Sparrow v State of South Australia (Mirning Eastern Sea and Land Claim)

• Jurisdiction: Australia Federal only
• Judgment Date: 04 November 2021
• Neutral Citation: [2021] FCA 1357
• Court: Federal Court
• Date: 04 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 2016
Judgment 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...