Sumner v State of South Australia

1. Ms Laura Agius and Mr Peter Rigney be removed from the persons who constitute the Applicant and that from now on the Applicant comprise the remaining persons listed as the current applicants.
2. The order sought by paragraph 2 of the interlocutory application lodged on 30 November 2017 is refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 I am dealing with an interlocutory application concerning the parties to the proceedings presently known as the Ngarrindjeri Part A Native Title Application and concerning its future designation. 2 Since the proceedings were commenced in 1998, some of the persons constituting the Applicant have died. On 14 September 2016 the Court made orders pursuant to s 66B(2) of the Native Title Act 1993 (Cth) (the NT Act) that the 20 persons who now comprise the Applicant replace the then current applicants. These 20 persons have continued to comprise the Applicant to the present time. 3 The application for determination of the native title in the area referred to as Ngarrindjeri Part A is now listed for a consent determination later this week, on 14 December 2017. On 6 December 2017, the Applicants filed an interlocutory application seeking two orders. First, that Mr Peter Rigney and Ms Laura Agius be removed from the persons constituting the Applicant and, secondly, that the proceedings be given the designation "Mathew Rigney and Others v State of South Australia and Others". 4 The first order is sought to give effect to a resolution passed by the Ngarrindjeri Native Title Claim Group at a meeting held on 9 November 2017. That resolution was: In SAD6027/1998, all persons acting as applicants who are deceased, namely Laura Agius, or who are in seriously poor health, namely Mr Peter Rigney, are no longer to be applicants for the application. 5 Section 66B(1)(a) of the NT Act provides that one or more members of a native title group may apply for an order that certain members of the group replace the current applicant on the grounds that persons have died or become incapacitated. The Applicants seek the first order pursuant to that provision. The affidavit of Mr Darrell Sumner made on 30 November 2017 indicates that Ms Laura Agius is deceased and that Mr Peter Rigney is in seriously poor health. It also indicates that the resolution of the native title group on 9 November 2017 was passed at a properly constituted meeting of the Ngarrindjeri Native Title Claim Group. 6 I am satisfied that it is appropriate to make the first order, and will make it. The effect of that order is that Mr Basil Sumner will become the lead Applicant. 7 The Applicants seek the second order as a means of honouring the late Mathew Rigney who died in 2011. He was the first chairperson of the Ngarrindjeri Native Title Management Committee, a highly respected member of the Ngarrindjeri and he worked actively to progress the native title claim. It is understandable that the Applicants wish to honour him. Mr Mathew Rigney was one of eight persons who were removed from the persons comprising the Applicant in the proceedings by the Court's order on 14 September 2016. 8 It is common for the Court to give native title proceedings a designation. The Court has a discretion to do that arising from the provisions in rr 2.13 and 34.130 of the Federal Court Rules 2011 (Cth). Generally, the designation which the Court has given has been a geographical name or a name referring in some way to the claim group. The present proceedings are an illustration of the Court's practice in that respect as they have been known as the Ngarrindjeri Native Title Claim. Since 27 July 2017, they have been known as Ngarrindjeri Part A and Ngarrindjeri Part B. 9 Although the Court is sympathetic to the Applicant's wish to honour the late Mr Mathew Rigney, it is not appropriate to do so in the manner they propose. First, the proceedings have now been known for a very long period as the Ngarrindjeri Native Title Claim, and there is the potential for confusion if there is a late change in the designation. 10 Secondly, the proposed designation would imply that Mr Mathew Rigney continues to be a member of the current Applicant group. Because of his death, it is not possible for Mr Mathew Rigney to constitute the Applicant. Ordinarily, the persons constituting an applicant in native title proceedings, as indeed in other proceedings in the Court, must be live persons. There are some exceptions to this. See, for example, Lennon v South Australia [2010] FCA 743; (2010) 217 FCR 438 and I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215. However, the present case is not one of those kinds. That being so, the use of the designation proposed by the Applicant has the potential to be misleading. 11 Thirdly, the designation proposed by the Applicant is of a different kind from those used in relation to other native title applications. 12 In those circumstances, although the Court is sympathetic to the Applicant's wish to honour the late Mr Mathew Rigney, it is not appropriate to make an order altering the designation currently given to the proceedings. Accordingly, the order sought by paragraph 2 of the interlocutory application lodged on 6 December 2017 is refused. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.