FEDERAL COURT OF AUSTRALIA
Dieri People v State of South Australia [2003] FCA 187
NATIVE TITLE – motion to dismiss application for native title determination – adequacy of description of persons on whose behalf application was made – applicant group a sub-group of larger native title claim group – consideration of authorisation by all persons in a native title claim group – whether leave to amend application should be given – whether application should be dismissed.
Native Title Act 1993 (Cth), ss 61, 62, 64, 66, 84C, 251B
Native Title Amendment Act 1998 (Cth), cl 21, cl 31
Native Title (Federal Court) Regulations 1998Quall v Risk [2001] FCA 378 applied
Daniel for the Ngaluma People v Western Australia [1999] FCA 686 cited
Eora People – Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 cited
Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 cited
Daniel v State of Western Australia [2002] FCA 1147 cited
Holborow v State of Western Australia [2002] FCA 1428 cited
State of Queensland v Hutchison (2001) 108 FCR 575 referred to
Bruce v Oldhams Press Ltd [1936] 1 KB 697 cited
Mitanis v Pioneer Concrete (Vic) Pty Ltd (Goldberg J, 10 October 1997, unreported) cited
State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499 referred to
Dieri People v State of South Australia [2000] FCA 1327 considered
Moran v Minister of Land & Water Conservation for New South Wales [1999] FCA 1637 referred to
Ward v State of Western Australia (1998) 159 ALR 483 referred to
Risk v National Native Title Tribunal [2000] FCA 1589 referred to
Tilmouth v Northern Territory of Australia (2001) 109 FCR 240 cited
De Rose v State of South Australia [2002] FCA 1342 referred to
Lawson v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 referred to
Korewal People - Longbottom v NSW Minister for Land and Water Conservation (No.2) (2000) FCA 1237 followedDIERI PEOPLE, ANGUS WARREN, LINDA WARREN, GRAHAM WARREN, RAELENE WARREN, GREGORY GRAHAM WARREN, PERCY TUCKER & RAYMOND WILLIAM BOLAND v STATE OF SOUTH AUSTRALIA & OTHERS
SG 66 OF 1998
MANSFIELD J
31 MARCH 2003
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 66 OF 1998
BETWEEN:
DIERI PEOPLE, ANGUS WARREN, LINDA WARREN, GRAHAM WARREN, RAELENE WARREN, GREGORY GRAHAM WARREN, PERCY TUCKER & RAYMOND WILLIAM BOLAND
APPLICANTSAND:
STATE OF SOUTH AUSTRALIA & OTHERS
RESPONDENTSJUDGE:
MANSFIELD J
DATE OF ORDER:
31 MARCH 2003
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 66 OF 1998
BETWEEN:
DIERI PEOPLE, ANGUS WARREN, LINDA WARREN, GRAHAM WARREN, RAELENE WARREN, GREGORY GRAHAM WARREN, PERCY TUCKER & RAYMOND WILLIAM BOLAND
APPLICANTSAND:
STATE OF SOUTH AUSTRALIA & OTHERS
RESPONDENT
JUDGE:
MANSFIELD J
DATE:
31 MARCH 2003
PLACE:
ADELAIDE
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- Case
- [2003] FCA 187
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the native title determination application, as potentially amended by the Particulars of Claim and the Further Particulars of Claim, met the statutory requirements for a valid application as prescribed by the NT Act. Specifically, the court examined whether the application correctly identified the native title claim group and whether it was properly authorised by all members of that group, as required by sections 61(1) and 61(4) of the NT Act. The evidence presented indicated that the application was made on behalf of a subgroup of the Dieri people, rather than the entire native title claim group, raising questions about the validity of the authorisation and the identification of the claim group.
The court's reasoning revealed that the native title determination application did not satisfy the statutory requirements. It was determined that the application claimed to be made on behalf of a subgroup of the Dieri people, whereas the native title claim group, as acknowledged by the applicants themselves, comprised a larger group of Dieri people. The authorisation granted to the applicants was found to be insufficient as it was given by a subgroup rather than the entire native title claim group, which contravened section 251B of the NT Act. Consequently, the application was dismissed for failing to meet the necessary statutory criteria.
Orders
Orders of the court
1. The application is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: MANSFIELD J
Ms Warren, in the course of her contentions in opposition to the motion, acknowledged the following:.the Dieri Mitha people accept that the native title determination application is made for the Dieri people;.the Dieri Mitha people agree that the Dieri people comprise a greater number of persons than the 87 persons named in the Further Particulars of Claim, and that it was not intended by listing those 87 persons to comprehensively and exclusively identify the native title claim group.CONSIDERATION(a) the Particulars of Claim and the Further Particulars of Claim Section 61(1) requires that the native title determination application be brought by persons authorised by all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed. Section 61(4) requires the native title determination application to name the persons, or otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular persons is one of the persons, who comprise the native title claim group. The authorisation to which s 61(1) refers must be in accordance with s 251B of the NT Act, namely authorisation by all the persons in a native title claim group. As French J said in Daniel at [11], it is of central importance to the conduct of native title determination applications and the exercise of the rights that flow from their registration, that those who bring such applications and who exercise such rights on behalf of a group of persons claiming to hold native title rights have the authority of the group to do so. See also per Wilcox J in Moran v Minister of Land & Water Conservation for New South Wales [1999] FCA 1637 at [48]. In Quall v Risk O’Loughlin J at [67] described the proper identification of the native title claim group as going to the heart of a native title determination application. I think each of those observations, with which I respectfully agree, is warranted by the clear words of s 61(1) and s 61(4) of the NT Act. In my view, the provisions of the NT Act do not permit the making of a claim by a native title determination application by a subgroup of the native title claim group, or the grant of native title to a subgroup of the real native title claim group: see Ward v State of Western Australia (1998) 159 ALR 483 at 541, Risk v National Native Title Tribunal [2000] FCA 1589 at [60], Tilmouth v Northern Territory of Australia (2001) 109 FCR 240. In my judgment, the native title determination application (treating it as amended by the Particulars of Claim and by the Further Particulars of Claim), does not satisfy the requirements of s 61(1) and s 61(4) of the NT Act. The native title claim group, that is the persons on whose behalf a grant of native title should be made if the native title determination application is successful, is the community of persons comprising the Dieri people. The acknowledgment of Ms Warren on behalf of the applicants in the native title determination application, and the evidence, indicate that the native title claim group as described in the native title determination application is not the same group of persons. It is a smaller group of some Dieri people whose application claims to be made on behalf of some Dieri people only. The smaller group, as expressed, is not the group of people who should exclusively enjoy the communal native title, yet that is the purport of the native title determination application. It is, I find, not the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprised in the particular native title claimed. In addition, as it is apparent that the authorisation granted to the present seven applicants was granted by a group of persons who are a smaller group than, albeit part of, the native title claim group, the necessary authorisation prescribed by s 251B of the NT Act was not given.