Starkey v South Australia

Case [2011] FCA 456


FEDERAL COURT OF AUSTRALIA

Starkey v State of South Australia [2011] FCA 456

Citation: Starkey v State of South Australia [2011] FCA 456
Parties: ANDREW STARKEY, JOYLEEN THOMAS, LORRAINE DARE AND MARK MCKENZIE v STATE OF SOUTH AUSTRALIA & ORS
File number: SAD 90 of 2009
Judge: MANSFIELD J
Date of judgment: 9 May 2011
Catchwords: NATIVE TITLE – whether to order that a person cease to be a party to the proceeding – where party joined as of right by s 84(3) of the Native Title Act 1993 (Cth) – where party who was joined as a respondent was already a member of the native title claim group – where joined party contends that authorisation of applicant to act on behalf of the claim group pursuant to s 251B of the Native Title Act 1993 (Cth) could not legitimately occur without his consent – party to cease being a respondent party as to remain as such will delay and interfere with progress towards consent determination – where concern about proper authorisation is better addressed by s 84D
Legislation:

Native Title Act 1993 (Cth) s 62A, 66B, 84, 84D, 251B
Native Title Amendment (Technical Amendments) Act 2007 (Cth)

Cases cited:

Thomas v South Australia [2004] FCA 951 cited
Reid v South Australia [2007] FCA 1479 cited
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 cited
Butterworth on behalf of the Wiri Core Country Claim v State of Queensland [2010] FCA 325 considered
Kulkalgal People v State of Queensland [2003] FCA 163 considered
Munn v State of Queensland [2002] FCA 486 cited
Worimi Local Aboriginal Land Council v Minister for Lands for New South Wales (2007) 164 FCR 181 cited
Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 cited
Davis-Hurst v New South Wales Minister for Land and Water Conservation (2003) 198 ALR 315 cited
Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 cited
Commonwealth of Australia v Clifton (2007) 164 FCR 355 cited
Moses v Western Australia (2007) 160 FCR 148 cited
Bidjara People #2 v State of Queensland [2003] FCA 324 cited
CombinedDulabed and Malanbarra/Yidinji Peoples v State of Queensland (2004) 139 FCR 96 cited
Combined Dulabed and Malanbarra/Yidinji Peoples v State of Queensland [2002] FCA 1370 cited
Combined Dulabed and Malanbarra/Yidinji Peoples v State of Queensland (2005) 214 ALR 306 cited

Date of last submissions: 7 May 2010
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 72
Counsel for the Applicants: V Hughston SC with O Linde
Solicitor for the Applicants: South Australian Native Title Services
Counsel for the State of South Australia: S McCaul
Solicitor for the State of South Australia: Crown Solicitors Office
Counsel for the Commonwealth: V Vuksan
Solicitor for the Commonwealth: Australian Government Solicitor
Counsel for ETSA: A Rogers
Solicitor for ETSA: Johnson Winter & Slattery
Counsel for Pastoralists and Andamooka Progress and Opal Miners Association: C Groves
Solicitors for Pastoralists and Andamooka Progress and Opal…

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AGLC
Starkey v South Australia [2011] FCA 456
Case
[2011] FCA 456
Decision Date

CaseChat Overview and Summary

The case of Starkey v South Australia involves a dispute over native title rights in an area previously covered by separate claims of the Kokatha, Barngarla, and Kuyani People. The matter was brought before the Federal Court of Australia to determine whether Mr Reid should remain as a party to the proceeding. Mr Reid, a member of the Kokatha People, joined the proceeding as a respondent and opposes the claim, which has delayed progress towards a consent determination. The court was required to decide whether Mr Reid should remain as a party to the proceedings or be ordered to cease being a party under s 84(8) of the Native Title Act 1993 (Cth). The court examined whether Mr Reid's interests could be considered properly represented by another party and whether his interests were affected by the determination of the proceedings. The court also considered if his continued participation as a party would cause unnecessary expense or delay.

The court found that Mr Reid could be considered a party under s 84(3) of the NT Act, as his interest in relation to the land may be affected by the determination of the proceedings. However, the court held that it would be in the interests of justice for Mr Reid to cease being a party. The court concluded that Mr Reid’s concerns about the authorisation of the applicant to act on behalf of the claim group could be better addressed through other provisions of the NT Act. Consequently, the court ruled that Mr Reid should cease to be a party to the proceeding to avoid further delay and interference with the progress towards a consent determination. The court's decision was based on the need to balance the rights of the parties involved with the expeditious resolution of the native title claim.

The final orders of the court were that Ningil Richard Reid cease to be a party to the proceeding. This ruling allows the native title claim process to continue without the impediment posed by Mr Reid's opposition, facilitating a more streamlined resolution of the claim.

Orders

Orders of the court

1. Ningil Richard Reid cease to be a party to this proceeding.

Note:

Background

Background to the litigation

The issue before the Court is whether Mr Reid should be permitted to remain as a party to the proceeding, or whether it should be ordered that he cease to be a party, pursuant to s 84(8) of the NT Act.BACKGROUND The Kokatha People originally instituted their own native title determination application (SAD 6013 of 1998) which covered an area including the KU claim area. That claim overlapped with the Barngarla People native title determination application (SAD 6022 of 1998) and with a further native title determination application by the Kuyani People (SAD 6004 of 1998). The solicitors for each of the Kokatha People, Barngarla People and Kuyani People at some point jointly approached the Australian Legal Rights Movement Incorporated (ALRM), and then South Australian Native Title Services Inc (SANTS), to conduct dispute resolution assistance to resolve their overlapping claims. The ALRM, and subsequently SANTS, are the native title representative body for South Australia under the NT Act. On 14 December 2008, a meeting was held at the Standpipe Hotel in Port Augusta. At that meeting the KU claim group, comprising the Kokatha People, Barngarla People and the Kuyani People resolved by a very substantial majority to authorise a new single claim in relation to the overlap area and that the original Kokatha People application (SAD 6013 of 1998) be withdrawn. The current application, made on behalf of the KU claim group was filed on 18 June 2009, and the original Kokatha People claim (SAD 6013 of 1998) was discontinued on 20 August 2009. The KU claim area is land previously covered by the separate claims of the Kokatha People, Barngarla People and Kuyani People communities so far as they overlapped. It is an extensive area north of Port Augusta with the eastern side of Lake Torrens forming much of its eastern boundary and the western boundary being the boundary of the native title determination application the Gawler Ranges native title claim (SAD 6020 of 1998). On 22 August 2009, the Kokatha Uwankara application was registered by the National Native Registrar. The claim was referred to the National Native Title Tribunal (NNTT) for mediation. On 8 October 2009, the Court terminated the referral to the NNTT for mediation, and directed the parties to confer with a view to presenting a timetable and process for the provision of connection evidence and its assessment by the State of South Australia (the State). That was done with the concurrence of the parties. They then anticipated that they would resolve the issues between them by agreement. At a subsequent directions hearing on 31 March 2010, the Court was informed by the State that significant progress in negotiations had been made towards reaching agreement on the terms of a consent determination. The claim has not proceeded to that point yet, in part at least because Mr Reid had become a respondent party to the claim and opposes the claim. It is helpful to note Mr Reid’s actions in relation to the earlier claim of the Kokatha People (SAD 6013 of 1998).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Court has the power to waive the rules of evidence if the parties consent and the application of those rules would cause or involve unnecessary expense or delay: ss 190(1) and 190(3)(b) of the Evidence Act 1995 (Cth). I am satisfied that making rulings seriatim on the admissibility of the exceedingly deficient material, and requiring the material to be redrafted and refiled would involve unnecessary expense and delay. The State and SANTS have indicated that they are willing to allow the Court to have regard to all the material that is not privileged, and to give it such weight as it deems fit, for the purpose of determining the matter. That is what I have considered is the appropriate course. CONSIDERATION Section 84(3) of the Native Title Act provides that:Another person is a party to proceedings if:(a)any of the following applies: (i)the person is covered by any of subparagraph s 66(3)(a)(i) to (v);(ii)the person claims to hold native title in relation to land or waters in the area covered by the application;(iii)the person’s interest in relation to land or waters may be affected by determination of the proceedings; and(b)the person notifies the Federal Court, in writing, that the person wants to be a party to the proceeding:(i)within the period specified in the notice under section 66; or(ii)if notice of an amended application is given under paragraph 66A(1)(e) – within the period specified in the notice under that paragraph. Mr Reid may fall within the terms of s 84(3)(a)(ii) and may also fall within the terms of s 84(3)(a)(iii). He has given notice in writing by his Form 5 application within the period set out in s 84(3)(b)(i). What follows from that is that Mr Reid is arguably a person covered by s 84(3) and, by force of that subsection, is a party to the proceedings. It is not necessary to finally decide that question. As I have indicated, it is clear that he himself does not claim to hold native title rights and interests in relation to the claim area of the KU claim to the exclusion of all others, but his Form 5 application indicates that he says that, as a member of the Kokatha People, his (asserted) primacy in the KU claim group in relation to the claim area may be affected by determination of the proceedings because his primacy has not been recognised by the KU claim group. If it were recognised, he says, only he could authorise the bringing of the claim. Section 84(5) of the NT Act also provides an avenue for a person to become a party to an application. It provides:The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so. Section 84(8) provides that the Court may at any time to order that a person, other than the applicant, cease to be a party to the proceedings. Further, s 84(9) provides that:The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:(a)the following apply:(i)the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and(ii)the person’s interests are properly represented in the proceedings by another party; or(b)the person never had, or no longer has, interests that may be affected by a determination in the proceedings.