Croft v State of South Australia (Port Augusta Overlap Proceeding) (No 2)

• Jurisdiction: Australia Federal only
• Judge: WHITE J
• Judgment Date: 26 April 2019
• Neutral Citation: [2019] FCA 581
• Date: 26 April 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Croft v State of South Australia (Port Augusta Overlap Proceeding) (No 2) [2019] FCA 581

File numbers:	SAD 6011 of 1998
Judge:	WHITE J
Date of judgment:	26 April 2019
Catchwords:	NATIVE TITLE – application for one of the three overlapping claims for the determination of native title to be summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and/or r 26.01 of the Federal Court Rules 2011 (Cth) – effect of findings in the determination of nearby claims – effect of the Barngarla People having been recognised as holding native title over area separating the claim area from the area over which the claim has been recognised as having native title – effect of claim groups being members of different cultural groups – consideration of historical and ethnographic material provided in resistance to the summary judgment application – application allowed and native title claim summarily dismissed.
Legislation:	Federal Court of Australia Act 1976 (Cth) s 31A Native Title Act 1993 (Cth) ss 190A, 190B, 190C Federal Court Rules 2011 (Cth) r 26.01
Cases cited:	Adnyamathanha No 1 Native Title Claim Group v State of South Australia (No 2) [2009] FCA 359 Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 Croft on behalf of Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9; (2015) 325 ALR 213 Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724 Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 3) [2018] FCA 552 Dandaven Pty Ltd v Harbeth Holdings Pty Ltd [2008] FCA 955 De Rose v State of South Australia [2002] FCA 1342 De Rose v State of South Australia [2003] FCAFC 286; (2003) 133 FCR 325 Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 McNamara on behalf of the Gawler Ranges People v State of South Australia [2011] FCA 1471 Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 North Australian Cement Ltd v Federal Commissioner of Taxation [1989] FCA 447, (1989) 20 ATR 1058 Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26; (2010) 266 ALR 537 Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36 Starkey v State of Australia [2014] FCA 924 Western Australia v Fazeldean (No 2) [2013] FCAFC 58; (2013) 211 FCR 150
Date of hearing:	6 March 2019
Registry:	South Australia
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	82
Counsel for the Barngarla and Nukunu Applicants:	Mr D O’Gorman SC with Mr S Blewett
Solicitor for the Barngarla Applicants:	Norman Waterhouse
Solicitor for the Nukunu Applicants:	Sykes Bidstrup
Counsel for the Kokatha Applicants:	Mr V Hughston SC
Solicitor for the Kokatha Applicants:	South Australian Native Title Services
Counsel for the State of South Australia:	Mr P Tonkin
Solicitor for the State of South Australia:	Crown Solicitor’s Office
Counsel for the Commonwealth of Australia:	Ms C Taggart
Solicitor for the Commonwealth of Australia:	Australian Government Solicitor
Counsel for the Commercial Fishing Licence Holders, Local Councils and South Australia Apiarists Association:	Ms C Divakaran
Solicitor for the Commercial Fishing Licence Holders, Local Councils and South Australia Apiarists Association:	Mellor Olsson

ORDERS

		SAD 6011 of 1998
BETWEEN:	BARRY CROFT (and others named in the Schedule) (Barngarla Native Title Claim (SAD 6011 of 1998)) First Applicant ; ROSALIE ELIZABETH TURNER (and others named in the Schedule) (Nukunu Native Title Claim (SAD 6012 of 1998)) Second Applicant ; ANDREW STARKEY (and others named in the Schedule) (Kokatha #3 Native Title Claim (SAD 83 of 2016)) Third Applicant
AND:	STATE OF SOUTH AUSTRALIA (and others named in the Schedule) Respondent

JUDGE:	WHITE J
DATE OF ORDER:	26 APRIL 2019

THE COURT ORDERS THAT:

1. On the Interlocutory Application of the Barngarla and Nukunu Claim Groups filed on 26 November 2018 the Kokatha #3 Native Title Claim SAD83/2016 is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

1. The question before the Court is whether one of three overlapping claims for the determination of native title should be summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and/or r 26.01 of the Federal Court Rules 2011 (Cth) (the FCR).

2. Each of the Barngarla, Nukunu and Kokatha Peoples has filed an application for the determination of native title under the Native Title Act 1993 (Cth) (the NT Act) over an area which includes the City of Port Augusta and areas proximate to it. These are the Barngarla Native Title Claim (SAD6011/1998), the Nukunu Native Title Claim (SAD6012/1998), and the Kokatha #3 Native Title Claim (SAD83/2016). On 21 August 2017, the Court ordered that, to the extent that the claims overlapped, they proceed in Action No SAD6011/1998 and that the proceedings be known as the Port Augusta Overlap Proceeding.

3. On 26 November 2018, the Barngarla and the Nukunu Peoples filed a joint interlocutory application seeking an order pursuant to s 31A(2) of the FCA Act and/or r 26.01 of the FCR for the summary dismissal of the Kokatha #3 Claim on the basis that:

1. the Kokatha have no reasonable prospect of successfully prosecuting their application; and/or

2. it is otherwise an abuse of the process of the Court.

4. The Barngarla and the Nukunu made the application following the refusal by the High Court on 19 October 2018 of special leave to appeal from the judgment of the Full Court of this Court in Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36. By that judgment, the Full Court had, by majority, dismissed an appeal from the judgment of Mansfield J in Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 (LTOP (No 3)) dismissing each of the separate claims for the determination of native title over Lake Torrens made by the Kokatha, Barngarla and Adnyamathanha Peoples.

5. The Kokatha People opposed the interlocutory application of the Barngarla and the Nukunu and are supported in that opposition by the Commonwealth.

6. The State of South Australia supported the submission of the Barngarla and the Nukunu that the Kokatha #3 Claim has no reasonable prospects of success. It took a neutral position with respect to the submission that the proceedings constitute an abuse of process. No other respondent to the Port Augusta Overlap Proceeding sought to be heard on the application.

7. Both the...