Kokatha People v State of South Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 16 July 2007
• Neutral Citation: [2007] FCA 1057
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Kokatha People v State of South Australia [2007] FCA 1057

NATIVE TITLE – respondent to an application for a native title determination seeking a determination of native title in his favour in virtue of s 225 of the Native Title Act 1993 (Cth) – respondent’s own application previously discontinued – whether in the circumstances the Court has jurisdiction to make a positive determination in respondent’s favour – whether respondent can only set up own native title defensively.

Native Title Act 1993 (Cth) s 1, s 10, s 13, s 61, s 61A, s 62, s 63, s 66, s 67, s 68, s 84, s 84C, s 94A, s 213, s 225, s 251B

Western Australia v Ward (2000) 99 FCR 316 disapproved

Moses v State of Western Australia [2007] FCAFC 78 considered

McKenzie v South Australia (2005) 214 ALR 214 considered

Kokatha Native Title Claim v South Australia (2005) 143 FCR 544approved

Akiba v Queensland (No 2) (2006) 154 FCR 513 considered

Munn v State of Queensland [2002] FCA 486 considered

Rubibi Community v State of Western Australia (2002) 120 FCR 512 considered

Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315 considered

Harrington-Smith v State of Western Australia (No 9) [2007] FCA 31 considered

Western Australia v Ward (2002) 213 CLR 1 considered

Jango v Northern Territory (2006) 152 FCR 150 cited

Jango v Northern Territory [2007] FCAFC 101 cited

Quall v Northern Territory [2007] FCAFC 46cited

The Wik Peoples v The State of Queensland (1994) 49 FCR 1 cited

Gumana v Northern Territory (2005) 141 FCR 457 cited

Ward v Western Australia (1998) 159 ALR 483 considered

2 Smith’s Leading Cases 776 (12^th ed, 1915)

KOKATHA PEOPLE, BARNGARLA PEOPLE AND ARABUNNA PEOPLE v STATE OF SOUTH AUSTRALIA & ORS

No SAD 6013 of 1998

FINN J

16 JULY 2007

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 6013 OF 1998

BETWEEN:	KOKATHA PEOPLE First Applicant BARNGARLA PEOPLE Second Applicant ARABUNNA PEOPLE Third Applicant
AND:	STATE OF SOUTH AUSTRALIA & ORS Respondents
JUDGE:	FINN J
DATE OF ORDER:	16 JULY 2007
WHERE MADE:	ADELAIDE

THE COURT DECLARES THAT:

1. As these proceedings are presently constituted, a determination of native title cannot be made in favour of Mark McKenzie and other Kuyani under the provisions of the Native Title Act 1993 (Cth).

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 6013 OF 1998

BETWEEN:	KOKATHA PEOPLE First Applicant BARNGARLA PEOPLE Second Applicant ARABUNNA PEOPLE Third Applicant
AND:	STATE OF SOUTH AUSTRALIA & ORS Respondents

JUDGE:	FINN J
DATE:	16 JULY 2007
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 The motion filed in this matter by the State of South Australia raises a controversial question of construction of the Native Title Act 1993 (Cth). This is whether this Court has jurisdiction under the Act to make a determination of native title in favour of a person or group of persons that has not made a native title determination application under s 61 of the Act in relation to the area in question but who is a respondent to such an application brought on behalf of another claimant group to which that respondent does not belong. The State’s contention is that a native title determination can only be made in accordance with the provisions of the NT Act and, in particular, sections 10, 13, 61 at 225 – hence the above question must be answered in the negative.

2 The motion is opposed by the person against whom it is directed, Mark McKenzie, by the relevant representative body, the Aboriginal Legal Rights Movement Inc (“the ALRM”) and by the Commonwealth. The Commonwealth’s submission, supported by the ALRM and Mr McKenzie, is the Act on its proper construction does not deny the Court’s jurisdiction in the way propounded by the State. Having regard in particular to the language of s 225 of the NT Act, the Court is entitled to make a determination that recognises native title rights on the part of any person or group whom the evidence establishes holds native title irrespective of whether that person or group has an application for a determination of native title under s 61 on foot or not.

3 In its submission the ALRM has suggested that the State’s motion has drawn attention to an allegedly inconsistent aspect of the NT Act scheme.

4 While I have concluded that the State’s contention should be upheld, I recognise that the question is one upon which judicial opinion in this Court is divided – cf Western Australia v Ward (2000) 99 FCR 316 at [191]-[194] and Moses v State of Western Australia [2007] FCAFC 78 at [18] – and that I am disagreeing with views expressed by judges having considerable experience in native title matters.

Background (a) The Overlap Claim

5 On 8 September 2005 orders were made under s 67 of the NT Act that three native title determination applications – the Kokatha Native Title Claim, the Barngarla Native Title Claim and the Arabunna Peoples Native Title Claim – were to be dealt with in the same proceeding to the extent that they covered the same area of land and waters (“the overlap proceedings”). The State’s motion has been filed in this proceeding.

(b) Mark McKenzie and the two Kuyani Native Title Claims

6 On 19 September 1995 what I will call the first Kuyani Native Title Claim was lodged. Mr McKenzie later became the named applicant for that claim. It was amended on no less than six occasions which altered substantially the composition of the claim group and the lands the subject of the claim. The claim area overlapped the Kokatha Native Title Claim.

7 On 27 January 2005 I ordered that this claim be struck out. There was, in my view, no arguable basis upon which Mr McKenzie could be said to have satisfied the requirements of s 61(4) and s 62(1), (iv) and (v) relating to his authorisation to bring the claim: McKenzie v South Australia (2005) 214 ALR 214. Prior to this Mr McKenzie had, by virtue of s 84(3) of the NT Act become a respondent party to the Kokatha Native Title Claim.

8 In Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 Mansfield J held that the striking out of the first Kuyani claim did not of itself result in Mr McKenzie ceasing to be a party to the Kokatha claim. His Honour went on to note that the strike out did not necessarily mean that Mr McKenzie might not nonetheless be a person whose interests may be affected by the Kokatha claim and be eligible to be a party under s 84(3) of the NT Act for that reason.

9 On 16 February 2006 Mr McKenzie and others lodged the second Kuyani claim (the Kuyani-Wilyaru People Native Title claim). It again overlapped in part the area of the overlap proceedings. Orders were made in these proceedings that the new claim be dealt with to the extent of the overlap. The new claim suffered from the same vices that affected the first Kuyani claim – a matter raised by the ALRM. A notice of discontinuance was filed by the Kuyani-Wilyaru applicants on 31 May 2006 and an order was made in the overlap proceedings that orders made in it regarding the Kuyani-Wilyaru application cease to be operative. Mr McKenzie nonetheless remains a respondent in the overlap proceedings apparently on the basis that, notwithstanding the discontinuance, he claimed to hold native title in relation to land in the area covered by the proceedings: s 84(3)(a)(ii); or else his interests might be affected by a determination in it: see s 84(3)(a)(iii). I would note in passing that it is well settled that a native title interest suffices as “an interest” for the purposes of becoming a party to a proceedings under s 84(3)(a)(iii) and (5) of the NT Act: Akiba v Queensland (No 2) (2006) 154 FCR 513 at [34]; Munn v State of Queensland [2002] FCA 486 at [8]; Rubibi Community v State of Western Australia (2002) 120 FCR 512; Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315 at [27].

10 Mr McKenzie has not filed a fresh application (though varying explanations have been given for this). He has, nonetheless and in belated compliance with an order, filed a draft statement of facts and contentions in the overlap proceedings. He disputes the Kokatha claim to have inhabited the claim area in the overlap proceedings prior to sovereignty. He asserts that the Kuyani people had at that time native title rights and interests in a stipulated part of that area. His statement concludes:

“3.4 In the event that a determination is made in these proceedings that only the Applicants, or any of them, hold the common or group rights as native title holders, and having regard particularly to s 61A of the Native Title Act 1993, Mr McKenzie’s lawful interest as native title holder (and those of other Kuyani in his position) will not be able to adequately recognized, and such a determination is opposed.

3.5 Again having regard particularly to s 61A of the Native Title Act 1993, and for the same reasons as advanced in the previous paragraph, Mr McKenzie opposes a determination that native title does not exist over the claim area.

3.6 Mr McKenzie seeks a determination under section 225 of the Native Title Act 1993 that the common or group rights in respect of the hachured area on the attached map are held by the Applicants on a shared basis with Mr McKenzie and other Kuyani with ancestral connection to that area, in accordance with Murranginhi traditional law and custom.”

11 The point to be made about the above subparagraphs is that, while subparas 3.4 and 3.5 are defensive in purpose (i.e. they...