Dieri People v South Australia

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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 1998

Quall 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 followed

DIERI 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
APPLICANTS

AND:

STATE OF SOUTH AUSTRALIA & OTHERS
RESPONDENTS

JUDGE:

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
APPLICANTS

AND:

STATE OF SOUTH AUSTRALIA & OTHERS
RESPONDENT

JUDGE:

MANSFIELD J

DATE:

31 MARCH 2003

PLACE:

ADELAIDE

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Details
Case
[2003] FCA 187
Decision Date

CaseChat Overview and Summary

In the matter of Dieri People v South Australia, the parties involved were the Edward Landers Dieri people and the South Australian government, with the dispute centering on a native title determination application. The case was heard in the Federal Court of Australia, where the legal issues focused on whether the native title determination application met the statutory requirements for a valid application under the Native Title Act 1993 (NT Act). The application was scrutinised to determine if it correctly identified the native title claim group and if it was properly authorised by all members of that group.

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

However, lest I am wrong about the status of the Particulars of Claim and the Further Particulars of Claim, so that they should be treated as amendments to the native title determination application, I propose to determine also whether the native title determination application (assuming it to have been amended by those documents) meets the requirements for a valid application prescribed in the NT Act.THE EVIDENCE ON THE MOTION The Edward Landers Dieri people on the motion relied upon the affidavit of Steven Kenny affirmed on 8 July 2002 only to the extent to which it exhibited a report of Dr Deane Fergie of July 2002 entitled “Analysis of Dieri Group Composition” with reference to the Dieri Mitha and Ngayana Dieri Karna native title claim groups. The reference to the Ngayana Dieri Karna group is to the Edward Landers Dieri people. Within that document, reference was made only to limited material. Reference was made to pars 18-19 in the section of the report dealing with the informants upon which the genealogical information was, in part, based. Reference was also made to pars 28-29 (which did little more than identify the description of the native title claim group in the Edward Landers’ application). Reference was also made to par 91 referring to the apical ancestors known as Tim and Anna Merrick, and to a document entitled Figure 3, as a schematic representation only of descendants and members of the two claim groups. It shows some connections between all the apical ancestors in the Edward Landers application, but only a selection of their descendants. Figure 3 was also tendered together with the document which comprises Appendix 3, and which is detailed genealogical research, and the Dieri data base “Genealogy Reports” of the descendants of named apical ancestors in Schedule A of the Edward Landers Dieri people application. Dr Fergie’s evidence, introduced through the affidavit of Mr Kenny, was that each of the native title determination application and the Edward Landers application was made on behalf of the one native title claim group, namely the Dieri people. Indeed, the Edward Landers application is explicitly in those terms, save for it expressly excluding the Dieri Mitha people as the native title claim group in the native title determination application. I was told by senior counsel for the Edward Landers Dieri people that it was expressed that way for the pragmatic reason of avoiding any overlapping of claim groups, and to avoid the impediment to its registration which s 190C(3) might otherwise have produced. Ms Raelene Warren, one of the applicants in the native title determination application, who appeared for those applicants, did not gainsay that position. Dr Fergie was cross-examined, but her view that each application was in essence for all the Dieri people was not challenged. The cross-examination of Dr Fergie was largely directed to demonstrating that Dr Fergie had not properly consulted with representatives of the Dieri Mitha people in completing her genealogies, and that in some respects her genealogies may be erroneous either by excluding people who should be included, or by including people who should be excluded. The suggested errors did not concern each of the seven apical ancestors identified by Dr Fergie.

Decision

Reasons for decision

MANSFIELD J

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.