Hunter v State of South Australia

1. The application filed on 28 September 2015 is refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 The application in this matter for a determination of native title in favour of the Ngarrindjeri People was lodged on 23 June 1998. Some 18 years later, it remains unresolved. The applicants are 11 individuals who are represented by Mr Berg of Berg Lawyers. He has represented them since April 2009. 2 On 28 September 2015, Mr Mark Koolmatrie filed an application which is the subject of this decision. Mr Koolmatrie is not one of the 11 applicants and he does not have legal representation. His document is in two parts. The first part describes itself as a "notice of motion". The second part is an affidavit affirmed by Mr Koolmatrie. 3 By the "notice of motion", Mr Koolmatrie seeks the following orders: 1. Mark Koolmatrie and the Tribal Council of Elders of the Coorong, Lower Lakes and the Sea pursue the strike out of the Ngarrindjeri and Ors. Native Title claim (No SAD6027 of 1998) and their claim is to be dismissed as they have been negligent in not meeting with all those on their claim including the apical ancestors of those on their claim (see Att 'A'). 2. That the Ngarrindjeri and Ors. Native Title claim (SAD6027 of 1998) and Mark Koolmatrie and the Tribal Council of Elders of the Coorong, Lower Lakes and the Sea claim is progressed to a trial with a full hearing of oral evidence of those of the Ngarrindjeri and Ors. Native Title claim (SAD6027 of 1998) as opposed to affidavit evidence. 3. That Mr Berg is dismissed from representing the Ngarrindjeri and Ors. Native Title claim (No. SAD6027 of 1998) due to his failure to follow the Court's orders. 4. An injunction is granted to prevent the Ngarrindjeri and Ors. Native Title claim (SAD6027 of 1998) acting in the future over the lands, water and air of the area of the claim until the determination of Native Title is concluded. 5. The Ngarrindjeri and Ors. Native Title claim (No. SAD6027 of 1998) produces their genealogy and linage (sic) to the claimed area. 4 As can be seen, the application indicates that it is made by Mr Koolmatrie and the Tribal Council of Elders of the Coorong, Lower Lakes and the Sea (the Tribal Council). The evidence did not disclose the details of the Tribal Council but Mr Koolmatrie informed the Court that it was an unincorporated group of about 20-24 elders who "represent the Original People of the area". In an affidavit made on 3 June 2016, Mr Koolmatrie deposed that he is "authorised" to bring the application on behalf of the Tribal Council. 5 On 16 October 2015, the Court ordered that South Australian Native Title Services (SANTS) convene a meeting of the applicants (through Mr Berg) and Mr Koolmatrie and those he represents to discuss the matters of concern. SANTS was also directed to provide a report to the Court at least three weeks before the callover of the South Australian Native Title matters on 22 March 2016. Mr Koolmatrie was directed to provide at least seven days before the callover notice to the Court and to the parties of the precise orders, if any, he would pursue and any further evidence on which he would rely. 6 Although the evidence indicates that two meetings of the kind contemplated by the Court's orders did occur, neither SANTS nor Mr Koolmatrie complied with orders requiring the provision of a report, notice and the filing of any further evidence. 7 In those circumstances, the Court listed Mr Koolmatrie's application for hearing on 23 June 2016 and made orders for the filing of affidavits by Mr Koolmatrie and by any party in opposition. Mr Koolmatrie filed further affidavits on 15 April 2016 and 3 June 2016. The applicants filed an affidavit from one of their number, Mr Darrell Sumner, on 30 May 2016. 8 The application of 28 September 2015 is not the first in this action made by Mr Koolmatrie and the Tribal Council. In 2013 and 2014, they made applications as follows: (1) 17 October 2013: An application seeking orders that the Ngarrindjeri Native Title Claim be struck out; alternatively, that the Ngarrindjeri Native Title claimants establish connection to country; alternatively, that the claimants prove "lineage" (ie, genealogy); alternatively, that Mr Koolmatrie and that the Tribal Council be joined as respondents to the Ngarrindjeri Native Title Claim; (2) 6 December 2013: An application that the Ngarrindjeri Native Title Claim be struck out, alternatively, for orders requiring the claimants to establish the matters that would need to be established under ss 223 and 225 of the Native Title Act 1993 (Cth) (the NT Act) as on a final hearing of the claim for a determination under s 61; (3) 23 January 2014: An application again seeking orders that the Ngarrindjeri Native Title Claim be struck out, or for an interlocutory hearing of the same sorts of issues on that claim. 9 These applications were refused by Mansfield J: Sumner v State of South Australia [2014] FCA 534. At the same time, Mansfield J indicated that the Ngarrindjeri Native Title Claim should continue in the normal manner, at [4]. 10 Mansfield J dismissed the three applications brought by Mr Koolmatrie and the Tribal Council for the following reasons: (a) Mr Koolmatrie had no standing to bring the three applications because he is not a party to the Ngarrindjeri Native Title Claim, at [5], [31]; (b) Mr Koolmatrie sought to impugn the authority of the Australian Parliament and, by implication, the jurisdiction of the Federal Court to determine applications for native title and thereby the Ngarrindjeri Native Title Claim itself. His submissions on these topics mirrored those which had previously been rejected by the Court in Walker v State of South Australia (No 2) [2013] FCA 700; (2013) 215 FCR 254 and, accordingly, were rejected for the same reasons, at [8]; (c) the Tribal Council did not have the kind of direct interest capable of being affected by a determination of native title and so could not be joined as a party, at [11]-[14], citing Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 at 7, 8; Davis-Hurst v Minister for Land and Water Conservation (NSW) [2003] FCA 541, (2003) 198 ALR 315 at [5]-[7]; Burunga v State of Western Australia (No 2) [2011] FCA 755 at [165]; Chippendale on behalf of the Wuthathi People # 2 v State of Queensland [2012] FCA 310 at [14]; Far West Coast Native Title Claim v State of South Australia (No 2) [2012] FCA 733, (2012) 204 FCR 542 at [37]; and Far West Coast Native Claim v State of South Australia [2011] FCA 24, (2011) 191 FCR 381 at [23], [29]-[30]. Accordingly the Tribal Council was not an entity which could be joined to the Ngarrindjeri claim; (d) the evidence relied upon by Mr Koolmatrie did not provide an arguable factual foundation for him having a general interest as a member of, and as the representative of, a competing claim group whose interests may be demonstrably affected by the determination of the Ngarrindjeri claim, at [20]-[26]; (e) the evidence provided by Mr Koolmatrie did not support his joinder on the alternative basis that he is a dissentient member of the Ngarrindjeri Native Title Claim group, at [27]; (f) discretionary considerations also pointed against the joinder of Mr Koolmatrie pursuant to s 84(5) of the NT Act, at [28]-[31]; (g) Mr Koolmatrie had not demonstrated standing to bring an application pursuant to s 84D of the NT Act, at [32]; (h) it was inappropriate to require the Ngarrindjeri Native Title claimants to present, as if at trial or on a trial of a separate issue, the evidence to prove their connection to the claimed area or the "lineage" or genealogy asserted, at [33]. 11 The applicants contended that the present application of Mr Koolmatrie and of the Tribal Council is an abuse of the Court's process because it failed to "disclose a reasonable cause of action appropriate to the nature of the proceeding" and because "the applications are substantially the same as the applications made on 17 October 2013, 6 December 2013 and 23 January 2014". The applicants referred in this respect to rr 16.21(e) and 16.21(f) respectively of the Federal Court Rules 2011 (Cth). 12 Rule 16.21 has no application in the present instance. Its subject matter is the striking out of pleadings. The Court is not being asked to consider presently whether or not a pleading discloses a reasonable cause of action. Further, with one exception, the applications of Mr Koolmatrie and the Tribal Council are not a repetition of the applications previously determined by Mansfield J. The exception is the fifth order sought, namely an order that the Ngarrindjeri Native Title claimants produce their "genealogy and linage (sic)" to the claimed area. As already noted, Mansfield J rejected a previous application of a like kind, at least to the extent that Mr Koolmatrie and the Tribal Council sought a form of preliminary determination of the genealogy and lineage of the Ngarrindjeri Native Title Claim applicants. 13 Nevertheless, I consider that the applications of Mr Koolmatrie and the Tribal Council should be refused, for a number of reasons. 14 First, neither Mr Koolmatrie nor the Tribal Council have standing to bring their application. It is sufficient to adopt, without repeating, the reasons of Mansfield J in Sumner on this topic. Further, Mr Koolmatrie did not provide any additional evidence demonstrating the requisite standing. The affidavit forming the second part of the document filed on 28 September 2015, stated only: I affirm this affidavit dated September 28 2015 in support of SAD6027 of 1998 and affirm on Monday 28th day of September 2015: (a) That Mr Berg and the Ngarrindjeri and Ors. Native Title Claim (No SAD6027 of 1998) are dismissed immediately and a new claim is supported. (b) That all information of Ngarrindjeri and Ors. Native Title Claim (No SAD6027 of 1998) and that of Mark Koolmatrie and the Tribal Council of Elders of the Coorong, Lower Lakes and the Sea claim is progressed to trial with a full hearing of oral evidence as opposed to affidavit evidence. If they the Ngarrindjeri and Ors. (No SAD6027 of 1998) are true people of country they should be able to speak on and/or for country. 15 Mr Koolmatrie then "attached" the text of an email he had sent to Mr Berg on 20 July 2015: On behalf of the Tribal Owners of the Coorong, Lower Lakes, River Murray and the Sea Inc and the Tribal Elders Council of Southern SA we seek a meeting with members of your clients that being the Ngarrindjeri Native Title Claim SAD6027 of 1998 to resolve some of the differences and hopefully develop a resolution plan for the betterment of our area that being especially the Coorong and Lower Lakes and Lower River Murray of Southern South Australia. It was our understanding that SANTS wants to convene such a meeting with them chairing. As of today that being 20/07/2015 they have not done so despite many requests by us the Tribes of Southern SA. Can we please arrange this to happen at both your clients and our convenience. Mark Koolmatrie Spokesperson and Original person. 16 As can be seen, with the exception of the "attachment", this affidavit did not provide evidence. Instead, it was a repetition of part of the application made in the "notice of motion", in part a rearticulation of it, and in part a further claim. Although the email of 20 July 2015 indicated that a request for a meeting had been made, the evidence did not indicate that such a meeting had been refused. Fundamentally, Mr Koolmatrie's affidavit did not provide an evidential foundation for the making of any of the orders sought by Mr Koolmatrie. 17 Subject to one qualification, Mr Koolmatrie's affidavit of 15 April 2016 did not remedy this shortcoming. Paragraphs 2 to 4 inclusive are, in substance, a repetition of the statement of the orders sought by Mr Koolmatrie and the Tribal Council and not a statement of evidence. 18 Paragraph 5 seeks an order as follows: The Kungan Ngarrindjeri Yunnan agreement and the Ngarrindjeri Regional Authority are dismissed due to only servicing a minority of our community. Mr Koolmatrie does not depose to any matters indicating that this Court has jurisdiction with respect to the subject matter of paragraph 5, let alone an evidential foundation for the order which he seeks. 19 Paragraphs 6 to 9 inclusive contain a number of "requests". These are requests that a number of the applicants and other persons be subpoenaed to give evidence at the hearing of the application filed on 28 September 2015, for the production of minutes of meetings, for the provision of lists of names of members of various groups within, or associated with, the Ngarrindjeri and for an order that questions put to Mr Berg be answered. Mr Koolmatrie does not depose to any matters indicating that it would be appropriate for the Court, even if it does have jurisdiction to do so in all respects, to make orders with respect to any of these requests, let alone that he or the Tribal Council have standing to make the requests. 20 Paragraph 1 of the affidavit of 15 April 2016 which I have passed over is the basis for the qualification to which I referred earlier. It provides as follows: MARK KOOLMATRIE AND THE TRIBAL COUNCIL OF ELDERS OF THE COORONG, LOWER LAKES AND THE SEA pursue the strike out of the Ngarrindjeri and Ors. Native title claim (No.SAD6027 of 1998) as they were negligent to answer any of the questions put to Mr Berg on December 14 2015 and 4 February 2016 at SANTS office Adelaide and with his clients 19 February 2016 including Marshall Carter representing Ngarrindjeri Native Title Claim, Ben Roberts, Gay Jackson, Donald Roberts and Eric Richards representing Laura Agius (Ngarrindjeri Native Title Claim), Eunice Aston representing Ngarrindjeri Regional Authority, Laurie Rankine representing Ngarrindjeri Regional Authority and Victor Wilson and Steven Sumner representing the community as per orders of Mansfield J. 21 As can be seen, it is implicit in this paragraph that Mr Koolmatrie accepts that SANTS did convene a meeting of the kind ordered by Mansfield J on 16 October 2015, and that more than one meeting occurred. Mr Koolmatrie's complaint is that certain questions which were apparently put to Mr Berg at those meetings were not answered to his satisfaction. Those questions are not identified. Mr Koolmatrie does not provide any further evidential basis upon which the Court could conclude that there had not been compliance by the applicants through their lawyer, Mr Berg, with the orders of Mansfield J with respect to the conduct of the meeting he ordered. Further, and in any event, Mr Koolmatrie does not provide an evidential basis upon which the Court could conclude that it is appropriate for the longstanding claim of the Ngarrindjeri Native Title claimants to be struck out or for the other orders to be made. 22 Secondly, a number of the submissions of Mr Koolmatrie (both written and oral) indicate that he and others have some concerns about a number of matters touching on the affairs of the Ngarrindjeri, both in relation to the present application and more generally. He said, for example, that the Tribal Elders are concerned that the process towards a consent determination be fair, that everyone is represented, and that there be proper discussions within the Ngarrindjeri about these matters. The Court does not express any view, one way or the other, as to whether there is a basis for these concerns. What is apparent is that the present proceedings do not provide the vehicle by which the concerns are to be ventilated or pursued. It is doubtful that the Court has the jurisdiction to make orders which would address some of the concerns in any event. Mr Koolmatrie also acknowledged that this Court does not have jurisdiction with respect to some of the matters which he has raised and that, if he is to pursue them, it will have to be in other forums. Those concessions were appropriate. In short, this Court does not have jurisdiction in respect of some of the matters raised by Mr Koolmatrie, and the present proceedings do not provide an appropriate vehicle for the resolution of others. 23 Thirdly, in his affidavit, Mr Sumner deposed that he had instructed Mr Berg to call a community meeting of the Ngarrindjeri and Others Native Title Claim group for the purpose of updating members in relation to the progress of the claim and to add new persons to the Native Title Claim Management Committee. The Court was told that this meeting is to occur at Murray Bridge on 10 July 2016. The holding of the meeting has been advertised and Mr Koolmatrie is aware of it. He acknowledged that the meeting will provide him and others with the opportunity to raise their concerns and to ask questions of the applicants. It is probable that many of the concerns of Mr Koolmatrie and the Tribal Council can be raised at that meeting. This counts against an exercise of discretion in Mr Koolmatrie's favour, even if it was otherwise enlivened. 24 Fourthly, it is not open to this Court to make the order sought in paragraph 3 of Mr Koolmatrie's application, namely, an order that Mr Berg be precluded from representing the applicants in the proceedings. 25 Fifthly, I reject the claim that the applicants produce now their evidence of genealogy and lineage, for the same reasons given by Mansfield J in relation to Mr Koolmatrie's previous applications. 26 Finally, even if the Court's discretion was otherwise properly enlivened, it would not be appropriate to exercise it in the manner for which Mr Koolmatrie contends. It would be a major step for the Court to dismiss the applicants' claim, some 18 years after its commencement. That is particularly so as the parties have repeatedly informed the Court that they are working towards a consent determination and have carried out substantial work to that end. The Court should not readily bring about a circumstance in which that work is wasted. Similar considerations apply in relation to the other aspects of Mr Koolmatrie's application. 27 In summary, I am satisfied that neither Mr Koolmatrie nor the Tribal Council have standing to bring the present application; that even if they do, some of the orders which they seek are not within the Court's jurisdiction; and that, in any event, Mr Koolmatrie has not provided evidence showing a proper evidential foundation for the making of any of the orders which he seeks. Discretionary considerations also point against the grant of the application. 28 For these reasons, the application filed on 28 September 2015 is refused. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.