Sparrow v State of South Australia (Mirning Eastern Sea and Land Claim)
[2021] FCA 1357
•4 November 2021
FEDERAL COURT OF AUSTRALIA
Sparrow v State of South Australia (Mirning Eastern Sea and Land Claim) [2021] FCA 1357
File number: SAD 76 of 2021
SAD 71 of 2016Judgment of: CHARLESWORTH J Date of judgment: 4 November 2021 Catchwords: NATIVE TITLE – native title determination application made in respect of land and waters in the vicinity of the Great Australian Bight – claim group defined in a way that excludes some descendants of named apical ancestors but not others – descendants of the same apical ancestors previously determined to acknowledge the same traditional laws and to observe the same traditional customs – consideration of whether the claim group is a properly constituted claim group for the purposes of s 61 of the Native Title Act 1993 (Cth) – consideration of the traditional decision-making law, taking the claimant’s evidence at its highest – consideration of whether the claim group is a distinct society – claim not authorised as required by s 61 – whether the Court should permit the claim to proceed to trial notwithstanding the defect in authorisation
PRACTICE AND PROCEDURE – native title determination application overlapping a series of existing claims in respect of the same land and waters – existing claims having a long procedural history – existing claims subject to adjudication of a single disputed issue – existing claims to promptly proceed to a consent determination in the usual course – consideration of the impact of the recently commenced overlapping claim – overlapping claim summarily dismissed as an abuse of process
Legislation: Native Title Act 1993 (Cth) ss 13, 61, 62, 64, 67, 68, 84, 84C, 84D, 87, 87A, 94A, 223, 225, 251B, 253
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules 2011 (Cth) r 26.01
Cases cited: Bodney v Bropho (2004) 140 FCR 77
Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760
Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638
Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978
Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724
District Council of Streaky Bay v Wilson [2021] FCAFC 181
Drury v Western Australia (2020) 276 FCR 203
Far West Coast Native Title Claim Group v State of South Australia (No 4) [2012] FCA 1468
Far West Coast Native Title Claim v South Australia (2011) 191 FCR 381
Far West Coast Native Title Claim v South Australia (No 2) (2012) 204 FCR 542
Far West Coast Native Title Claim v State of South Australia (No 6) [2013] FCA 1270
Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285
Fourmile on behalf of the Gimuy Walubara Yidinji People v Queensland [2018] FCA 572
Garrett, in the matter of Company One [2016] FCA 703
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; 238 ALR 1
Jango v Northern Territory (2007) 159 FCR 531
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75
KD (deceased) on behalf of the Mirning People v State of Western Australia (No 4) [2017] FCA 1225
Kite v State of South Australia [2007] FCA 1662
Landers v South Australia (2003) 128 FCR 495
Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599
Risk v Native Title Tribunal [2000] FCA 1589
Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728
Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 1122
Stock on behalf of the Nyiyaparli People v State of Western Australia (No 4) [2018] FCA 1370
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
UBS AG v Tyne (2018) 265 CLR 77
Walker on behalf of The Noonukul of Minjerrabah v State of Queensland [2007] FCA 967
Williams v Grant [2004] FCAFC 178
Wilson v State of South Australia (No 3) [2019] FCA 1150
Wilson v State of South Australia (No 4) [2020] FCA 1805
Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422
Division: General Division Registry: South Australia National Practice Area: Native Title Number of paragraphs: 267 Date of last submission: First Respondent: 17 September 2021 Date of hearing: 2 September 2021, 3 September 2021 SAD 76 of 2021 Counsel for the Applicant: Mr D Billington with Mr J Roder Solicitor for the Applicant: Triple BL Legal Counsel for the First Respondent: Mr W Ambrose Solicitor for the First Respondent: Crown Solicitor’s Office Counsel for the Second Respondent: Ms R Webb QC with Ms A Bond Solicitor for the Second Respondent: Australian Government Solicitor Counsel for the Third and Fourth Respondents: Ms S Phillips with Ms A Sibree Solicitor for the Third and Fourth Respondents: South Australian Native Title Services SAD 71 of 2016 Counsel for the Applicant: Ms T Jowett with Mr C Gregory Solicitor for the Applicant: South Australian Native Title Services Counsel for the State of South Australia: Mr W Ambrose Solicitor for the State of South Australia: Crown Solicitor’s Office Counsel for the Commonwealth of Australia: Ms R Webb QC with Ms A Bond Solicitor for the Commonwealth of Australia: Australian Government Solicitor Counsel for Bunna Rupert Lawrie, Dorcus Miller, Rose Miller, Robert Miller, Meegan Sparrow: Mr D Billington Solicitor for Bunna Rupert Lawrie, Dorcas Miller, Rose Miller, Robert Miller, Meegan Sparrow: Triple BL Legal Counsel for Robert Lawrie and Michael Alfred Laing: Mr T Campbell Solicitor for Robert Lawrie and Michael Alfred Laing: Campbell Law Counsel for the District Council of Streaky Bay and Wildcatch Fisheries SA Inc Ms C Divakaran Solicitor for the District Council of Streaky Bay and Wildcatch Fisheries SA Inc Mellor Olsson ORDERS
SAD 76 of 2021 MIRNING EASTERN SEA AND LAND CLAIM (PART B) BETWEEN: MEEGAN CARMEL SPARROW AND CAMERON CARLO MILLER
Applicant
AND: STATE OF SOUTH AUSTRALIA (and others named in Schedule A)
Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
4 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant r 26.01 of the Federal Court Rules 2011 (Cth), the Mirning Eastern Sea and Land Claim Part B (as defined in paragraph 3 of the orders made on 24 June 2021) is summarily dismissed insofar as the claim area covers the claim areas in the following proceedings:
(a)Caroline Wilson and Ors on behalf of the Wirangu No 2 Native Title Claim Group v State of South Australia and Ors (Wirangu (No 2) Part A) (SAD6019 of 1998);
(b)Caroline Wilson and Ors on behalf of The Wirangu No 3 Native Title Claim v State of South Australia (Wirangu (No 3) Part A) (SAD228 of 2019); and
(c)Attorney-General for South Australia non-claimant application (Wirangu No 2 non-claimant application Part A) (SAD123 of 2019).
2.Pursuant to s 84C of the Native Title Act 1993 (Cth), the originating application filed on 10 May 2021 is struck out to the extent that it covers any area within the boundaries of the Mirning Eastern Sea and Land Claim Part B (defined in paragraph 3 of the orders made on 24 June 2021) that is not affected by the order in paragraph 1.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
SAD 71 of 2016 FAR WEST COAST SEA CLAIM
(GREAT AUSTRALIAN BIGHT OVERLAP PROCEEDING)BETWEEN: LEONARD MILLER (and others named in Schedule B)
Applicant
AND: STATE OF SOUTH AUSTRALIA (and others named in Schedule B)
Respondent
SAD 76 of 2021 MIRNING EASTERN SEA AND LAND CLAIM (PART A)
(GREAT AUSTRALIAN BIGHT OVERLAP PROCEEDING)BETWEEN: MEEGAN CARMEL SPARROW AND CAMERON CARLO MILLER
Applicant
AND: STATE OF SOUTH AUSTRALIA (and another named in Schedule C)
Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
4 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to s 84C of the Native Title Act 1993 (Cth), the originating application filed on 10 May 2021 is struck out insofar as it covers the area within the boundaries of the Mirning Eastern Sea and Land Claim Part A as defined in paragraph 2 of the orders made on 24 June 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J
INTRODUCTION
This native title claimant application is known as the Mirning Eastern Sea and Land Claim (MESL Claim). Before the Court are two interlocutory applications seeking to have the MESL Claim struck out in its entirety and otherwise summarily dismissed in part.
Overlapped claims
The originating application seeks a determination of native title under s 13 of the Native Title Act 1993 (Cth) (NT Act) in relation to a large area of sea in and around the Great Australian Bight, together with a portion of land situated on the Eyre Peninsula incorporating the town of Streaky Bay (the MESL Claim area). It overlaps the claim areas of other native title determination applications. Having regard to those overlaps, on 24 June 2021 the Court made an order partitioning the MESL Claim into western and eastern parts, respectively called “Mirning Eastern Sea and Land Claim Part A” (MESL Part A) and “Mirning Eastern Sea and Land Claim Part B” (MESL Part B).
The overlapped claims are:
(1)the Far West Coast Sea Claim commenced on 9 March 2016 described at [32] – [38] below: Leonard Miller Senior and Ors on behalf of the Far West Coast Sea Claim v State of South Australia and Ors (SAD71 of 2016). I will refer to it as the FWCSC Application. It is wholly overlapped by MESL Part A; and
(2)three claims made on behalf of the Wirangu People described at [54] – [60] below (together, the Wirangu Applications) and a non-claimant application made on behalf of the Attorney-General of South Australia: portion of Caroline Wilson and Ors on behalf of the Wirangu No 2 Native Title Claim Group v State of South Australia and Ors (SAD6019 of 1998) known as Wirangu No 2 Part A, portion of Caroline Wilson and Ors on behalf of The Wirangu No 3 Native Title Claim v State of South Australia (SAD228 of 2019) known as Wirangu No 3 Part A, Neville Bilney & Ors v State of South Australia (SAD84 of 2021) known as Wirangu Sea Claim; portion of Attorney-General for South Australia non-claimant application (SAD123 of 2019) know as Wirangu No 2 non-claimant application Part A. All of these applications are overlapped by MESL Part B.
The Aboriginal applicants in the above-mentioned proceedings will be referred to as the FWCSC Applicant and the Wirangu Applicants respectively.
A large portion of the MESL Claim area is not overlapped by the claim area of any other application.
On 24 June 2021, the Court made an order pursuant to s 67 of the NT Act that MESL Part A be dealt with in the same proceeding as the FWCSC Application, that proceeding to be known as the Great Australian Bight Overlap Proceeding. On the same day, the Great Australian Bight Overlap Proceeding was set down for trial to commence on 14 March 2022, being the date that the trial of the FWCSC Application was otherwise due to commence by orders made by White J on 4 December 2020. Six weeks have been set aside for the trial. The trial is in respect of a separate question, identified by White J by an order made on 28 April 2020, as:
But for any question of extinguishment of native title and the determination of matters required by s 225(c), (d) and (e) of the Native Title Act 1993 (Cth):
(a)Does native title exist in relation to any and what land and waters of the claim area?
(b)In relation to that part of the claim area in which the answer to (a) above is in the affirmative:
(i)who are the persons, or each group of persons, holding the common or group rights comprising the native title?
(ii)what is the nature and extent of the native title rights and interests? (Preliminary Questions)
The relief sought
The first interlocutory application is that filed on 17 June 2021 by Mr Neville Miller and Ms Elizabeth Pool in their capacity as respondents. Mr Miller and Ms Pool are also among the persons who comprise the Wirangu Applicants. They seek orders that:
…
2.Pursuant to section 84C(1) of the NTA the Mirning Eastern Sea and Land native title claim (SAD76/2021) be struck out on the basis that it does not comply with sections 61and 62 of the NTA.
3.Further or in the alternative the Mirning Eastern Sea and Land native title claim be summarily dismissed pursuant to rule 26.01 of the Federal Court Rules 2011 on the grounds that:
a. the proceeding is frivolous;
b. the proceeding is an abuse of process of the Court.
…
The second interlocutory application is that filed by the FWCSC Applicant on 28 June 2021 after the s 67 order was made. The FWCSC Applicant seeks an order pursuant to s 84C of the NT Act that the MESL Claim be struck out on the basis that the authorisation requirements of s 251B of the NT Act have not been satisfied and (separately or consequentially) the initiating process does not meet the requirements of s 61 of the NT Act.
There are common issues arising on the two interlocutory applications, as well as issues peculiar to one or other of them.
Before turning to the issues, it is necessary to briefly traverse the applicable provisions of the NT Act, to provide some further information about the determination applications presently before the Court, and to mention some prior determinations having significance to the outcome.
THE NT ACT
The expressions “native title” or “native title rights and interests” are relevantly defined in s 223(1) of the NT Act to mean:
… the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)the rights and interests are recognised by the common law of Australia.
As Gleeson CJ, Gummow and Hayne JJ explained in Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, a “traditional” law or custom is one that has been passed from generation to generation of a society that has existed before the assertion of sovereignty by the British Crown (at [46]). In important respects, laws and customs “arise out of and, in important respects, go to define a particular society” (at [49]). As such, the word “traditional” must be understood as referring to “the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty” (at [86]). Their Honours reinforced the point (at [88]):
…. continuity in acknowledgment and observance of the normative rules in which the claimed rights and interest are said to find their foundations before sovereignty is essential because it is the normative quality of those rules which rendered the Crown’s radical title acquired at sovereignty subject to the rights and interests then existing and which now are identified as native title.
For a native title claim to succeed, it must be shown that the society under whose laws and customs the native title rights and interests are said to be possessed has continued to exist, substantially uninterrupted, throughout the period since sovereignty “as a body united by its acknowledgment and observance of the laws and customs” (at [89]).
Section 61(1) of the NT Act contains a table prescribing the persons who may make particular kinds of applications under the NT Act. A native title determination application may be made by:
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; …
For the purposes of the NT Act, s 253 relevantly defines the expression “native title claim group” (in relation to an application for a determination of native title made to this Court) as the claim group mentioned in relation to the application in the table in s 61(1). The word “traditional” in s 61 must be understood in the sense explained in Yorta Yorta.
In the case of a native title determination application made by a person or persons authorised to make the application by a native title claim group the person is (or the persons are jointly) the “applicant”: NT Act, s 61(2)(c). The procedure by which an applicant may be authorised to make a native title determination application is prescribed by s 251B. It provides:
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 or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation 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.
Section 62 of the NT Act prescribes the requirements of a determination application. They include a requirement that the application be accompanied by an affidavit sworn by the applicant including:
(1)to the effect that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it: s 62(1)(a)(iv); and
(2)setting out the details of the process of decision-making complied with in authorising the applicant to make the application to deal with matters arising in relation to it: s 62(1)(a)(v).
A determination application must also contain the details required by s 62(2). Those details relevantly include:
(d)a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;
(e)a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:
(i)the native title claim group have, and the predecessors of those persons had, an association with the area; and
(ii)there exist traditional laws and customs that give rise to the claimed native title; and
(iii)the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;
Section 84C(1) of the NT Act provides that if an application does not comply with s 61 (including because it is not made by persons authorised to make it) or s 62, a party to the proceedings may at any time apply to this Court to strike it out.
Section 84D of the NT Act relevantly provides:
(3) Subsection (4) applies if:
(a)an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or
…
(4)The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:
(a)hear and determine the application, despite the defect in authorisation; or
(b)make such other orders as the court considers appropriate.
The MESL Claim
The MESL Claim was commenced on 10 May 2021 by an initiating process in Form 1 (the Original MESL Form 1). The named applicant comprises Ms Meegan Sparrow and Mr Cameron Miller (the MESL Applicant).
On 14 September 2021 (after the conclusion of argument and reservation of judgment), the MESL Applicant filed an application for leave to amend the Original MESL Form 1. The proposed amendments are considered elsewhere in these reasons. The following analysis is based on the content of the Original MESL Form 1, as it was that document that formed the basis of oral and written submissions at the hearing of the strike out applications. If the Original MESL Form 1 is liable to be struck out, it will be necessary to consider whether the circumstances justifying the striking out or dismissal of the application are of a kind that are capable of being cured by amendments of the kind proposed.
As has been mentioned, the MESL Claim relates to a large area of the sea in the vicinity of the Great Australian Bight and includes a body of land in its eastern portion. The western boundary is a seaward prolongation of the South Australia / Western Australia border. The southern boundary follows the line of latitude 33 degrees south, to the point where that line intersects the lowest astronomical tide. It then continues over the land generally in a straight line easterly to a landmark known as Murphy’s Haystacks. The eastern boundary is a straight line between Murphy’s Haystacks and Wallala Rock, terminating where that line intersects with the boundary of a determination made in SAD6011 of 1998 (a determination made for the benefit of the Barngarla People in Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724). The northern boundary coincides in part with the southern boundary of a determination made in 2013 in Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285 (the 2013 Determination), the significance of which will be discussed throughout these reasons.
As the State of South Australia correctly observes, the distance from the western boundary of the claim area to the eastern boundary is in excess of 500km. From the lowest astronomical tide, the claim area extends seaward to a maximum distance of approximately 150km. The MESL Claim area overlaps the whole of the waters covered by the FWCSC Application, being an area of the sea traversing the length of its coastal boundary and extending seaward to a distance of 300m from the lowest astronomical tide. The overlapped portion is small in size relative to the whole of the MESL Claim area.
The MESL Claim group
The claim group description has three elements. In these reasons it will be necessary to repeatedly refer back to them. For convenience I will label them “CRITERION A”, “CRITERION B” and “CRITERION C’. They are extracted below, with those headings inserted by me:
Under the traditional laws of the Mirning people, the native title holders are those living Aboriginal people who:
CRITERION A:
A. are a biological descendant of one or more of the following persons:
a. Tjabilja (mother of Mickey Free Lawrie);
b. Bingi (father of Yari Wagon Billy);
c. Maggie (mother of Jimmy Scott);
d. Colona Tom;
e. Jack McCarthy;
f. Jimmy Mingo (also known as Kolbari, Karraiji and Mailman Jimmy);
g. Jack Jacobs (whose wife was Kakaanj);
h. Charlie Traveller; and
i. Jinna Makul
AND
CRITERION B:
B. self-identify as a Mirning person; AND
CRITERION C:
C.acknowledge that the Mirning people possess native title rights and interests in the Claim Area, under the traditional laws acknowledged, and the traditional customs observed, by the Mirning people.
The phrases “Mirning people”, “Mirning person” and “the traditional laws of the Mirning people” are not expressly defined. It is nonetheless plain from the opening words of the description that the claimed native title is possessed “under the traditional laws” of a society whose members are referred to as “Mirning people”.
On the evidence presently before the Court it does not appear that there are any living descendants of the apical ancestors named in paragraphs (d), (f), (g), (h) and (i) of CRITERION A.
The claimed rights and interests include rights “in accordance with Mirning traditional law and custom”, to do such things as access, pass over and remain in the area, to access resources in the area, to make decisions about the custodianship and use of the area which are binding upon the native title holders.
The claimed rights and interests are expressed to be non-exclusive.
Adopting the language of s 62(2)(e) of the NT Act, the factual basis upon which it is asserted that the claimed rights and interests exist is broadly asserted in Schedule F as:
(a)the native title claim group has, and the predecessors of those persons had, an association with the area; and
(b)there exist traditional laws and customs that give rise to the claimed native title; and
(c)the native title claim group has continued to hold the native title in accordance with those traditional laws and customs.
The “traditional laws and customs” that are said to give rise to the claimed native title are set out in Schedule F of the Original MESL Form 1. It asserts that the “Mirning people” have been recognised as native title holders in relation to particular apical ancestors in two prior determinations made by this Court including the 2013 Determination. It goes on to state that “[n]ecessarily, these determinations mean that the Mirning people have traditional laws and customs” and that the “apical ancestors identified in this claim are all either recognised apical ancestors in South Australia in relation to the [2013 Determination] or have been noted in various historic documents as being present in or near the application area around the time of white settlement”. In relation to the waters claimed, Schedule F asserts that the parallel at 33 degrees south is an approximation of the extent of land inhabited by “the Mirning people’s ancestors” when sea levels were much lower.
OVERLAPPING APPLICATIONS
The FWCSC Application
The FWCSC Application was filed on 9 March 2016. It is made on behalf of those persons who are said to hold native title rights and interests in accordance with the traditional laws and customs of a regional society referred to as the Far West Coast People, comprised of three language groups referred to as the Mirning People, the Kokatha People and the Wirangu People.
The claim area originally covered an area from the seaward prolongation of the South Australia / Western Australia border in the west to the easternmost point of Cape Bauer in the east, and seaward from the low water mark to the three nautical mile limit. By an amended originating application filed on 24 June 2021, the claim area was reduced so that it now extends seaward to a maximum of about 300 metres in some parts, encapsulates some islands and incorporates an area 50 metres along the Bunda Cliffs.
The claim group is defined by two alternate criteria. The first captures “those living Aboriginal people who … are descendant, either through birth or adoption, from one or more of the following Kokatha, Mirning and Wirangu antecedents”. The list of 44 apical ancestors that follows is not subcategorised as either Mirning, Wirangu or Kokatha. However, the list includes the following four persons:
(1)Tjabilja;
(2)Bingi;
(3)Maggie (mother of Jimmy Scott); and
(4)Jack McCarthy.
It is common ground that these four apical ancestors are the same as those named in the definition of the MESL Claim group: see paragraphs (a), (b), (c) and (e) of CRITERION A. I will refer to them as the Common Ancestors.
The second criteria captures those persons who “are recognised by the native title claim group under their traditional laws and customs as having native title rights and interests in the application area” (including because of their birth in, or their mythical or ritual knowledge of, the claim area.
The factual bases for the claimed native title are set out in Attachment F. The bases include an assertion that the Kokatha, Mirning and Wirangu “comprise the Far West Coast People” and reference is made to “the relevant traditional laws and customs of the Far West Coast Peoples”. The MESL Applicant complains that there is ambiguity in some aspects of these assertions. However, it is plain enough that the FWCSC Applicant asserts the existence of a regional society, that is, a society defined by a body of traditional laws and customs under which the asserted rights and interests of the members of the claim group are said to be possessed. The FWCSC Applicant relies on the 2013 Determination and alleges that the FWCSC Application constitutes a logical extension of the rights and interests that were the subject of that determination. The 2013 Determination area relates to a body of land immediately adjacent to the area in the sea now covered by both the FWCSC Application and (in part) the MESL Claim.
On its face, the FWCSC Application does not particularise the rights held by particular individuals in relation to specific parts of the claim area. Presumably, that detail is intended to be left to internal decision-making processes within the regional society itself, should a determination be made in the terms sought.
The Bunna Lawrie Parties
On 15 November 2016, Mr Michael Laing (represented by Campbell Law) filed a notice of intention to become a party to the FWCSC Application. On 16 January 2017, an entity describing itself as the Indigenous Justice Advocacy Network also filed a notice of intention to become a party on behalf of seven persons: Mr Robert Miller, Mr Robert Lawrie, Ms Dorcas Miller, Ms Meegan Sparrow, Mr Michael Laing, Ms Rose Miller and Mr Bunna Rupert Lawrie. All of these persons became parties to the FWCSC Application by the operation of s 84(3) of the NT Act. Their joinder notice stated that they sought to be joined “on behalf of the Mirning People”.
Since that time, Ms Sparrow has been removed as a respondent on her own application. Mr Laing remains represented by Campbell Law, and Mr Robert Lawrie has been represented by that firm since 19 May 2021. The present solicitor and counsel for the remaining four (Ms Virginia Marshall of Triple BL Legal and Mr David Billington of Counsel) are the same solicitor and counsel now acting on behalf of the MESL Applicant.
These respondents have previously been referred to collectively as the “Bunna Lawrie Parties” and I will continue to use that description. However, it is appropriate that I exclude Mr Laing from the description as it is presently unclear whether the interests asserted by Mr Laing are the same as those asserted by the others. I do not consider the particular interest asserted by him to bear on the outcome of the present applications.
It is common ground that each of the Bunna Lawrie Parties (again excluding Mr Laing) is a descendant of the apical ancestor named “Tjabilja”, one of the four Common Ancestors.
The position adopted by the Bunna Lawrie Parties forms a part of the factual context in which the interlocutory applications are to be determined.
In September 2017, White J heard an application by the FWCSC Applicant for orders removing the Bunna Lawrie Parties as respondents together with an application by the Bunna Lawrie Parties for orders striking out or dismissing the FWCSC Application. Both applications were dismissed: Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599. As White J observed, at the time that the applications were determined, the persons who the Bunna Lawrie Parties described as “the Mirning People” had not made a claimant application asserting the particular native title rights and interests then asserted by them in their individual capacities as respondents, nor had any anthropological evidence been put forward to support the interests asserted by them.
The Bunna Lawrie Parties filed a Statement of Facts Issues and Contentions (SFIC) on 28 February 2020, prior to the commencement of the MESL Claim. Their case is further pleaded in their Points of Response dated 20 March 2020 (POR).
By their SFIC, the Bunna Lawrie Parties plead that the culture of “the Mirning People” is distinct and different from Western Desert laws and customs and has been described as the “old coast culture”. By [7.3] it is alleged that there are two regional societies which are bound together by normative rules namely:
7.3.1.the Far West Coast society, comprising the Mirning, Wirangu and Kokatha People (together with certain other persons who are not Mirning, Wirangu or Kokatha persons but who are recognised by one or more of those Peoples as having native title rights and interests within that part of the FWC Determination area referred to as ‘Native Title Land’); and
7.3.2.the Mirning (WA) society, comprising the Mirning People and the Spinifex People (together with certain other persons who are not Mirning or Spinifex persons but who are recognised by one or more of those Peoples as having native title rights and interests within the Mirning (WA) Determination area), …
It is further alleged:
·“Mirning law and custom is entirely descent-based and is concerned with a primarily coastal bounded geographic area which is the aggregate of all Mirning local group territories at Sovereignty”;
·the Mirning People are a “native title society” and have been recognised as such in prior determinations of native title;
·the Mirning People are a body of persons united in and by the traditional rules of the Mirning People (referred to in the pleading as “Mirning Native Title Rules”); and
·Mirning Elders may give directions about the exercise of native title rights and interests which should be obeyed.
Paragraph 46 of the SFIC alleges:
The Mirning elders have the traditional power to allow a person with Mirning ancestry, but who would not otherwise satisfy the Mirning Native Title Rules, to become a Mirning native title holder. However, this has never been done in relation to a person who has consciously decided to follow another Aboriginal group’s laws and customs.
The extent of “Mirning country” is described at [52] of the SFIC as extending east “at least as far as Clare Bay, SA”.
Among other things, the POR alleges that traditional tenurial rights in the area covered by the FWCSC Application were the product of the laws and customs of “local groups or language groups, not some regional society” POR, [5]. The Bunna Lawrie Parties put the FWCSC Applicant to proof “to show that any non-Mirning people had traditional rights or interests in the sea claim area at Sovereignty” POR, [6]. They dispute that “Mirning persons can belong to or within any other Aboriginal group”: POR, [8]. They assert that the Aboriginal People who occupied the FWCSC claim area at sovereignty acknowledged “the same or substantially similar body of laws and customs, namely, Mirning traditional laws and customs” and possibly some persons who observed Wirangu traditional laws and customs: POR, [11.3]. They go on to assert:
25.Traditionally, the Mirning People comprised a number of clans, each with distinct territories:
25.1.access to, and use of, another clan’s territory was only by permission; and
25.2.the usual means of seeking such permission was to light a fire to send a smoke signal from an area on or near the boundary between clan territories and to wait for members of the other clan to come and meet the persons seeking permission and, if appropriate, to give permission.
26.Traditionally, the Head of the Bight was within the territory of the Yirkla Mirning clan, and members of other Mirning clans (and other Aboriginal groups) needed to obtain permission from the Yirkla clan to access:
26.1.the Head of the Bight; and
26.2.permanent water along the cliffs of the Bight (where lying within Yirkla territory).
The Bunna Lawrie Parties allege (at POR [35]) that insofar as the FWCSC Applicant contends that there is “one integrated polity” comprising Kokatha, Wirangu and Mirning People:
… that is a contention of the absorption of the Mirning People as a people into some larger People and it is disputed by the Mirning People and put in issue by them.
(emphasis in original)
These allegations are consistent with those contained in materials before White J at the time that the applications in Miller were decided in 2018. His Honour observed (at [118]):
The affidavits of the Bunna Lawrie Parties indicate, and it was not in dispute (other than in the case of Mr Laing), that they are Mirning People. Some (including Bunna Lawrie, Robert Lawrie and Dorcas Miller) are Senior Elders and others are Elders. The Bunna Lawrie Parties assert that the Mirning are a distinct people with a distinct language and distinct laws and customs. They deny that they form part of any larger society or group and, in particular, of the Far West Coast People. The Bunna Lawrie Parties claim that much of the area claimed in the Far West Coast Sea Claim is Mirning country - the claimed Mirning country does not extend as far east as does the Far West Coast Sea Claim but does extend further west, beyond the South Australian-Western Australia border. They assert that only the Mirning have authority to speak for, and to bring a claim for native title in respect of, this country. They dispute that the Kokatha People and the Wirangu People have any connection with their sea country and dispute that those people are entitled to claim native title in respect of it. Each of the Bunna Lawrie Parties has deposed that the Mirning People have not authorised the Far West Coast Sea Claim.
Justice White went on to consider a number of factors weighing in favour of the removal of the Bunna Lawrie Parties as respondents. Among other things, his Honour observed that it was open to them to bring their own application for a determination of native title (provided that they could obtain the authority “of all the Mirning People to do so”) but that alternative had not been pursued by them (at [144]). His Honour observed that there was no evidence that the Bunna Lawrie Parties had attempted to resolve what was essentially an intermural dispute in accordance with traditional decision-making processes deposed to by them (particularly Mr Bunna Lawrie). However, his Honour was not satisfied that the Bunna Lawrie Parties should be removed as parties, including because (at [148]):
… Although there is an intra-mural dispute, its subject matter is the composition of the claim group as the party asserting native title, and not the manner of conduct of the claim. It cannot be assumed that, if native title exists in relation to the sea area, it is held by the same group recognised as having native title over the adjacent land. That recognition is likely to be an important factor in the determination of the sea claim but it is not decisive. It is open to the Bunna Lawrie Parties to contend that the native title is held by a more confined group. It has been recognised that when the sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area, that subgroup may itself constitute a native title claim group: Kite v South Australia [[2007] FCA 1662] at [22]. That tends to confirm that the Bunna Lawrie Parties may have an interest to be defended in the present proceedings.
The Wirangu Applications
As has been mentioned, there are three Wirangu Applications, two relating principally to areas of land (the Wirangu Land Applications) and one relating to an area in the sea (the Wirangu Sea Application).
As explained earlier the Wirangu Land Applications are:
(1)a partitioned portion of Caroline Wilson and Ors on behalf of the Wirangu No 2 Native Title Claim Group v State of South Australia and Ors SAD6019 of 1998 known as Wirangu No 2 Part A; and
(2)a partitioned portion of Caroline Wilson and Ors on behalf of the Wirangu No 3 Native Title Claim v State of South Australia SAD228 of 2019 known as Wirangu No 3 Part A.
Wirangu No 2 Part A relates to land on the Eyre Peninsula. It is the northern portion of a partitioned claim comprising Part A in the north and Part B in the south. The Part A claim area incorporates the township of Streaky Bay. The proceedings now comprising Part A and Part B were commenced about 23 years ago.
Wirangu No 3 Part A (commenced more recently on 25 October 2019) relates to discrete parcels of land within the external boundaries of Wirangu No 2 Part A. The claim area in Wirangu No 2 Part A did not encompass those parcels because of issues concerning tenure and extinguishment. The parcels could not later be incorporated within Wirangu No 2 Part A because to do so would enlarge the claim area contrary to s 64(1) of the NT Act. On 18 June 2019 a non-claimant application was made by the Attorney-General of South Australia including in respect of the parcels of land now incorporated within Wirangu No 3 Part A. The relevant parcels fall within the external boundaries of Wirangu No 2. The State’s non-claimant application was made to ensure that all of the land and waters within the external boundaries of Wirangu No 2 Part A could be dealt with in the one trial and/or consent determination. The State has previously foreshadowed to the Court that the non-claimant application may be withdrawn, because its purpose is served by the claimant application in Wirangu No 3 Part A.
The Wirangu Sea Application was commenced on 18 May 2021 (that is, after the commencement of the MESL Claim): Neville Bilney and Ors v State of South Australia (Wirangu Sea Claim #2) (SAD84 of 2021). It relates to an area in the sea extending south from Cape Bauer to Point Westal, then roughly south-east through Cape Blanche, Slade Point, Point Labatt, Cape Radstock and then to Wellington Point. The north-eastern border follows the coast and is contiguous with the border of Wirangu No 2 Part A. The Wirangu Sea Application area encompasses Corvisart Bay, Sceale Bay, Searcy Bay and Anxious Bay, and includes Flinders Island, Waldgrave Island and islands known as “The Watchers”, extending seaward 300 metres from the low water mark.
The Wirangu Applicants include Mr Neville Miller and Ms Elizabeth Pool.
The claim groups in the applications are said to be descendants of apical ancestors, none of whom are named as apical ancestors in the FWCSC Application or the MESL Claim.
PRIOR DETERMINATIONS
Two prior native title determinations are relevant.
The 2013 Determination
In Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285, Mansfield J made a native title determination by consent under s 87 of the NT Act (referred to earlier in these reasons as the 2013 Determination). The determination area extended from the coast north of the town of Streaky Bay to the South Australia / Western Australian border. Its seaward boundary extended to the low water mark measured at the lowest astronomical tide.
The determined native title holders are described as the Kokatha, Mirning and Wirangu People “who comprise the Far West Coast People”. The determined native title is that held under the traditional laws and customs of “the Far West Coast People”. The native title is held by a prescribed body corporate, the Far West Coast Aboriginal Corporation (Far West Coast PBC).
The 2013 Determination followed the consolidation of a number of competing determination applications in respect of the same area. The overlapping claims included an application made in WAD6016 of 1998 known as the “Mirning Native Title Claim”. The claim group in that proceeding was defined (in part) by reference to the descendants of two sons of Tjabilja and the descendants of “Gumillya ‘Carmelia’ Button”. It is to be recalled that Tjabilja is one of the Common Ancestors.
In 2004 the Aboriginal Legal Rights Movement facilitated an extensive mediation at Spear Creek, culminating in an agreement for the resolution of the multiple overlapping claims. There followed a series of meetings of the peoples represented in each of them. As a result of those meetings, an amended native title determination application was filed in proceedings SAD6008 of 1998. It became known as the “Far West Coast Native Title Claim”. The people on behalf of whom that claim was made included all of the people who had previously been claimants in the Mirning Native Title Claim and the original Far West Coast Claim. It was that amended claim that culminated in the 2013 Determination, but not before a good deal of interlocutory dispute evidencing the disaffection of some persons with the consolidation that had occurred. As White J observed in Miller, much of the interlocutory activity (at [18]):
… seemingly [reflected] a concern by some individuals within Mirning People that their interests, or those of the Mirning more generally, were not being properly represented in the processes then taking place and the view, by some, that the Mirning were a separate and distinct society and did not form part of the Far West Coast People. …
The interlocutory activity included an unsuccessful application by an entity known as “Mirning Community Incorporated” to be joined to the Far West Coast Native Title Claim (see Far West Coast Native Title Claim v South Australia (2011) 191 FCR 381); an unsuccessful application for the reinstatement of the original Mirning Claim and its deconsolidation from the Far West Coast Native Title Claim (see Far West Coast Native Title Claim v South Australia (No 2) (2012) 204 FCR 542); an unsuccessful attempt to have a separate body corporate prescribed in respect of the interests of the Mirning People (see Far West Coast Native Title Claim Group v State of South Australia (No 4) [2012] FCA 1468); and an unsuccessful application to have the effect of the agreement reached at Spear Creek suspended (see Far West Coast Native Title Claim v State of South Australia (No 6) [2013] FCA 1270).
KD No 4
This determination concerns land situated in Western Australia to the immediate north west of the FWCSC claim area: KD (deceased) on behalf of the Mirning People v State of Western Australia (No 4) [2017] FCA 1225 (KD No 4).
Paragraph 9 states that native title in the area is held by “the Mirning People” (and by certain members of the Spinifex People). The native title holders are described in Schedule Six as “the Mirning people, being those persons who are the descendants of” 10 apical ancestors. Two of those ancestors (Maggie and Tjabilja) are also named in the claim group description in the MESL Claim (assuming that Maggie is the same person as “Maggie (mother of Jimmy Scott)”). The remaining eight apical ancestors include Gumillya “Carmelia” Button and Sally Broome. “Descent” for the purposes of the native title holders’ description is descent by birth or adoption “in accordance with Mirning tradition and custom”. Recital E contains an acknowledgement that the effect of the making of the determination is that the members of the native title claim group, “in accordance with the traditional laws acknowledged and the traditional customs observed by them” should be recognised as the native title holders for the determination area set out in the determination.
A part of the determination area is immediately adjacent to the South Australia / Western Australia border and so abuts the determination area in the 2013 Determination. The determination area in KD No 4 (comprised of land) is adjacent in one corner to the MESL Claim area, in the sea.
The effect of all of that is that the MESL Claim area is a step away from each of the areas subject to the prior determinations.
In accordance with the principles discussed in Yorta Yorta, the legal effect of the determination in KD No 4 is to recognise the Mirning People as a society that has continued to exist, substantially uninterrupted since sovereignty as a body united by its acknowledgment and observance of traditional laws and customs. The rights and interests of the native title holders must be understood as rights and interests transmitted by descent from the named apical ancestors in accordance with those traditional laws and customs. The 2013 Determination had (at least) the same effect.
ISSUES
The issues arising on the present applications may be referred to as the “authorisation issue”, the “subgroup issue” and the “abuse issue”. There is some overlap between them. Briefly, they are as follows.
Authorisation issue
The MESL Applicant’s authorisation to bring the MESL Claim is said to have been given by all of the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed. That authorisation is said to have been given at an authorisation meeting held at the Port Lincoln Hotel on 8 May 2021. I will refer to it simply as the Meeting. As discussed below, the Meeting invitation was extended only to persons who fell within what later became the claim group description (with a minor discrepancy to be discussed later).
The effect of the interlocutory applicants’ submissions is that the MESL Applicant is not authorised within the meaning of s 61 or s 251B of the NT Act because:
(1)descendants of previously recognised Mirning apical ancestors were not named in CRITERION A;
(2)certain descendants of the apical ancestors named in CRITERION A were prohibited from participating because of CRITERION C;
(3)the decision-making process by which the MESL Applicant was said to have been authorised was not in accordance with traditional law and custom because certain Mirning Elders were not consulted in advance of the Meeting and were otherwise prohibited from attending; and
(4)the claim group was described by different formulations in different documents in the lead up to the Meeting and, as a consequence, the claim group described in the Original MESL Form 1 was not the same as that originally notified to eligible meeting participants.
Relatedly, it is submitted that the MESL Claim constitutes an abuse of process in that there is no reasonable prospect of establishing it was authorised under the NT Act. In my view, whether or not a defect in the authorisation process has the consequence that a native title determination application may also be regarded as an abuse of process is unnecessary to decide. The discretion to strike out a determination application for want of authorisation is conferred under s 84C of the NT Act, subject to the exercise of the discretion conferred by s 84D. It is not necessary to characterise an unauthorised claim as an abuse of process for the power under s 84C to be enlivened.
The MESL Applicant’s response to the authorisation issue is that the above arguments misapprehend the claim group description and the provisions of the NT Act as to what authorisation requires in the circumstances of their particular case. The core points are:
(1)the MESL Claim group is a distinct society defined by traditional laws and customs that are different from the laws and customs upon which prior determinations have been made, so giving rise to a separate native title;
(2)the particular native title claimed is to be ascertained by reference to their traditional laws and customs, not by reference to the laws and customs of persons falling outside of the claim group description;
(3)no conclusive finding as to the existence of the alleged society or as to the content of its traditional laws and customs can or should be made in the context of a strike out application;
(4)no person falling within the claim group description was prohibited from participating in the authorisation process; and
(5)it cannot be said that the MESL Applicant has no prospects of succeeding in its proof that the claim is properly authorised, such that the question of authorisation, together with the asserted native title rights and interests must be permitted to proceed to trial.
Subgroup issues
Subgroup questions arise at different levels of specificity. The largest Aboriginal society referred to in submissions is that recognised by the 2013 Determination, referred to as the “Far West Coast People”. It is the traditional laws and customs of that society that are alleged to be the source of the native title claimed in the FWCSC Application.
The question is what (if any) consequences should follow for the MESL Claim on the strike out applications should it be concluded to the requisite standard that:
(1)the MESL Claim group is to be equated with the Mirning language group, recognised in the 2013 Determination as forming a part of a traditional regional society; and/or
(2)the MESL Claim group is a subgroup of the Mirning language group by virtue of the omission of descendants of ancestors not named in CRITERION A; and/or
(3)the MESL Claim group is a more narrow subgroup again by virtue of the exclusion of those descendants of the named apical ancestors who do not fulfil CRITERION C.
To an extent, these questions are different ways of expressing some of the arguments raised by the strike out applicants in connection with the authorisation issue. They are raised more pointedly in the written submissions of the State, where it is said:
Given the overlap of Mirning People, albeit Mirning People with different understandings of the extent of Mirning Country and its traditional law and custom, it appears that either one is a sub-group of another, or they are both sub-groups of the broader Mirning People. That is relevant on the FWC Strike-Out Application given that a native title claim must be brought on behalf of properly constituted groups, not individuals or small subgroups. As Mansfield J said in Dieri People v South Australia ‘… 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 applicant group, or the grant of native title to a subgroup of the real native title applicant group …’. How that sub-group identity can be resolved on these interlocutory applications, without testing lay and anthropological evidence, is unclear. Unlike in Dieri there is no admission by a member of the MESLC applicant that the claim was bought by the MESLC so as to exclude other Mirning People. Likewise, there is no evidence that the application has been brought so as to explore and identify who is Mirning which formed the basis of the summary dismissal in Laing v State of South Australia (No 2) [2012] FCA 980. Rather, the evidence is only that, as discussed immediately below, people could not attend the MESLC meeting if they were not a capable of satisfying the three elements defining membership of the MESLC applicant group.
The issues also arose in the course of argument because of a particular interpretation the MESL Applicant asked the Court to adopt on the Original MESL Form 1 in response to the strike out arguments and because of the nature of the evidence advanced in prima facie support of the MESL Applicant’s case. As discussed below, the assertion that the MESL Claim group is a “distinct society” is the principal answer given by the MESL Applicant to the allegation that the claim is not authorised in accordance with s 61 of the NT Act, and to the subgroup issues.
The word “subgroup” in these reasons is not intended to be used in a way that suggests that the identification of a claim group as a subgroup of a society necessarily means that the claim group could not be validly constituted, or that a claim made on its behalf could not be validly authorised. I will return to that topic in due course.
The abuse issue
For the Wirangu Applicants it is submitted that the MESL Claim should be summarily dismissed pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) as either frivolous or vexatious or as an abuse of the Court’s processes insofar as it overlaps the Wirangu Land Applications. The argument has two aspects.
First, it is submitted that the MESL Claim is either an attempt to re-litigate matters previously agitated in various interlocutory proceedings culminating in the 2013 Determination (summarised earlier), or an attempt to depart from binding agreements culminating in the 2013 Determination or otherwise rendered untenable by reason of the terms of the 2013 Determination itself.
Second, it is submitted that the MESL Claim is vexatious or otherwise constitutes an abuse of process because it has been commenced more than 22 years after the proceedings in Wirangu No 2 were first commenced and at a stage where the proceedings I have collectively described as the Wirangu Land Applications (including portions of Wirangu No 2) are otherwise ready to proceed to determination by consent under s 87A of the NT Act.
The arguments founded on delay are supported by the State of South Australia as the first respondent to both the Wirangu Land Applications and the MESL Claim.
STRIKE OUT PRINCIPLES
Read together, s 84C and s 84D contemplate that substantive findings on the question of authorisation may appropriately be made at the pre-trial stage. So much is apparent from the text of s 84C(1) and s 84C(2), which require that the Court consider any strike out application made under s 84C “before any further proceedings take place in relation to the main application”. Section 84D requires that where a defect in authorisation is demonstrated, the Court may hear and determine the application, despite the circumstance that the defect in authorisation has been shown to exist. A recent example occurred in Miller, White J there concluding that the authorisation of the FWCSC Application was defective because of a failure to notify all members of the claim group in advance of an authorisation meeting (at [56]). It was the identification of that defect that fulfilled s 84D(3)(a) (the application did not comply with s 61), which in turn enlivened the discretion in s 84D(4). His Honour exercised the discretion in favour of permitting the FWCSC Applicant to prosecute its claim (at [97] – [98]), because a subsequent meeting demonstrated that a newly commenced claim in the same terms would have been authorised in any event.
The circumstance that the Court may enquire into the validity of the asserted authorisation of its own motion reinforces the importance that the Court’s own processes be protected from the procedural chaos and associated waste of judicial and administrative resources that may result from the prosecution of claims that are not authorised in accordance with the NT Act.
As to the test to be applied, in Kite v State of South Australia [2007] FCA 1662, Finn J said (at [24]):
… 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.
Similarly, in Walker on behalf of The Noonukul of Minjerrabah v State of Queensland [2007] FCA 967, Mansfield J said a strike out application brought pursuant to s 84C of the NT Act is to be determined in accordance with the same principles that apply on an application for summary judgment brought pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth). In Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; 238 ALR 1, Lindgren J put it this way (at [1192]):
How does s 84C, which assumes that it may be possible for an application to be struck out prior to the final determination of an application, accommodate the fact that the native title claim group is defined to mean the actual holders of the particular native title claimed? In my opinion, the answer is that the striking out remedy is available once it clearly appears that, if the application were to succeed according to its own terms, the applicants would not have been authorised by all those persons the Court would determine to be the actual holders of the particular native title claimed, that is to say, by all the members of the ‘claim group’ (all the ‘claimants’).
There will be cases in which the validity of authorisation may depend upon on anthropological and other evidence concerning disputed questions, including disputes as to traditional decision-making processes. In such cases, to successfully oppose the application it may be enough to point to evidence sufficient to support an arguable case that the claim is authorised within the meaning of the NT Act.
In Miller, White J conveniently summarised (at [43]) the principles relating the application of s 84C, drawing on the decisions of this Court in Williams v Grant [2004] FCAFC 178, Bodney v Bropho (2004) 140 FCR 77 and Landers v South Australia (2003) 128 FCR 495. Those which were pertinent in the case were as follows:
(a)section 84C is concerned with matters of form and authority and not with the merits of the underlying application for determination of native title, Bodney at [33];
(b)a strike out application under s 84C should be approached in the same way as a strike out application under r 26.01, Bodney at [50], Landers at [7];
(c)the application should be approached with caution and allowed only when a clear case for summary dismissal is established, Bodney at [51], Williams at [48]-[49]. In Kite v State of South Australia [2007] FCA 1662, Finn J said at [24] 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’;
(d)it is not for the Applicant to show that it was authorised: instead it is for those seeking to have the application struck out to establish a clear case of lack of authorisation, Bodney at [27];
(e)the Court may receive evidence relating to the circumstances relied on for the strike out, Bodney at [52];
…
As will be explained, an inquiry into the authorisation of a native title applicant cannot be divorced from an inquiry (albeit at a low evidentiary threshold) as to the existence of the asserted traditional society. That is because the statutory test for authorisation encompasses the expressions “all of the persons”, “native title claim group” and “the particular native title claimed”. In the context of a strike out application it is necessary to ask whether there is a tenable case fulfilling the conditions for authorisation, proceeding from a correct interpretation of those expressions. The nature and extent of that inquiry must of course depend on the issues that are in dispute on the application.
AUTHORISATION AND SUBGROUP ISSUES
These issues may be dealt with together.
The persons who comprise the MESL Applicant (Ms Sparrow and Mr Miller) have affirmed affidavits to the same effect concerning their authority to commence the MESL Claim. The deposition of Ms Sparrow is as follows:
…
7.I am a member of the native title claim group.
8.I am, together with the other member of the Applicant, authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it.
9.I was authorised at a meeting of the native title claim group held on Saturday 8 May 2021 held at the Port Lincoln Hotel in Port Lincoln, South Australia.
10.In authorising the Applicant to make the application and to deal with matters arising in relation to it, the claim group complied with the following process of decision-making:
The traditional Mirning law and custom for making decisions about country is mulagie.
Mulagie requires that the Elders hold a nwalgakn (meeting)
The Elders then make the decision at the meeting.
The Elders’ decision is binding.
11.By decision of the Elders in nwalgakn on 8 May 2021, I was one of the two Mirning persons to be authorised under sections 61(1) and 251B of the Native Title Act 1993 (Cth) to be, jointly, the Applicant.
12. The Applicant’s authority is subject to conditions, namely:
1.The Applicant is required to act in the best interests of all Mirning People and not just the family groups of the persons comprising the Applicant.
2.Before making important decisions, the Applicant must take reasonably practicable steps to consult with all senior Mirning elders (for example by telephoning them and speaking with them or allowing at least 24 hours to respond).
3.The Applicant can’t pay themselves without consulting the Elders.
Whether or not the MESL Application was “authorised” is a mixed question of fact and law. It is appropriate to read the assertions of authorisation in the two affidavits as an expression of a belief on the part of the deponents that the requirements for authorisation under the NT Act were met by the facts alleged. I give no weight to the assertions of authorisation insofar as they depend for their correctness upon questions of law, particularly questions as to the meaning of expressions used in s 61 the NT Act, to which I have just referred.
At [10] of her affidavit, Ms Sparrow asserts (at least implicitly) that authorisation was given in accordance with “traditional Mirning law and custom for making decisions about country” by way of a meeting of “Elders”. It is s 251B(b) of the NT Act that is therefore invoked. The affidavit does not identify “the Elders” who participated in the “nwalgakn” giving rise to the decision to authorise the claim.
The events that occurred at the Meeting are deposed to directly in two affidavits of Ms Alana Miller affirmed on 30 July 2021 and 11 August 2021. The following findings are based upon those affidavits (taking that evidence at its highest). The events themselves (as opposed to their legal consequences) are not the subject of significant controversy.
Notification and conduct of the Meeting
Advance notification of the Meeting was given by way of public advertising, the extent of which is correctly summarised in the MESL Applicant’s written submissions in the following terms:
29.1.a half-page advertisement in The Advertiser on 9 April 2021;
29.2.an online advertisement in the Koori Mail from 7-21 April 2021;
29.3.an online advertisement in the National Indigenous Times commencing on 7 April 2021;
29.4.a full page advertisement in the Port Lincoln Times on 15 April 2021;
29.5.a full page advertisement in Norseman Today’s May 2021 edition;
29.6.the publishing of a dedicated website from 6 April 2021, to which a Questions and Answers section was added on 16 April 2021;
29.7.a post on Facebook by Bunna Lawrie, visible to his almost 5,000 ‘friends’; and
29.8. a post by the Far West Coast Aboriginal Corporation to its Facebook account.
The latest of those publications was not at the instance of those responsible for organising the Meeting but rather at the instance of the Far West Coast PBC. The Facebook post by the Far West Coast PBC states “Far West Coast is not endorsing this meeting, nor the claim. The link has been shared for information only”.
The content of the advertisement is substantively the same in each instance. It begins with the heading “NATIVE TITLE AUTHORISATION MEETING / MIRNING EASTERN SEA & LAND CLAIM”. There follows a map depicting the proposed claim area. There is then the following text:
All* living Aboriginal people who:
(1) are Mirning people (as described below): AND
(2)acknowledge that the Mirning People possess native title rights and interests in the Claim Area (shown on the map above and described below), under the traditional laws acknowledged, and the traditional customs observed, by the Mirning People, are invited to attend a meeting for the purpose of authorising a native title determination application (Claim) over the Claim Area.
Persons who do not satisfy (1) and (2) above may not participate in the meeting and will not be permitted entry unless exceptional circumstances apply (for example, a carer for a person who is permitted entry).
IF YOU WISH TO PATICIPATE, YOU MUST ATTEND, DECISIONS BINDING, THE MIRNING PEOPLE MAY BE MADE IN YOUR ABSENCE
Saturday 8 May 2021 at Port Lincoln Hotel, Port Lincoln
Meeting commences 11.00 am with registration open 9.00 to 10.45 am
PRE-REGISTRATION IS STRONGLY ENCOURAGED
For the purposes of this claim, the Mirning People are the persons who:
A. are a biological descent of one or more of the following persons:
Tjabilja (Lawrie); Bingi (father of Yari Wagon Billy); Maggie (mother of Jimmy Scott); Jack McCarthy; Jimmy Mingo (also known as Kolbari, Karraiji and Mailman Jimmy); Charlie Traveller; Jack Jacobs (whose wife was Kakaanj); and Colona Tom AND
B. self-identify as a Mirning person; AND
C.acknowledge that the Mirning People possess native title rights and interests in the Claim Area, under the traditional laws acknowledged, and the traditional customs observed, by the Mirning people.
The Claim Area is the area within the following boundaries: WEST: the seaward prolongation of the South Australian border with Western Australia; SOUTH: (over the sea) the line of latitude 33° S to the point where that line intersects lowest astronomical tide and then (over the land) generally easterly to Murphy’s Haystacks; EAST: the line from Murphy’s Haystacks to Wallala Rock, terminating where that line intersects the Barngarla Determination; and NORTH: the boundaries of the Far West Coast determination and (near Wallala Rock) the Barngarla determination.
To Register you must:
(1)identify how you are a descendant of one or more apical ancestors identified in (A) above; and
(2) sign and return an acknowledgment of (B) and (C) above.
You can text through a photo of your signed acknowledgment form.
*persons aged 15, 16 and 17 years old may or may not be permitted to participate; a decision will be made by those present at the start of the meeting.
Travel & Catering: Pre-register early to secure your seat on a chartered bus from Ceduna or Adelaide. Fuel reimbursement only by prior arrangement.
Agenda: Please see website or scan the QR code.
Further information & Pre-register call [redacted]
Email [redacted] or [redacted]
As can be seen, the advertisement “STRONGLY ENCOURAGED” eligible participants to pre-register for the Meeting. To register it was necessary for participants to identify how they fulfilled CRITERION A (by identifying their apical ancestor) and to acknowledge that they fulfilled CRITERION B and CRITERION C. Registration forms were available at the website referred to at the base of the notice. The registration form contained a list of apical ancestors for the registrant to circle where appropriate.
There are two versions of the registration form in evidence, both of which were promulgated by the Meeting organisers in advance of the Meeting. As correctly submitted by the Wirangu Applicants, there are some discrepancies in the materials concerning the apical ancestors, namely:
(1)the advertisement contained a list of eight ancestors;
(2)a registration form initially made available on the Mirning wesbsite included two ancestors not named in the advertisement, namely Bununa and Yabinya;
(3)a further iteration of the registration form included only those ancestors named in the advertised notice; and
(4)the claim group description in the originating application includes an apical ancestor who was not named as an ancestor in the advertised notice (Jinna Makul): see CRITERION A(i).
The invitation to pre-register for the Meeting was taken up by 55 people. The asserted genealogies of those persons was checked by Ms Dorcas Miller and Mr Bunna Lawrie (each of whom are Bunna Lawrie Parties). Of those who registered in advance, 26 attended. A further 28 persons completed registration forms at the beginning of the Meeting and their genealogies were also checked. No person who completed a registration form was refused attendance. Altogether there were 54 attendees, including some who were aged between 15 and 17.
Of the 54 people who attended the Meeting, 52 were descendants of the apical ancestor Tjabilja alone, or of Tjabilja together with Maggie (mother of Jimmy Scott) or Tjabilja together with Bingi (father of Yari Wagon Billy). Two other attendees were identified as descendants of Maggie (mother of Jimmy Scott) alone. The attendees were overwhelmingly Tjabilja descendants, however (as explained below) by reason of CRITERION C, not all Tjabilja descendants were permitted to attend.
Ms Miller deposes that “[f]ive copies of the draft MESL Form 1” were placed on an information table inside the Meeting room and I accept that to be so. By reason of the resolutions described below I infer that the draft document was the same as that which was ultimately filed in this Court.
The minutes of the Meeting are in evidence, as are a series of PowerPoint presentation slides that were displayed and discussed. I will identify the slides by numbering them in the order in which they appear in the relevant affidavit. On the basis of the minutes and the slides, I am satisfied that the following events occurred.
The Meeting commenced with a “Welcome to Mirning People and Acknowledgment of Country” given by Mr Bunna Lawrie.
A slide titled “people involved today” identified Bunna Lawrie, Robert Lawrie (not present) and Dorcas Miller as “senior elders” and three others as “elders” (Slide 5).
The attendees were introduced to two lawyers, Mr David Billington (barrister) and Dr Virginia Marshall (solicitor). Slide 5 identifies Mr Billington as the “MC” for the Meeting. Mr Billington gave a background of his work at the bar and provided a brief history of the FWCSC Application.
Early in the meeting, two slides were displayed titled “Background to the claim” and “Achievements of Elders”. From the minutes it is reasonable to infer (and I so find) that these slides accompanied Mr Billington’s opening words and I find that the words said by Mr Billington are summarised in them. The slides read as follows:
Slide 6:
•Background to the claim
•1994 claim
•period of pressure 1999 – 2005
•amalgamation with promise of Mirning – controlled areas
•FWC land claim – involvement thwarted by majority voting and being ‘out-legalled’
•FWC sea claim – BLP pushing back but probably can’t get native title for Mirning people this way
•claim for Mirning people
Slide 7:
•Achievement of the Elders
•surviving since 2016 – coming up for 5 years
•many strong, detailed, affidavits
•submerged archaeology experts & report
•anthropology experts & stage 1 report (190 pages)
•anthropology on country fieldwork for stage 2 (8 days so far)
•solicitor and barrister retained
•extraordinary level of historical research done
The abbreviation BLP may be fairly understood as a reference to the Bunna Lawrie Parties. I infer that the “pushing back” referred to the positions taken by the Bunna Lawrie Parties in their capacity as respondents to the FWCSC Application, as summarised earlier in these reasons. Slide 6 reflects the history of native title disputes summarised earlier in these reasons.
Slide 8 then displayed a list of nine apical ancestors, being the same as those now described on the originating application. The name Jinna Makul had the words “late inclusion” after it. That is consistent with that name not appearing in the advertisement or in any version of the registration form. The same slide contains the word “rights as set out in draft Form 1 on display at meeting”.
Slides 9 to 17 contain brief information concerning each of the apical ancestors.
Slide 18 is titled “[d]raft rights and interests claimed”. It commences with the words “[t]he native title rights and interests are the non-exclusive rights to, in accordance with Mirning traditional law and custom”, and there follows a description of rights of access, use, custodianship and decision-making in respect of the proposed claim area. The minutes go on to state that decisions would need to be made at the Meeting about the rights and interests. Mr Billington suggested that the claim be non-exclusive in nature, but indicated that was a decision for the attendees. The minutes also state “Re Federal Court both claims can be right” which I infer is a reference to both the FWCSC Application and the MESL Claim as then being proposed at the Meeting.
Slides 19 and 21 contain maps showing the claim area and the overlapping claims. The minutes indicate that the area was described as extending many kilometres out to sea and was said to include gas and oil exploration areas.
Slides 23 to 26 contain four resolutions. Each of them contains the words “carried by majority vote”. The minutes show that those slides (and others like it) were altered as the Meeting progressed to reflect its outcomes. Slide 22 describes the resolutions as “[r]esolutions of the Claim Group”. The resolutions are:
•All Mirning persons present aged 15 and older may participate in the meeting.
•Only Mirning persons present may make decisions. Others can stay in the meeting
•All non-Mirning persons present must keep confidential anything that they learn at the meeting
•Sufficient notice was given of the meeting to allow binding decisions to be made.
Slides 27 and 28 are titled “[d]ecision making process” and the following two slides are titled “[p]ossible traditional processes”.
On the basis of the Minutes, I find that Mr Billington addressed the attendees about “possible traditional processes”. In the discussion that followed Mr Bunna Lawrie said that “the traditional Mirning law of making decisions is called ‘mulagie’”, which requires that decisions be made at a meeting of “Mirning elders” known as an “nwalgakn”. Mr Billington then asked if any other persons “had different ideas”.
There followed some discussion about the interpretation of the word “traditional”. The slides on this topic state that it was “easy to say” that white colonisation was so radical and the NT Act was so foreign to traditional laws and customs that there was no traditional process for authorising an applicant for the purposes of s 251B of the NT Act. Slide 28 poses the question “if there is a traditional process, what is it?” Slide 30 states that if there was no traditional process, a simple majority vote could be adopted with or without consulting with the senior elders present.
A resolution was passed unanimously in the following terms:
#5 Traditional decision-making process
The claim group acknowledges that, under the traditional laws and customs of the persons in the native title claim group, there is a decision-making process which must be complied with in relation to authorising things of that kind. The process is:
•The traditional Mirning law and custom for making decisions about country is mulagie.
•Mulagie requires that the Elders hold a nwalgakn (meeting).
•The Elders then make the decision at the meeting.
•The Elders’ decision is binding
It may be observed that the words following each dot point in that resolution were replicated in the affidavits of Ms Sparrow and Mr Cameron as evidencing the process that was complied with.
There followed a process whereby persons who asserted that they were Elders were asked to come forward. There was a debate about the inclusion of at least one of them. By a majority vote, a group of 12 Elders was identified.
From the above resolution and the selection of Elders that followed, it is reasonable to infer (and I so find) that the participants at the Meeting proceeded on the assumption that it would be sufficient to satisfy “traditional Mirning law and custom” for making decisions about country by conducting a meeting (known as a nwalgakn) of the Elders who were present at the Meeting. Plainly, the claim group did not consider it necessary to obtain the approval of any person who was not present at the Meeting (whether an Elder or not).
As with the Original MESL Form 1, that description invites the question as to how the phrase “Under the traditional laws of the Mirning People” is to be understood.
Schedule F is not the subject of any proposed amendment. It maintains an allegation that the predecessors of the claim group had an association with the area and an allegation that there exist traditional laws and customs that give rise to the claimed native title, and directs the reader to Attachment F. Attachment F contains marked-up amendments. The opening paragraphs are as follows:
1.
TheThere are Mirning people who are recognised native title holders:1.1.in relation to particular apical ancestors, for an area of land in Western Australia: see the orders made in KD on behalf of the Mirning People v Western Australia (No 4) [2017] FCA 1225; and
1.2.in relation to other particular apical ancestors (some of which are also apical ancestors in Western Australia), and subject to certain pre-conditions, for an area of land in South Australia: see the orders made in Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285.
2.Necessarily, these determinations mean that these Mirning people have traditional laws and customs which give rise to native title.
The amendments do not mention (nor can they alter) the incontrovertible circumstance that the people encapsulated in the phrases “There are Mirning people” and “these Mirning people” must necessarily include the descendants of Tjabilja, Maggie, Gumillya “Carmelia” Button and Sally Broome. They are the people who hold the native title recognised in KD No 4, derived from the traditional laws and customs of the society known as the Mirning People. Paragraph 2 can only be interpreted to mean that those persons hold the same communal native title in the KD No 4 determination area as each other. The same may be said of the Mirning People who hold native title rights and interests recognised in the 2013 Determination. It is incontrovertible that those persons include (at least) the descendants of Tjabilja and Maggie (and so incorporate the whole population of persons who attended the Meeting). It is incontrovertible that members of the MESL Claim group hold native title in immediately adjacent areas in accordance with the traditional laws and customs of a group broader than themselves (the Mirning People), as recognised in the prior determinations. It remains incontrovertible that they hold that particular native title in those adjacent areas in common with other persons who were excluded from attending the Meeting, whether or not they identified as Mirning in accordance with CRITERION B.
The next amendments are the inclusion of new [2A] and [2B]:
2A.These determinations also mean that there is not one single group of ‘Mirning people’ who hold native title, whether alone or with others.
2B.In relation to the claim area, the Mirning people who are descendants of the apical ancestors identified by the claim group, and who acknowledge the claim group’s connection to the claim area under traditional Mirning laws and customs, are native title holders.
A new [15.4] asserts that “knowing and teaching the country in which claim group members have rights and interests was essential” as an aspect of the traditional laws and customs giving rise to the native title.
The proposed amendments culminate in proposed new [16] and [17] as follows:
16 The native title claimed is possessed by the claim group as a native title society.
17In the alternative, the native title claimed is possessed by the claim group as a group within a broader native title society.
I have already identified that a claim in the nature advanced in [17] may well be brought on behalf of a validly constituted native title claim group, provided that the claim is properly authorised under the traditional laws of the “broader native title society” from which the claimed native title is derived. However, the supporting affidavit of Ms Sparrow is incapable of establishing that a claim of that kind has been so authorised. The asserted authorisation runs up against the same problems concerning the traditional laws in relation to decision-making in respect of the whole of the “Yinyila Nation” referred to in Mr Lawrie’s affidavit. I do not consider it to be in the interests of justice to permit the MESL Applicant to re-agitate that discrete issue.
Considered together, the allegations in [2A], [2B], [15.4] and [16] may be interpreted as alleging that the MESL Claim group is a validly constituted “native title claim group” as defined in the NT Act, so as to anticipate and overcome any adverse finding the Court may make in connection with the authorisation and subgroup issues. It will be understood as an assertion that the traditional laws and customs of the claim group are distinct from those recognised in the prior determination so as to define a distinct society. Ms Sparrow’s affidavit also proceeds on an assumption that the claim group comprises a distinct society capable of holding a different native title in relation to the whole of the MESL Claim area. The authorisation given by the selected Elders is asserted to have been given in accordance with the traditional laws and customs of that distinct society.
The following considerations lead me to the conclusion that the proposed amendments are not capable of overcoming the conclusions of fact and law justifying the strike out of the MESL Claim:
(1)It remains an incontrovertible fact that the MESL Claim group description does not include all of the descendants of the apical ancestors named in CRITERION A. Some descendants of the same ancestors are excluded, and self-confessedly so.
(2)The excluded descendants have been recognised as holding the same native title as the non-excluded descendants in prior determinations of this Court in relation to immediately adjacent land and waters. In respect of those determinations, all of the descendants hold the same “particular native title” under the same traditional laws and customs. Incontrovertibly, they are members of the same traditional society. Proposed amended [1] and [2] do not and cannot alter that circumstance.
(3)The proposition that the excluded and included persons could be part of the same traditional society giving rise to the same native title in respect of one area, but members of distinct societies giving rise to separate native titles in respect of land or waters one step away has not been established at the level of an arguable case. The MESL Applicant should not be afforded an opportunity to re-agitate that question through the means of an amendment application.
(4)In a case founded on the transmission of native title rights and interests by a process of biological descent, the proposition that descendants of the same apical ancestors can be members of different traditional societies (and hence members of two distinct “native title claim groups” within the meaning of s 61 of the NT Act) is untenable in any event. That conclusion does not turn on anthropological evidence. It turns on the proper interpretation of the definition of native title in s 223 of the NT Act, particularly the word “traditional” as discussed earlier in these reasons.
The MESL Applicant has been heard in respect of these matters, particularly in the course of advancing and defending its submission that the MESL Claim group constituted a distinct society. The matters were fairly canvassed in the course of argument on the strike out application. The MESL Applicant was afforded the opportunity after the conclusion of argument to direct the Court to evidence capable of supporting the submissions concerning a distinct society and that material has been read and considered.
I am not satisfied that the MESL Applicant should be permitted to advance arguments on an amendment application that would have the effect of revisiting the issues dealt with on the strike out applications in respect of matters that have already been the subject of evidence and argument. In my discretion, I will not set the amendment application down for hearing and will not re-open argument on the strike out applications by reference to it.
THE ABUSE ISSUE
Mr Miller and Ms Pool seek an order under r 26.01 summarily dismissing the MESL Claim insofar as it overlaps with the Wirangu Land Applications on the basis that the proceeding is an abuse of process: Rules, r 26.01(1)(b). The State joins in that application. It alleges that the MESL Claim constitutes unjustifiable oppression and brings the administration of justice into disrepute.
As the plurality in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 explained (at [28]), the categories of abuse of process are not closed:
… In Walman v Gardner the majority adopted the observation in Hunter v Chief Constable of West Midlands Police that the courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be ‘manifestly unfair to a party to litigation … or would otherwise bring the administration of justice into disrepute among right-thinking people’. This does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’.
(footnotes omitted)
See also: Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 (at [25]) and UBS AG v Tyne (2018) 265 CLR 77, where Kiefel CJ, Bell and Keane JJ said (at [1]):
… The varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute. …
(footnote omitted)
In the present case, there are two arguments founded in abuse of process principles.
The first is that the MESL Claim seeks to agitate an issue concerning the “extent of Mirning country” that has been finally determined in the 2013 Determination. I do not accept that submission. The 2013 Determination was the culmination of concessions in respect of the particular land and waters to which the previously overlapping claims related. None of those concessions had the effect of finally determining the eastern-most reach of Mirning country. I do not consider the content of the 2013 Determination provides a basis for the summary dismissal of the MESL Claim as an abuse in the sense that the case sought to be litigated has previously been finally determined.
The history of that earlier proceeding is nonetheless relevant to the determination of the second argument. It concerns the timing of the commencement of the MESL Claim and its impact on the administration of justice in the Wirangu Land Applications. It is necessary to expand upon some of that history.
For more than 25 years the land and waters in the vicinity of the west coast of South Australia have been the subject of a series of contested and overlapping native title claims. They include but are not limited to the multitude of proceedings culminating in the prior determinations referred to earlier in these reasons. As has been mentioned, persons representing the Mirning People actively participated in negotiations in respect of what were then expansive overlapping claims in an attempt to resolve them. The proceeding known as Wirangu No 2 was filed with the National Native Title Tribunal (NNTT) in August 1997 and transferred to this Court in 1998. It has been on foot throughout the period in which the interests of the Mirning People have been advanced, litigated and negotiated. Wirangu No 2 was notified by the NNTT in early 2001 and there was an unsuccessful attempt at mediation between 2008 and 2012. It was then dormant in the Court for some time but for at least the past six years, it has been actively case managed by the Court. Orders were made in 2018, partitioning Wirangu No 2 into Part A and Part B, the area in Part B having become overlapped by another claim commenced by another Aboriginal group. Wirangu No 2 Part A was then set down for trial to commence on 4 November 2019. A subsequent application by the Wirangu Applicants to have the trial dates vacated was dismissed: Wilson v State of South Australia (No 3) [2019] FCA 1150. A process of extensive negotiation ensued in parallel with the work necessary to prepare the matter for trial, involving the Wirangu Applicants, the State and the respondent parties. As a result of those efforts substantive agreement was reached on the terms of a determination recognising the native title rights and interests of the Wirangu People. Having been informed of those efforts, on 26 November 2019 the Court ordered that the State circulate the consent determination to all of the respondents in draft form. The Court ordered that any party not willing to consent to a draft determination in terms that had been circulated by the State was to file an affidavit identifying the basis of the dispute. The District Council of Streaky Bay raised an issue of extinguishment affecting a small part of the claim area constituting the Streaky Bay Golf Course. No other respondent raised any basis for withholding their consent to the proposed determination.
The resources of this Court and the parties were then diverted to the resolution of the single disputed issue, culminating in the judgment in Wilson v State of South Australia (No 4) [2020] FCA 1805 at [4] – [5] (Wilson (No 4)). The issue identified in that judgment was substantively determined as a separate question under r 30.01 of the Rules, drafted with the concurrence of all of the parties, as the only disputed question to be tried. To be clear, by adjudicating the separate question, the Court substantively commenced a trial of the action, on the basis that the parties would be bound by the judgment of the Court. The hearing proceeded on the basis that if the dispute were to be adjudicated in favour of the District Council, then the proposed consent determination could be amended to reflect that outcome. In the result, the issue was determined against the District Council. The Full Court has recently dismissed an appeal by the District Council from the judgment in Wilson (No 4): District Council of Streaky Bay v Wilson [2021] FCAFC 181.
In the ordinary course, the District Council must be expected to consent to the determination earlier agreed by all of the other the parties, subject only to a grant of special leave to appeal from the judgment of the Full Court. Neither the District Council nor any other party has identified any other lawful basis for withholding consent to the proposed determination. In light of the Court’s order requiring respondent parties to file affidavits outlining any issue in dispute by a fixed date, in my preliminary view it is not presently open to any respondent party to assert an interest in opposing the consent determination based on facts known at any earlier time. No such dispute is anticipated in any event.
Were it not for the disputed issue raised by the District Council, Wirangu No 2 Part A together with Wirangu No 3 Part A would in the ordinary course have proceeded to a consent determination in 2020. Moreover, had the Court been made aware that there existed non-parties who asserted rights and interests in the subject land of any kind, the Court would not have diverted its judicial and administrative resources either toward the progression of the matter to trial on 4 November 2019, or to the extensive processes involved in the negotiation and resolution for the issues between the Wirangu Applicants and the State or toward the identification, hearing and adjudication of the separate question. It would not have required all respondent parties to expend costs considering the terms of the proposed consent determination and it most certainly would not have dedicated the Court’s considerable resources to assist with the resolution of the primary dispute between the Wirangu Applicants and the State.
The circumstances are similar to those arising Stock on behalf of the Nyiyaparli People v State of Western Australia (No 4) [2018] FCA 1370. In that case, a native title claim filed in 1998 was programmed to proceed to a consent determination in September 2018. A month before the date fixed for hearing, an interlocutory application was filed by persons who claimed they were native title holders in respect of a part of the claim area and who sought to be joined as respondents to assert that interest. Barker J dismissed the interlocutory application for a number of reasons, including because it was “unreasonable conduct, to a high degree” for joinder applicants to wait eight years before raising the prospect of an overlapping native title claim and to do so after the proposed consent determination had been authorised by the affected claim group and one month before the consent determination was due to be made (at [45]).
Counsel for the MESL Applicant submitted that criticism of the conduct of litigants of the kind made in Stock could not be made here, because in Stock there were identifiable natural persons to whom the relevant decisions and conduct could be attributed. It was submitted that it was impossible for such criticisms to be directed to the whole of an Aboriginal society. It was submitted that neither the Wirangu Applicants not the State could point to a particular individual who had knowledge or decision-making capacities of the kind that may be readily apparent in other cases in which an abuse of process is alleged. I cannot accept these submissions.
The NT Act envisages that members of a traditional society may (indeed must) organise themselves in order to advance and protect their unique interests within the framework of the NT Act. A critical part of that framework is that a determination of native title cannot be made in respect of an area in which there already exists an approved determination of native title: NT Act, s 68.
Plainly, there are human actors who are responsible for conceiving of the MESL Claim, for making the necessary arrangements for the Meeting, for instructing lawyers to prepare the claim, for instructing the experts referred to in the Meeting slides, for drafting the Original MESL Form 1 for distribution at the Meeting and for conducting the Meeting itself. I will refer generally to those persons as the proponents. Given what occurred at the Meeting it is reasonable to infer that the proponents include Mr Bunna Lawrie. He may well be the only proponent. It matters not either way.
It is to be recalled that Mr Lawrie has been an active respondent on the FWCSC Application since 2016. He is plainly dissatisfied with the negotiated outcome culminating in the 2013 Determination. As his affidavits and the sixth slide presented at the Meeting suggest, he is one of a number of people who perceived they were “out-legalled” in prior negotiated claims. As has been mentioned, the Bunna Lawrie Parties were joined as respondents to the FWCSC Application around the time of its commencement in 2016. They include four persons who are also among the selected Elders at the Meeting. As White J observed in 2018, no claimant application had been brought on behalf of the Mirning People to agitate (as claimants) the position the Bunna Lawrie Parties advanced in their capacities as respondents. Three years passed between the judgment of White J in Miller and the commencement of the MESL Claim, notwithstanding his Honour’s observation that the Bunna Lawrie Parties had not been authorised by the Mirning People to agitate their position. I have already observed that the Meeting attendees were informed about the efforts of the Bunna Lawrie Parties in the litigation. In circumstances where the Bunna Lawrie Parties have been actively involved in litigation asserting their rights and interests over many years in contesting the FWCSC Application, I consider it to be inconceivable that the same active litigants were ignorant of the claims made by the Wirangu People in relation to what is now the eastern-most portion of the MESL Claim area.
There is no explanation given by the proponents (or any other person claiming a relevant interest) for their failure to notify the Wirangu Applicants, or the State or the Court itself of the rights and interests now asserted in the overlapped area at an earlier time. There is no explanation as to why no person now falling within the description of the MESL Claim group made any application to be joined as a respondent to Wirangu No 2 for the purposes of advancing the interests now sought to be advanced. The Court may readily infer that at least four of those persons were well aware that they may join as respondents to a claimant application to assert and protect their rights and interests, four of them having joined as respondents in the FWCSC Application, in recent years with the benefit of legal representation. I can conceive of no reason why the Court’s jurisdiction to prevent an abuse of its processes ought not extend to proceedings that are a manifestation of prior choices of persons who are undeniably members of the MESL Claim group (and indeed members of the Elders who authorised the MESL Applicant), whether or not the proceedings are ultimately brought in a representative capacity, and whether or not the claim concerns unique rights and interests arising under traditional laws and customs of Aboriginal People.
In any event, whilst the question of whether an application in a proceeding constitutes an abuse of process may be determined having regard to the knowledge of the relevant party, knowledge is not determinative of the issues. A proceeding in this Court may meet the description of a vexatious proceeding if it objectively has the effect of vexing the Court and the other parties, whether or not that consequence is intended: Garrett, in the matter of Company One [2016] FCA 703 (at [10]).
In all of the circumstances, the commencement of the MESL Claim (authorised by the same persons) constitutes unjustifiable oppression and so amounts to an abuse.
Even if the above finding be wrong, that would not alter my conclusion that the MESL Claim has the objective effect of bringing the administration of justice into disrepute and that it constitutes unjustifiable oppression to all of the parties in Wirangu No 2 Part A, particularly the Wirangu Applicants and the State. To permit the claim to proceed would be to undermine the procedures that are designed to encourage parties to resolve native title disputes by non-litigious processes. It would provide a disincentive to all parties to engage in conciliatory processes rather than commit to a trial if a claimant application (not previously foreshadowed) were permitted to be made in all of the circumstances I have described above.
It is not the case (as submitted by the MESL Applicant) that the consent determination might simply be delayed for a short time whilst a separate and distinct consent determination is negotiated with the State. There is nothing in the material before me to suggest that a negotiated resolution between the State and the MESL Applicant in respect of the overlapped area would be readily achieved. That only raises the spectre of a contested trial of (at least) the MESL Part B proceeding which must necessarily occur in the same proceeding or the Wirangu Applications if overlaps: NT Act, s 67. The process for its preparation, hearing and adjudication gives rise to a real likelihood that the final resolution of the Wirangu Land Applications will be delayed significantly.
In addition, the introduction into the proceeding of a different claim group gives rise to complexities that potentially affect all of the respondents to the claim. Those respondents have already indicated their consent to the proposed determination in favour of the Wirangu People on the basis that there exists no other native title holders with whom they must have dealings under the NT Act once the determination is made. The late commencement of the overlapping claim in my view would entitle all of the respondents who have previously consented to that determination to withdraw their consent to it because a factual premise behind the consent (the existence of only one “particular native title claimed” and so only one prescribed body corporate) will have altered. The respondents in any event are entitled to certainty and finality as to the rights and interests affecting the subject land and waters. The additional delay is prejudicial in and of itself.
I do not consider the more recent date of commencement of the claim in Wirangu No 3 to have any bearing on the issues I have just described. The reasons for the commencement of that claim arose from practical necessities relating to tenure issues affecting small parcels. Whilst it was not commenced until October 2019, it is properly to be regarded as a step taken by the Wirangu Applicants, urged by the State and the Court itself, to ensure that the anticipated consent determination could be made in relation to all land and waters falling within the external boundaries of the Wirangu No 2 claim area. The Wirangu No 3 Part A parcels form only a very small part of the Wirangu No 2 Part A claim area.
I have not overlooked that the rights and interests asserted in the MESL Claim are unique in their character. The consequence of its summary dismissal is that the Wirangu Land Applications will promptly proceed to a consent determination in the ordinary course. The determination will preclude any other determination being made in respect of the same land and waters without the claims asserted by the MESL Applicant having been tried and decided. However, as mentioned above, it is significant that the MESL Applicant is authorised by a group whose membership includes persons and key protagonists who have been actively involved in native title litigation for many years. In the absence of evidence to the contrary, it is reasonable to infer that they have sufficient knowledge of the nature of native title proceedings to inform their choices as to how the rights and interests of the persons falling within the claim group description should be advanced and protected in respect of all of the land and waters in which their native title is said to be possessed. At the very least, it was available to any one of them as individuals to join as respondents in Wirangu No 2 from the outset (or to later apply to be joined) so as to put the other parties on notice of the rights and interests they now assert for the first time.
The application for summary dismissal under r 26.01 of the Rules should be made. The order in that respect will be expressed so as to make it clear that there exist two discrete bases for dismissing the MESL Claim in respect of its eastern-most portion.
ORDERS
It is to be recalled that the MESL Claim is partitioned in two parts, Part A and Part B. MESL Part A is to be dealt with in the same proceeding as the FWCSC Application.
The appropriate order in the Great Australian Bight Proceedings is that MESL Part A be struck out pursuant to s 84C of the NT Act, so eliminating the overlap with the FWCSC Application. The parties will be heard as to any ancillary orders.
The appropriate orders in MESL Part B are that the proceeding be summarily dismissed pursuant to r 26.01 of the Rules to the extent that the claim area overlaps the Wirangu Land Applications and otherwise struck out pursuant to s 84C of the NT Act. Were it not for the order pursuant to r 26.01 of the Rules, I would have struck out the whole of the proceedings in MESL Part B pursuant to s 84C of the NT Act for the same reasons supporting the order affecting MESL Part A.
I certify that the preceding two hundred and sixty-seven (267) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate:
Dated: 4 November 2021
SCHEDULE OF PARTIES A
SAD 76 of 2021 MIRNING EASTERN SEA AND LAND CLAIM (PART B) Respondents
Second Respondent:
COMMONWEALTH OF AUSTRALIA
Third Respondent:
NEVILLE MILLER
Fourth Respondent:
ELIZABETH POOL
SCHEDULE OF PARTIES B
SAD 71 of 2016 FAR WEST COAST SEA CLAIM
(GREAT AUSTRALIAN BIGHT OVERLAP PROCEEDING)Respondents
Applicant:
OSCAR RICHARDS
Applicant:
ALLAN HASELDINE
Applicant:
CLEM LAWRIE
Applicant:
PURNONG MILLER
Applicant:
JAMES PEEL
Applicant:
ARTHUR CATSAMBALAS
Respondent:
COMMONWEALTH OF AUSTRALIA
Respondent:
DISTRICT COUNCIL OF STREAKY BAY
Respondent:
BUNNA RUPERT LAWRIE
Respondent:
DORCAS MILLER
Respondent:
ROBERT LAWRIE
Respondent:
MICHAEL ALFRED LAING
Respondent:
ROSE MILLER
Respondent:
ROBERT MILLER
Respondent:
MALCOLM LAURIE PYM
Respondent:
LEANNE JOY PYM
Respondent:
LYNTON JOHN PYM
Respondent:
MALCOLM KEITH ETTRIDGE
Respondent:
S ETTRIDGE
Respondent:
PAUL EVANS
Respondent:
EVANS OYSTERS PTY LTD
Respondent:
JILLIAN COATES
Respondent:
M E & J L COATES ATF COATES RETIREMENT FUND
Respondent:
JEDD ROUTLEDGE
Respondent:
COSMIC OYSTERS
Respondent:
SOUTH AUSTRALIAN OYSTER GROWERS ASSOCIATION
Respondent:
WEST-EYRE SHELLFISH
Respondent:
GARRY BRUNO SEIDL
Respondent:
MARCO BREEDE
Respondent:
LEANNE JOSEPHINE BREEDE
Respondent:
THOMAS DARKE
Respondent:
WILDCATCH FISHERIES SA INC
Respondent:
DEBRA MITCHELL
Respondent:
TRENT STOTT AS TRUSTEE FOR TJ FAMILY TRUST
Respondent:
COLLEEN JANE HOLMES
Respondent:
JEFFREY BRIAN HOLMES
Respondent:
COAST OYSTERS SMOKY BAY SA
Respondent:
JOHN WALL
Respondent:
CRAIG FARLEY
Respondent:
JADINSKI BLB HOLDINGS PTY LTD
Respondent:
ZIPPEL ENTERPRISES PTY LTD
Respondent:
SE & DK EVANS PTY LTD
SCHEDULE OF PARTIES C
SAD 76 of 2021 MIRNING EASTERN SEA AND LAND CLAIM (PART A)
(GREAT AUSTRALIAN BIGHT OVERLAP PROCEEDING)Respondents
Second Respondent:
COMMONWEALTH OF AUSTRALIA
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