son of a woman named Tjabitja), and his second wife Florence "Flora" Bertha Richards, who are the antecedents of Hazel Lawrie, Rupbert Lawrie, Beatrice Lawrie, Maxine Lawrie, Betty Lawrie, Moncreiff Lawrie, Enid Lawrie and Bertrum Lawrie; and 3. Gordon Charles Naley. 15 Membership is dependent upon the Board, in its absolute discretion, accepting the applicant for membership. The Board has power to decide that a member is not a person of Mirning descent, that is, not a descendant as defined by reference to the terms "descendants" and "apical ancestors" in the Rules. The Board comprises at least five members of MCI. The first members of the Board are Robert Claude Lawrie, Iris Bergoyne, Dorcas Miller, Michael Alfred Laing, and Bunna Lawrie (Tjithranangal Free). 16 The persons who are members of the Native Title Claim Group in the current proceeding are specified named people and their biological descendants. The named people include a number of persons who are, or identify as, Mirning People, and who are not necessarily eligible for membership of MCI because of its confined description of apical ancestors in the MCI Rules. In essence, the MCI Rules confine the eligible members to descendants of Willis Lawrie or Gordon Charles Naley. 17 The reasons why MCI has applied to be joined as a respondent party to the application is set out in the supporting affidavit material. It is asserted that the Mirning People agreed to combine the Mirning People Claim with the Far West Coast People Claim, dependent upon details of a further agreement being negotiated. This would give to the Mirning People as a subgroup certain decision-making rights for activities over that part of the combined claim area which had previously been the subject of the Mirning People Claim. It is also asserted that no such agreement has since been negotiated. Consequently, because that agreement was not negotiated, the Mirning People who are part of the claim group are not having a sufficient say in the means by, and the form in, which the present claim is being progressed. They complain that the applicant (comprising the persons named in [10] above and, which includes at least one Mirning person) are managing the claim through a "combined claim representative body called the Far West Coast Traditional Lands Association Inc (the FWCTLA)", and that the FWCTLA has failed to include, and to have proper regard to the decision-making requirements of, the Mirning People's interests or to consult adequately with them, so that relationships have broken down. Consequently, they formed MCI to look after those interests as a responding party to the claim. It is said that there are 165 persons who are members of MCI. 18 It is therefore clear enough that MCI, and those persons who support the application on behalf of MCI and who are its members, seek to use MCI as a vehicle to protect or enforce their claimed native title rights and interests in the claim area as a subgroup as against other members of the claim group. Potentially, to a degree, there may be a departure from the consensus previously reached (this being that the combined claim reasonably promptly should progress towards determination) because there are (inter alia) assertions that the "Mirning Community" still claims that the land and waters identified in the original Mirning Peoples claim is solely Mirning land. I suspect that MCI may assert that part of the present claim area, which previously was subject of the Mirning Peoples claim, is in fact an area of land in which a different and smaller claim group than the combined native title claim group occupies and enjoys native title rights and interests to the exclusion of others. There are assertions in the affidavit material that the "Mirning community" would not have given away their registered claim and agreed to combine unless their concerns were met. There are assertions that, if the claim is progressed in its present form, the "Mirning People" will not have any right to manage their own land. There are also concerns, interestingly, having regard to my provisional understanding that not all persons who previously identified as Mirning People as a separate claim group are eligible for membership of MCI, that there is some disagreement within the Mirning People community (to use a neutral term) and within the wider claim group, as between the Mirning People or some of them and the wider claim group, as to how the claim should be managed and progressed to finality. 19 In my view, it is not necessary to explore those questions further on this application.

Consideration 20 The MCI proposition is that, in the circumstances, it has a sufficient interest to be joined as a party. It asserts both a legal or equitable estate or interest in the land or waters the subject of the present claim, or some other right, charge, power or privilege over or in connection with that land or waters, so as to enliven either subcl (a) or (b) of the definition of "interest" in s 253 of the NT Act. Its submissions assert that it is an appropriate and necessary party because - (1) the detailed agreement to operate intramurally between the Mirning People who constitute part of the claim group and the Far West Coast People who also constitute part of the claim group referred to above was not negotiated, finalised or executed; or (2) such an agreement, if it was sufficiently established, has not been complied with; and (3) the role of FWCTLA in conducting and administering the present claim is either inappropriate or invalid because it does not allow sufficient input from, and decision-making having regard to, the interests of the subgroup comprising the Mirning People for consultation with them so that (as I anticipated above) critical relationships may be breaking down. 21 A starting point to determine whether, in those circumstances, MCI has a sufficient interest to be eligible to be joined as a party to the proceeding is provided by the decision in Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 (Byron Bay). That case concerned a legislative ancestor of s 84(5), which was introduced by the Native Title Amendment Act 1998 (Cth). It is not said in submissions that the principles there expressed are no longer appropriate, because of that amendment, subject to one matter to which I shall refer. The legislative ancestor of s 84(5) was then s 68(2)(a) of the NT Act. In that case, Black CJ said at 7-8: 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. … It does not follow, however, that the objects of the Act would be advanced if s 68(2)(a) and related provisions concerning parties were interpreted as extending to interests and affectations of an emotional, conscientious, ideological or intellectual kind only. 22 Black CJ then continued at 9-10: The formation of an association or the incorporation of a body with particular objects will not, of itself, create interests that may be affected for the purposes of provisions in the Act relating to parties. … [A] body that represents the interests of others whose members have interests that may be affected, does not, for that reason alone, become a person whose interests are affected; such interests as it thereby has are wholly indirect. This is not to deny that a corporation may have interests that may be affected by a determination of native title if, for example, its activities might be curtailed or otherwise significantly affected by the determination. 23 Merkel J at 43 made a similar point. His Honour pointed out that the problem arising in respect of an organisation representing members who have interests that may be affected by a determination is that the interests of the organisation are indirect. In other words, it is the interests of the members, rather than those of the incorporated association representing them, that may be affected in the relevant sense. The principles laid down in Byron Bay have been applied in a number of subsequent cases: Woodridge v Minister for Land and Water Conservation for the State of New South Wales [2001] FCA 419; (2001) 108 FCR 527; Dann on behalf of the Amangu People v Western Australia [2006] FCA 1249; Budby on behalf of the Barada Barna People v Queensland [2010] FCA 1017; Adnyamathanha People No 1 v South Australia [2003] FCA 1377; (2003) 133 FCR 242; Harrington-Smith on behalf of The Wongatha People v Western Australia [2002] FCA 184; Bisset v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365; Davis-Hurst v New South Wales Minister for Land and Water Conservation [2003] FCA 541; Woodridge v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1109; (2002) 122 FCR 190. 24 Counsel for MCI suggested that the High Court decision in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 had qualified that position. The appellant in that case had brought proceedings in this Court relying upon s 80 of the Trade Practices Act 1974 (Cth) (the TP Act) seeking an order declaring that certain statements of the respondent, about anticipated traffic volumes in a prospectus inviting the public to subscribe for securities in unit trusts ultimately involving an investment in a proposed toll road, were misleading and deceptive. The appellant had relied upon s 80 for its standing. That section authorised the Australian Competition and Consumer Commission "or any person" to seek injunctive relief in respect of a contravention of the TP Act. The point specifically decided by the High Court, relevant to the present proceeding, is that s 80 and s 163A of the TP Act, insofar as those provisions authorise the making of applications for injunctive and declaratory relief were not invalid insofar as they purport to confer standing on an entity such as the present applicant to bring the proceeding. 25 The unsuccessful contention was that Chapter III of the Constitution was an exhaustive statement of the jurisdiction of the High Court and of other Federal Courts, so that the Commonwealth was not empowered to make laws which might extend the capacity of individuals or corporate entities to make application where there was no justiciable controversy except in the circumstances referred to, and of a general nature. 26 To state the nature of that case is to indicate why, in my view, it does not inform in any relevant way the resolution of the present issue. More particularly, I do not consider that it qualifies the jurisprudence which has developed around the meaning of the word "interests", or the scope of the word "interests", in s 84(5) of the NT Act. There was no issue in that particular proceeding as to whether it was in fact in the public interest to enable the appellant, or more generally an individual entity or person, to seek to enforce the performance of the statutory obligations imposed by the TP Act. It did not discuss in any detail the nature or circumstances in which an individual might or might not be permitted to bring such a proceeding under that Act. 27 Accordingly, I propose to apply the test expressed in Byron Bay, as applied in the other cases referred to. Before doing so, I note that there are circumstances in which a member of the native title claim group may be joined as a respondent party under s 84(5) of the NT Act. That was implicitly recognised in Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 at [26] where it was said: The power in s 84(5) is discretionary. It can be exercised to prevent a flood of individuals, as members of a communal group who claim to have native title rights and interests over all or part of a claim area and whose rights and interests may be affected by a determination, from becoming parties. In circumstances where there are a number of such individuals, it would not necessarily be the first such individual who would be the appropriate party. It will often be a matter for evidence as to whether any one individual has either a particular status or a particular perspective or particular circumstances which warrant that person's joinder as a party, including that person's status within the putative or competing claim group. It may be relevant to know the extent to which that person or persons has the support of, or is entitled to represent, the interests of the putative or competing claim group. No hard and fast rules can be laid down. In that case, one of a number of proposed respondent parties was joined because those respondent parties thought that their interests would be affected by the determination in the proceedings, and it was in the interests of justice that one rather than all of the individuals should be represented. See also Combined Dulabed Malenbarra/Yidinji Peoples v Queensland (2004) 139 FCR 96 at [45] per Spender J and Combined Dulabed and Malenbarra/Yidinji Peoples v Queensland (2004) 214 ALR 306 per Kiefel J at [12]. See also per French J (as his Honour then was) in Akiba & Others on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 2) (2006) 154 FCR 513 at [33]. In that case, French J concluded that the person seeking to be joined as a party did have an interest that may be affected by a determination in the proceedings, but in the exercise of his discretion he should not be joined as a party. 28 This application is not one in which individual members of the native title claim group, for the reasons of dissent or concern which they have expressed in their affidavits, are seeking to be joined as respondent parties. Nor is it one where a person or persons who claim to be members of a different native title claim group, having interests over some part of the claim area, seek to be joined as respondent to the claim. If any such application is made, it will need to be considered. (I note that, separately, by motion, Michael Laing has applied for an order that he be recognised as a member of the native title claim group and for other orders. That motion is shortly to be heard.) MCI is a step removed from such individual or collective interests. To the extent to which the material demonstrates that the interests of a particular subgroup of the native title claim group, or of some persons who are members of such a subgroup, may be affected by a determination in the proceedings, those persons who are members of the native title claim group, who assert that intramurally their interests are not being protected adequately (a matter which might be addressed following the establishment of an appropriate prescribed body corporate) or possibly because they are persons who assert that native title rights and interests over or in respect of some of the claim area presently the subject of the combined claim is, in fact, held by a limited or more confined claim group of which they are members. In either event, those persons might apply to be joined as respondents, although clearly they would not be given leave to be joined as a respondent without identifying clearly what status they claim. It is not appropriate to anticipate such an application, nor to finally determine whether those persons or some of them may have an interest recognised by s 84(5). 29 However, in my view, MCI does not itself have a sufficient interest for the purposes of s 84(5) to be joined as a respondent party to the present application. The objects of MCI as set out above do not include any basis upon which it, itself, could assert a direct entitlement to interests in the land or waters which constitute the present claim area. That is so whether one refers to those interests as native title rights and interests or other legal or equitable rights and interests in the claim area. Its constitution does not contemplate that it would hold any interests. Its purposes as described in its Rules are defined and discrete and their fulfilment will not be impeded by a determination of native title rights and interests. To the extent to which interests of its members may be affected by a determination, they are presently members of the native title claim group and they are not as individuals either collectively or individually seeking to be joined as respondents. Nor are they collectively or individually seeking to assert that the claim itself should not proceed (subject to any comments above). 30 In my view, MCI is simply intended to act as a mouthpiece for those whose interests arguably may be affected by a determination in the proceedings. It cannot convert that role into interests in the claim area which it itself asserts in terms of s 253, or s 84(5) of the NT Act. 31 I conclude that the particular ways in which the MCI asserts that its interests may be affected, when stated baldly, demonstrate that it does not have an interest or interests which will be affected by a determination in the proceedings. It will still be able to function. It will still be able to pursue its objectives. Its concerns about how the conduct of the claim presently being conducted is being pursued and managed are not interests which it itself has and which may be affected by a determination in the proceedings. As I have indicated, to the extent to which there may be such valid consensus (or interests) on the part of some or all of its members, they are the interests of those persons and not the interests of MCI. It may continue to protect and preserve Mirning culture, language and heritage. Such role as it is permitted under the Aboriginal Heritage Act 1988 (SA) is not impaired by the determination. It is not necessary to decide whether MCI itself is qualified to play a role under that Act. 32 For those reasons, in my judgment the application should be refused. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.