McKenzie v South Australia

Case [2005] FCA 22

FEDERAL COURT OF AUSTRALIA

McKenzie v State Government of South Australia & Ors [2005] FCA 22

NATIVE TITLE – application to strike out native title claim under s 84C of the Native Title Act 1993 (Cth) or dismissed under O 20 r 2 of the Federal Court Rules – whether amendments to claim after 1998 resulted in substance in a fresh application such that the Act as amended by the Native Title Amendment Act 1998 applies – principles applicable to transitional provisions

NATIVE TITLE – s 61 – whether claim properly identifies the native title claim group – list of group members inaccurate and incomplete – whether method of listing founded on ascertainable principles or criteria

NATIVE TITLE – s 62 – authorisation ascribed to various disparate sources that predated fresh application and subsequent amended applications – whether applicant authorised by all the persons in the native title claim group

EVIDENCE – s 135 of Evidence Act 1995 (Cth) – whether transcript of preservation evidence could be tendered

Native Title Act 1993 (Cth) ss 61, 62, 84C, 86, 190A, 251B, 253
Native Title Amendment Act 1988 (Cth) sch 5 cl 21
Evidence Act 1995 (Cth) s 135

Bodney v Bropho [2004] FCAFC 226 cited
Landers v State of South Australia (2003) 28 FCR 495 cited
Williams v Grant [2004] FCAFC 178 cited
General Steel Industries Inc v Commission for Railways (NSW) (1964) 112 CLR 125 cited
Wharton v State of Queensland [2003] FCA 1398 cited
Briggs v Minister for Lands for the State of NSW (2004) 209 ALR 75 cited
Branfield v Wharton [2004] FCAFC 138 cited
Quall v Risk [2001] FCA 378 cited
Dieri People v State of South Australia [2003] FCA 187 cited
Strickland v Native Title Registrar (1999) 168 ALR 242 cited
Risk v National Native Title Tribunal [2000] FCA 1589 cited
Colbung v The State of Western Australia [2003] FCA 774 cited

Perry and Lloyd, Australian Native Title Law, 2003
Ford and Lee, Principles of the Law of Trusts

MARK McKENZIE v STATE GOVERNMENT OF SOUTH AUSTRALIA & ORS

No S 6004 of 1998

FINN J
ADELAIDE
27 JANUARY 2005

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 6004 OF 1998

BETWEEN:

MARK McKENZIE
APPLICANT

AND:

STATE GOVERNMENT OF SOUTH AUSTRALIA & ORS
RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

27 JANUARY 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The native title determination application be struck out.

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

S 6004 OF 1998

BETWEEN:

MARK McKENZIE
APPLICANT

AND:

STATE GOVERNMENT OF SOUTH AUSTRALIA & ORS
RESPONDENT

JUDGE:

FINN J

DATE:

27 JANUARY 2005

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

  1. The Aboriginal Legal Rights Movement (“the ALRM”) has applied to have the Kuyani native title determination application (“the Kuyani claim”) struck out under s 84C(1) of the Native Title Act 1993 (Cth) (“the Act”) or else dismissed…

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AGLC
McKenzie v South Australia [2005] FCA 22
Case
[2005] FCA 22
Decision Date

CaseChat Overview and Summary

The case of McKenzie v South Australia involved a dispute over the validity of a native title claim made by Mr. McKenzie on behalf of the Kuyani people. The Federal Court of Australia was tasked with determining whether the amended claim should be dealt with under the provisions of the Native Title Act 1993 (Cth) as it stood before the Native Title Amendment Act 1998 (Cth) ("Old Act") or whether it should be considered a new application under the amended Act ("New Act"). The court was also required to decide whether the claim complied with the requirements of sections 61 and 62 of the Native Title Act 1993 (Cth).

The court found that the substantial changes made to the Kuyani claim, including alterations to the named applicant, the composition of the claim group, and the lands subject to the claim, indicated that the matter should be determined under the New Act. The court held that the native title claim group had not been adequately identified or described, and Mr. McKenzie had not provided an adequate statement outlining the basis on which he was authorised to make the claim on behalf of all the persons in the claim group. As a result, the court concluded that Mr. McKenzie had not satisfied the requirements of sections 61(4) and 62(1)(iv) and (v) of the Native Title Act 1993 (Cth).

Given the significant changes to the claim and the lack of compliance with the statutory requirements, the court decided that it would not be appropriate to grant a further opportunity to amend the application. The court held that the proper course was for the members of the native title claim group to consider whether they wished to adopt a new application. Consequently, the court ordered that the native title determination application be struck out.

This decision highlights the importance of adhering to the statutory requirements when making a native title claim and the court's willingness to strike out an application if it is not in compliance with the necessary provisions.

Orders

Orders of the court

1. The native title determination application be struck out.

Background

Background to the litigation

The six amendments to the Kuyani claim have substantially altered its character. These amendments have altered the named applicant, the composition of the claim group and the lands the subject of the claim itself. A distinct but later Kuyani claim in respect of other land has also been combined with this claim. The effect of these alterations, as will be seen, has brought into contention whether the s 84C application should properly still be dealt with as an “Old Act” application or whether the changes have been such as to produce what is in substance a fresh application under the “New Act”. The Old Act/New Act distinction refers to whether the provisions of the Act as they stood prior to (“Old Act”), or alternatively subsequent to (“New Act”), the Native Title Amendment Act 1998 (Cth) (“the 1998 Amending Act”) should be applied in the present application. My own view is that such was the character of changes made to the claim after 1998 that the matter falls to be determined under the New Act and applying the provisions of that Act the amended claim ought be struck out. The native title claim group has not adequately been identified or described. Nor has Mr McKenzie provided an adequate statement in his affidavit outlining the basis on which he was authorised to make the claim by all the persons in the native title claim group.BACKGROUND1. The Evolving Claims The 1995 Kuyani claim was made by a body corporate called the Kuyani Association Incorporated (“the Association”). It is necessary to refer in a little detail to this body because of its significance to the present application. Though the evidence about the Association and its operations is slender, it appears it was registered in 1990. Its objects are reflected in the following illustrations taken from a version of its Constitution put in evidence by the ALRM:“(a)To establish, promote, operate and co-ordinate services and facilities and enterprises for the advancement, training and wellbeing of the Kujani people. …(e)To ascertain the wishes of, and provide a mechanism for the expression of community opinion including such matters as land use, land rights and land ownership and to represent such views and interests to the relevant government, public and community bodies.”Membership was open to Aboriginal people of the Kuyani tribe and (within limits) to persons who have descended from the Tribe. Membership was conferred by the decision of a membership committee and a membership fee was to be paid. The Constitution, which reflected the commonplace for incorporated associations, made provision for the establishment of a Committee of Management to be elected at the annual general meeting. Returning to the 1995 claim, the Association described the claimant group as encompassing 14 “principal families”. The description went on to note:“The Kujani people have formed an incorporated body to represent their interests and this organisation has completed a Community Development Plan part of which enabled the Kujani to precisely identify all the people associated with this claim.”It then made reference to a supposed tribe called the “Adnyamuthna” (this name has various spellings) and commented:“Adnyamuthna are merely a local suburb, as it were, of Kujani as will be demonstrated by the genealogical information that will be provided in due course.”The Adnyamuthna, whose own native title determination claim was wholly overlapped by the Association’s larger claim, played a significant role in the events leading to the present application and to Mr McKenzie’s defence of it. The area encompassed in the Association’s claim application was provided in an accompanying map, which is signed by a number of Kuyani, not all of whom can be identified from their signatures. The area claimed extended (with certain exclusions):“From Peterborough in the south to Parachilna the north of Marree on west side of Flinders Ranges; northeast to Murnpeowie, around north end of Lake Torrens west to Turret Range and Andamooka.”As compared with the current claim area, the original claim area included land covered by the Adnyamuthna claim but excluded parts of the present claim around Lake Eyre south and all of Lake Torrens.

Evidence

Evidence Before The Court

I will order that the native title determination application be struck out. A RULING ON EVIDENCE The ALRM sought on the hearing of this application to tender under s 86 of the Native Title Act, the transcript of preservation evidence taken by me at Port Augusta on 25 to 28 October 2004. I refused the tender and indicated that I would provide reasons for my refusal. These are those reasons. The tender was refused under s 135 of the Evidence Act 1995 (Cth) because I considered it would be unfairly prejudicial to Mr McKenzie. At the preservation hearing, which occurred after the filing of the s 84C strike out application, objection was taken by Mr McKenzie’s counsel, Mr McIntyre QC, to a line of questioning of Mr McKenzie which seemed reasonably and understandably to relate directly to the strike out application. Mr Maurice QC for the ALRM disclaimed that such was his purpose. Mr McIntyre withdrew his objection but, as he said in relation to the tender, he conducted his re-examination in a quite different way in light of what Mr Maurice said. This was apparent from the re-examination itself and I accept what Mr McIntyre has said. I am in consequence satisfied that there would have been prejudice suffered if the tender was allowed. More importantly, as I indicated at the preservation hearing, the evidence was there taken in a contextual vacuum. There was no issue being determined, no other evidence being put to support, contradict, or qualify what was being said by Mr McKenzie. In my view it would be quite unfair to use that evidence for the purposes the ALRM now proposes. I am not obliged under s 86 of the Native Title Act to admit the evidence. In light of the above considerations, I am satisfied I should not admit it.

Decision

Reasons for decision

FINN J
Thirdly, the Declaration asserts that Mr McKenzie is authorised by the “Kuyani native title claim group” to make the claim but does not reveal in any way the basis on which he was authorised by all the persons in the group to make that claim: cf s 62(1)(v) of the Act. Moreover, while the Declaration partially describes bases and a process by which persons’ names were put on the list making up the claim group (including, I would note, self selection), it does not provide a sufficiently clear description of the 20 October 2004 claim group which, as has already been noted, is inaccurately described in any event. Its concern was only with the 22 December group. In successive amended applications that group underwent mutations. The descriptions given in the Declaration provide no principled explanation for this phenomenon which could satisfy the Act’s requirement that the persons in the claim group are described sufficiently clearly so that it can be ascertained whether any particular person is one of those persons: s 61(4)(b).CONCLUSION There is, in my view, no arguable basis upon which Mr McKenzie can be said to have satisfied the requirements of s 61(4) and s 62(1)(iv) and (v) of the Act. The case is not one in which a further opportunity to amend should be given. The time for indulgence has long since passed. The history of the matter, particularly since the filing of the s 84C application and the amendments made thereafter, provides no grounds for reassurance that the application’s flaws can be cured. What would be required would be a new application. The proper course, in my view, is for the members of the native title claim group to consider whether that is a course they wish to adopt. I will order that the native title determination application be struck out. A RULING ON EVIDENCE The ALRM sought on the hearing of this application to tender under s 86 of the Native Title Act, the transcript of preservation evidence taken by me at Port Augusta on 25 to 28 October 2004. I refused the tender and indicated that I would provide reasons for my refusal. These are those reasons. The tender was refused under s 135 of the Evidence Act 1995 (Cth) because I considered it would be unfairly prejudicial to Mr McKenzie. At the preservation hearing, which occurred after the filing of the s 84C strike out application, objection was taken by Mr McKenzie’s counsel, Mr McIntyre QC, to a line of questioning of Mr McKenzie which seemed reasonably and understandably to relate directly to the strike out application. Mr Maurice QC for the ALRM disclaimed that such was his purpose. Mr McIntyre withdrew his objection but, as he said in relation to the tender, he conducted his re-examination in a quite different way in light of what Mr Maurice said. This was apparent from the re-examination itself and I accept what Mr McIntyre has said. I am in consequence satisfied that there would have been prejudice suffered if the tender was allowed. More importantly, as I indicated at the preservation hearing, the evidence was there taken in a contextual vacuum. There was no issue being determined, no other evidence being put to support, contradict, or qualify what was being said by Mr McKenzie. In my view it would be quite unfair to use that evidence for the purposes the ALRM now proposes. I am not obliged under s 86 of the Native Title Act to admit the evidence. In light of the above considerations, I am satisfied I should not admit it.

Ratio Decidendi

Legal Principle Established

Established by: FINN J

Given the view I take of the nature of the amendments made in this case from December 2000, it is unnecessary that I enlarge upon this controversy. It has been rehearsed at some length in Wharton, Branfield, Bodney and Briggs. Suffice it to say for present purposes is that I agree with the view expressed by Emmett J in Wharton that was summarised and adopted by Moore J in Briggs (at [28]) that:“Section 84C directs attention to s 61 of the old Act in relation to an application made under that Act unless the application has been amended and the application as amended can fairly be characterised as a fresh application.”See also Bodney v Bropho at [84]-[85] per Stone J.CONSIDERATION1. Old Act/New Act It is abundantly clear from the MOU, the amended applications on and from 22 December 2000, Mr McKenzie’s declaration of 7 August 2001 and his affidavit of 3 December 2004, that the application from 2000 (i) involved claim groups of a quite different character from those described in the 1995 claim and the 1998 amendment; and (ii) related to a significantly altered claim area. As the affidavit and declaration acknowledge – though this is not disclosed in the post 2000 amended applications – after the MOU was agreed many of the people included in the old application register of claimants “did not wish to make a claim to the [remaining] Kuyani claim area”. To the extent that there is now any criteria apparent on the evidence which appears to unite the presently named members of the claimant group, the Declaration would suggest that one at least is that the claimants are a discrete group of Kuyani, i.e. those who claim an interest in the claim area. I note in passing that the basis upon which some only can so choose to make such a claim is not revealed, nor did Mr McIntyre QC for Mr McKenzie suggest to the contrary. That one group of Kuyani can so distinguish itself by reference to the claim area from those other Kuyani who are only members of the Adnyamuthna claim group indicates why the amendment made to the claim area in December 2000 was itself a change of real significance. There was in substance a fresh application made in 2000. It involved no mere further particularisation of the claim group and the claim area: cf Bodney, at [85]. I am in consequence satisfied that the s 84C strike out application is to be determined by reference to the New Act provisions. This conclusion makes it unnecessary for me to – and I do not – express any view on an alternative submission put forward by the State of South Australia. It was to the effect that, when the Old Act application (SC95/4) was combined with the New Act claim (SC00/02) by order of this Court on 22 December 2000, the resultant combined claim could not be regarded simply as an amended version of the Old Act claim. It was a new application for the purposes of s 84C. This submission, I would note, was founded on the provisions of s 64(1) and (2): but cf Strickland v Native Title Registrar (1999) 168 ALR 242 at [37]-[38]. 2. Compliance with s 61 and s 62