Kite v State of South Australia

Additional Evidence 7 Some number of affidavits were filed in support of the motion. Mr Kite filed a further affidavit. The following is drawn from this material. 8 (i) Mr Kite's claimant application appears to be another instalment in the disintegration of agreements struck at Spear Creek in South Australia in May 2004 which sought, it would seem, to resolve overlapping native title claims in parts of the State. In one such agreement - that between the Antakirinja People, the Antakirinja Land Management (Aboriginal Corporation) and the Kokatha Munta Native Title Claim Group - Mr Kite is described as a member of the Kokatha Munta claim group and his name and signature are given as signifying support for the agreement. His membership of that claim (which was later withdrawn) was founded, apparently, on the Kokatha ancestry of his mother, Mrs Gladys Kite. 9 (ii) The claimant application overlaps (inter alia) the Kokatha Native Title Claim. Mr Kite and his family have been involved in that claim; he is said by his sister to have represented his family on a management committee for the claim and continued to do so until an unspecified incident in February 2006. It is the case, though, that the Kite family does not fall within the current claim group description. 10 (iii) The Form 1 Application for the Antakirinja Matu-Yankunytjatjara Native Title Claim Group includes Gladys Kite and all her descendants. In his second affidavit he indicated he was not aware of that membership and at the hearing it was indicated steps would be taken to have him removed from it. His present claim overlaps that claim. 11 (iv) In his second affidavit Mr Kite acknowledges that all the members of his claim group were members of the extended family of his mother. He also indicated that the former Kokatha Munta claim was made on the basis of Kokatha ancestry and his mother, as earlier noted, was of Kokatha ancestry. He went on to say: "12. The present Southern Arunda Yunkunjatjara Nguraritja claim is not based upon Kokatha ancestry, but upon my father's and his father's ancestry and upon the paternal ancestry of the other members of the Southern Arunda Yunkunjatjara Nguraritja claim. … 18. Under my traditional law and culture, my father's father and his ancestors are the basis of my capacity to be one of the claimants in the Southern Arunda Yunkunjatjara Nguraritja claim. My capacity to make this claim, and the capacity of the other claimants, (apart from Adam Tunkin, to whom I refer in paragraphs 19 to 22) is through our paternal grandfather Bill Kite and his ancestors, more so than through my father or the other claimants' fathers. My father, Gilbert Kite, always used to say to me and to my brothers and sisters that he and his father and the ancestors before them were Southern Arunda people and that they had family connections as far north as to Hermannsburg in the Northern Territory." Mr Tunkin apart (see below), there is a handwritten genealogy in evidence which is accepted by Mr Kite. It indicates that while Bill Kite is Mr Kite's grandfather, he is the great-grandfather of the other members of the claim group. Mr Kite's father is the grandfather of two of the members (Luke Ayre and Marcus Moore). Mr Kite's brother is the grandfather of the third (Trevor Warrior). 12 (v) The fifth member of the claim group, Adam Tunkin is said by Mr Kite to be a member of the claim group on the basis that his father (Charlie) was a relative of his mother, Mrs Gladys Kite. He was adopted by Mrs Kite's father, "the same person who adopted her". Mr Tunkin's father, it is said was recognised as "nguraritja" for the area where he spent most of his life, this being a big part of the claim area. Mr Tunkin, who was born in the country where his father lived, is said by Mr Kite also to be "nguraritja for the claim area as a result of his father's status as nguraritja". I would interpolate that "nguraritja" is said in the State's submissions to be a Western Desert Bloc term for "land owner". 13 (vi) In para 23 of his second affidavit, Mr Kite stated (inter alia) that: "23. The other four claimants and I believe that we are the people who are qualified to make this claim for native title rights and interests in the country to which the claim applies as Nguraritjas of the country, by which we mean traditional custodians of the claimed land, for the following reasons: a. we are the descendants of grandfather Bill Kite, who was a man with extensive knowledge of traditional laws and customs and about where his country was and his relationship with that country; b. Bill Kite and his ancestors were traditional custodians of the claimed country from a time prior to white settlement of South Australia in 1825; c. we know and live by our traditional laws and customs; d. those traditional laws and customs deal with people's connections with country; e. our traditional laws and customs about country make it clear who can speak for country, what rights those people have in respect of the country and also what responsibilities they have; f. the people who can speak for the country are those who have been taught our traditional laws and customs and then, having learned them, have been willing to remember them and acknowledge that those traditional laws and customs are binding upon them. g. The other four claimants in the Southern Arunda Yunkunjatjara Nguraritja claim and I are the only descendants of grandfather Bill Kite and his ancestors who fit this description, today. h. My fellow claimants and I are certain of that fact because we know our extended family well, and through that knowledge we are aware that the other four claimants and I are the individuals who fall within the defining characteristics of those who have maintained traditional knowledge and observances, so as to be qualified to speak for our traditional country. i. The members of our extended family who have not learned and who do not now live by the traditional laws and customs of grandfather Bill Kite and his ancestors, so that they are not qualified to claim traditional country are, from my knowledge of the extended family, content that my fellow claimants and I hold the traditional knowledge and that we perform the traditional role of exercising the traditional claims upon, and responsibilities toward our grandfather's country. j. As we are required to do by our traditional laws and customs, my fellow claimants and I observe our traditional laws and customs, including in the ways in which they require us to recognise our traditional relationship to our country." 14 I should observe in passing that to the extent that the above-quoted paragraph asserts that Mr Tunkin is a descendant of Bill Kite with such consequences as ensued from that, it is inconsistent with what was earlier said of Mr Tunkin in the Kite affidavit which has been outlined above.

THE STATUTORY SETTING AND APPLICABLE PRINCIPLES 15 I recently have had the need to outline the principles applicable to a matter such as this: see Reid v State of South Australia [2007] FCA 1479 at [23]-[30]. The following, with some addition, is drawn from what I there said. 16 An application for a determination of native title under s 13(1)(a) of the Native Title Act can be brought in accordance with s 61(1) by (for present purposes): "A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; … Note 1: The person or persons will be the applicant: see subsection (2) of this section. Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group." (Original emphasis) 17 As Lindgren J commented in Harrington-Smith v State of Western Australia (No 9) [2007] FCA 31 at [72]: "The expression 'native title claim group' is defined in s 253 to mean, relevantly, the native title claim group mentioned in this passage. The expression is commonly and understandably used to refer to the group on whose behalf a native title determination application - claimant application is made. Indeed, Form 1, prescribed by para 5(1)(a) of the Native Title (Federal Court) Regulations 1998 (Cth), uses the expression in that sense, treating 'claimants' and members of the 'native title claim group' as synonymous. But there is no escaping the fact that the 'native title claim group', all of whose members are required by s 61(1) to authorise the applicant to apply, is a group constituted by all the actual holders, according to their traditional laws and customs, of the common or group rights or interests comprising the particular native title claimed."

18 I would note in passing that the indispensable nexus between traditional laws and customs and claimed native title rights and interests is made plain in s 223(1) of the Act which recognises "communal, group or individual rights and interests of Aboriginal peoples" in relation to land where "the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples" (emphasis added). 19 Section 61(4) provides that where a native title application is one authorised by a claim group the application must (a) name the persons constituting the group or (b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. 20 "Authorisation" for the purposes of s 61(1) is defined in s 251B as follows: "For the purposes of this Act, all the persons in a native title claim group … authorise a person or persons to make a native title determination 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 … must be complied with in relation to authorising things of that kind - the persons in the native title 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 … 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 … in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind." (Original emphasis)

21 It is well-accepted that "[t]he proper identification of the native title claim group is the central or focal issue of a native title determination application": Landers v State of South Australia (2003) 128 FCR 495 at [35]. It is that group which provides the authorisation under s 251B: see Harrington-Smith (No 9), at [1186] ff. It is in that group's favour that a determination, if successful, is made: ibid; see also Colbung v State of Western Australia [2003] FCA 774. 22 The requirements that the group be constituted by all the actual native title holders and that a determination, if successful, is to be made in their favour carry with them two consequences. The first is that a subset or part of what truly constitutes a native title group cannot itself be a claimant group under s 61(1): Risk v National Native Title Tribunal [2000] FCA 1589 at [60]-[61]; although in some, though by no means all, instances, there may be good reason for hesitation in readily concluding that an alleged group is only a sub-group or part of a group for s 84C purposes: see McKenzie v State of South Australia (2005) 214 ALR 214 at [41]. However, where a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area, that sub-group may itself constitute a native title claim group: see Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 at [60]. 23 I have noted above the tie between group membership and authorisation. Of the significance of authorisation I need do no more than gratefully adopt what was said by Lindgren J in Harrington-Smith (No 9) at [1171]-[1172]: "'Proper authorisation is the foundation for the institution and maintenance of a native title claimant application under s 61 of the new Act': Perry and Lloyd, Australian Native Title Law(Thomson Lawbook Co, 2003) at [3.140] p 439. Authorisation is 'fundamental to the legitimacy of native title determination applications', and is 'not a condition to be met by formulaic statements in or in support of applications': Stricklandat 259-260. Where the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales[1999] FCA 1637 at [48]; Stricklandat [56]-[57] (approved in WA v Stricklandat [77]-[78]); Drury v Western Australia(2000) 97 FCR 169 at [10]; Daniel v Western Australia(2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin Jat [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal[2000] FCA 1589 at [30]; Dieri People v South Australia(2003) 127 FCR 364 at [55] ('Dieri People'); Tilmouth v Northern Territory(2001) 109 FCR 240." 24 Finally I should note that s 84C(1) provides that, if an application does not comply with s 61, s 61A or s 62, a party to the proceedings may at any time apply to this Court to strike it out. All I need observe here is that the court's power should be exercised only where the claim as expressed is untenable upon the "version of the evidence" favourable to the respondent to the strike out: McKenzie, at [26]; Bodney v Bropho (2004) 140 FCR 77.

THE PRESENT MOTION - CONSIDERATION 25 The State has challenged Mr Kite's application on a broad front. As the claimant application is fatally flawed in a number of respects, I need only refer to four matters. Before doing so, I should indicate that, on its face, the application contains apparent contradictions, ambiguities and infelicities that would have required systematic address were I not to strike it out. I would merely instance (a) the assertion in Pt A2 of the Form 1 that the rights and interests claimed are "individual rights and interests": cf s 223 of the Act; (b) the general rights described do not accommodate the differing bases of the connection to the claim area of the four Kite descendant claimants and of Adam Tunkin: see Schedule F; and (c) the recognition that the rights and interests claimed are "non-exclusive": Schedule E; and that other Aboriginal people acknowledge apparently the same traditional laws and observe the same traditional customs in relation to the claim area: Schedule F. 26 The contradictions and ambiguities become the greater when one has regard to Mr Kite's evidence and the submissions made at the hearing. To illustrate this I would note the following. (i) While Schedule F to Form 1 suggests that the claim group members' status as native title holders is derived by means of ancestry in some manner, it was said by Mr Kite's counsel in oral submissions - and this is consistent with his second affidavit - that "Mr Kite's instructions to me have been adamantly and repeatedly: you claim through your grandfather". The grandfather relied upon for the purposes of the application is Bill Kite. Of the five claim group members, John Kite alone is the grandchild of Bill Kite. (ii) As I indicated above, the Schedule F description of native title rights and interests suggests on its face that Aboriginal peoples other than the claim group acknowledge the same traditional laws and observe the same customs in relation to the claim area. In response to the State's submission on Schedule F, Mr Kite has asserted in written submissions that: "[b]y acknowledging that there may be others with native title rights and interests in parts of the SAYN claim area the SAYN claimants are not inevitably asserting that they have failed to include all possible members of their claimant group in their claim. Rather, they are acknowledging that there may be others who hold native title rights and interests in the parts of the same country, but on the basis of different groups' laws, customs and traditions." I merely note that this is not what is said in Schedule F. Neither is there any evidence suggesting that there may be other native title holders observing different laws and customs in relation to the claim area or parts of it. 27 Turning to the matters of substance that need to be considered, the first two relate to the question whether the designated claim group constitutes the entirety of the possible native title group suggested by the application and evidence. These relate (i) to the inherently contradictory character of the claimant application itself as revealed in Schedule F ("the sub-group claim"); and (ii) to Mr Kite's conception of who is possessed of native title rights and interests ("the trust-like claim").

(i) The sub-group claim 28 As to Schedule F, the State has contended as I noted above, that on its face it reveals other people who could claim native title rights and interests under the same traditional laws and customs as the claim group. I have noted Mr Kite's response to this contention. That response may have suggested that the defect exposed by the State could be cured by an appropriate amendment under O 13 of the Federal Court Rules; and see the Note to s 84C(1) of the Act. Having regard, though, to the other deficiencies in the application the making of such an amendment would not save the application.

(ii) The "trust-like" claim 29 As to Mr Kite's conception of who is possessed of native title rights and interests, a more controversial question exists. As the genealogical evidence indicates, and as Mr Kite accepts, there are considerably more living descendants of Bill Kite than the claim group members. Yet Mr Kite asserts that the claimed native title rights are held by the claim group alone. In his written submissions he describes his case as follows: "In the present case Mr J G Kite on behalf of the Applicants says that he and the other 4 men named in the claim form the group who hold the relevant rights and he describes the wider community (the descendants of Bill Kite) who, with the 5 named claimants, have the benefit of those rights, although they are not, pursuant to traditional law, holders of the rights. Rather, the rights are held in the custody of the 5 named male claimants for the benefit of thew [sic] wider community of Bill Kite descendants." The submissions earlier had observed that "Mr Kite's affidavit does not assert that there are only 5 men who are entitled to enjoy the traditional rights described …; but it asserts that those rights are held by the 5 men named" (emphasis added). 30 While I would not wish to be taken as suggesting that the common law trust has any place in native title claims, I will for ease in exposition describe this claim as a "trust-like claim". The basis of the claim is that the five claim group members, as Nguraritjas, are the traditional custodians of the claimed land and alone are entitled to speak for it. The basis of the exclusion of the wider community of Bill Kite descendants is, to repeat what is said in his second affidavit, because: "[t]he members of our extended family who have not learned and who do not now live by the traditional laws and customs of grandfather Bill Kite and his ancestors, so that they are not qualified to claim traditional country are, from my knowledge of the extended family, content that my fellow claimants and I hold the traditional knowledge and that we perform the traditional role of exercising the traditional claims upon, and responsibilities toward our grandfather's country." (Emphasis added.) 31 In his written submissions a variant on who are the possessors of "knowledge" is introduced. It is observed: "In the present case Mr J G Kite is not saying that he and the other four claimants are the only ones knowledgeable of the rights; quite differently he is saying that he and the other four claimants are the individuals holding and having authority to commence the SAYN claim in respect of the rights, for the benefit of themselves and the wider community of descendants of Bill Kite and that man's ancestors." 32 The State's submission, put shortly, is that the native title rights and interests listed in Schedule F presuppose a wider claim group which includes at least female membership. No such membership is disclosed. It recognises ancestry (albeit in an uncertain way) as the author of the status as native title holder. There is a genealogy of descendants of Bill Kite. Yet these are not included in the claim group. I am in consequence asked to infer that the claimant group is simply a sub-group of the wider community of Bill Kite's descendants. 33 For my own part I consider the trust-like claim gives some reason for pause. The application and the accompanying evidence when considered most favourably to Mr Kite: see McKenzie at [26]; does suggest (subject to what is later said) that there is a basis for asserting the claim group members were, in accordance with traditional law and custom, authorised to make the claim (i.e. as Nguraritjas); that they were entitled to speak for the country; and that they had particular responsibilities in relation to the land claim. But the doubt it engenders is that these matters have had some part to play in contriving the claim group itself. That doubt is exaggerated by the not altogether satisfactory explanation given of the "rights" of the wider community of descendants of Bill Kite to enjoy or to have the benefits of the native title rights and interests claimed. Nonetheless, it is said on Mr Kite's behalf that the division between holding the claimed rights and interests on the one hand, and having the benefit or enjoyment of them on the other is a factual proposition that is not to be tested on the present motion. 34 In the end I consider that I am obliged to give Mr Kite the benefit of the doubts I have. I would, however, observe this much. I am not prepared to assume that the particular traditional laws and customs of an Aboriginal group cannot produce the type of internal relationship within a community such as is advanced in this claim. Nonetheless, I have some concern that in this matter the claim may well owe more to concepts drawn from common law conceptions of property than from traditional laws and customs. I refer in particular to the apparent equation here of the idea of being a "holder" of native title rights and interests with that of being the "owner" of those rights and interests. 35 The second two matters to which I need refer relate to the actual composition of the claim group itself and to the basis of its membership. I have foreshadowed both of these matters. The first relates to the members' relationship to Bill Kite; the second, to Adam Tunkin's membership of the group.

(iii) The grandfather relationship 36 All I need say here is that the application considered in light of Mr Kite's evidence and submissions hangs on descent from Bill Kite and the contention of Mr Kite (set out earlier) that "you claim through your grandfather". Mr Kite alone of the claim group is Bill Kite's grandchild. The application and the evidence simply do not address the status of the three other Kite descended claim group members by reference to their respective grandfathers (I leave out of consideration the question posed by Adam Tunkin's inclusion in the group). Mr Kite's affidavit simply proceeds on the incorrect assumption that all of the claim group members are Bill Kite's grandchildren. 37 When this error is coupled with the opaque ancestral basis upon which Schedule F states that the members of the claim group have acquired their status as native title holders, I am satisfied that the application itself does not reveal an intelligible basis upon which the claimants themselves each derive their claimant status by descent. Together the application and the evidence are embarrassing.

(iv) Adam Tunkin 38 I have foreshadowed the problem raised by Mr Tunkin's membership of the claim group. For present purposes I am prepared to accept that the Kite claim does not depend in any way on the members of the claim group being Kokatha people and deriving their rights as such. Rather it is founded upon descent from Bill Kite. Adam Tunkin is conceded not to be a descendant of Bill Kite. It must be said, though, that the affidavit purports to qualify Mr Tunkin on the basis of descent from Bill Kite. This cannot be. 39 The evidence concerning Adam Tunkin is that he was adopted by Mrs Gladys Kite's father. I put it to Mr Kite's counsel that Mr Tunkin appeared thus to have a Kokatha connection and, distinctly, that he could speak for the country. It was accepted that the affidavit evidence does not "expressly" take the matter any further than this. 40 It is clear from what was said for Mr Kite on the issue of sub-groups that there were other possible native title claimants observing different laws and customs with rights and interests in the land claims. The claim, I would note, does overlap the Kokatha Native Title Claim. 41 The best that can be said on the material before me is that while Mr Tunkin may be able to speak for the country, no satisfactory explanation for his membership of the claim group has been advanced. His presence simply reflects the confusion and disorder that attends so much of this application. It is, in the State's submission, arbitrary. Recognising the difficulties posed by the evidence concerning Mr Tunkin, Mr Kite's counsel acknowledged, though he did not concede, that Mr Tunkin might not "make the grade" in establishing claim group membership. It was suggested, nonetheless, that he could be excised from the claim group and that it proceed with the remaining four members. 42 I am satisfied that there is no acceptable explanation for Mr Tunkin's inclusion in the claim group consistent with the basis of the native title rights asserted in Schedule F or in para 23 of Mr Kite's second affidavit (reproduced in part earlier in these reasons). However, I am not prepared to consider giving leave to amend the application to excise his name from the claim group because, as I indicated earlier, the basis upon which the remaining group members (apart from Mr Kite) are asserted to be within the group in virtue of their relationship with their respective grandfathers (who are not Bill Kite) has not been adverted to at all in the material before me.

Other matters 43 The vices in the membership of the claim group carry over into the alleged authorisation of Mr Kite to bring the claim itself. I need say no more about this, other than to observe that this particular claim group is itself probably best described as self-identifying and self-authorising and is objectionable for those reasons: see Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [45]. The process of authorisation described in the affidavit accompanying the Form 1 suggests as much. 44 The State also raised subsidiary issues of non-compliance with procedural requirements imposed by s 61A and s 62. Given my conclusion as to the fate of the application itself, it is unnecessary that I deal with these.

CONCLUSION 45 I will order that the native title determination application (SAD 130 of 2007) be struck out under s 84C of the Native Title Act. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate: Dated: 2 November 2007 Counsel for the Applicant: Mr R Bower

Solicitor for the Respondent: Crown Solicitor for the State of SA