Adnyamathanha People v State of South Australia [1999] FCA 402

FEDERAL COURT OF AUSTRALIA

Adnyamathanha People v State of South Australia [1999] FCA 402 NATIVE TITLE – Combination of claims –failure to serve notice thereof to interested party– whether order combining claims should be set aside. Native Title Act 1993 (Cth) ss 66(3), 64, 66A, 67(1), 190A Federal Court Act 1976 (Cth) ss 53A, 85A, 86B Federal Court Rules O 78 r 45

THE ADNYAMATHANHA PEOPLE & ORS v THE STATE OF SA & ORS NO SG 6001 OF 1998 O'LOUGHLIN J 29 MARCH 1999 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 6001 OF 1998

BETWEEN: THE ADNYAMATHANHA PEOPLE AND OTHERS

Applicant

AND: THE STATE OF SOUTH AUSTRALIA AND OTHERS

Respondent

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 29 MARCH 1999

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The notice of motion be dismissed. 2. There be no order as to costs. 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 SG 6001 OF 1998

BETWEEN: THE ADNYAMATHANHA PEOPLE AND OTHERS

Applicant

AND: THE STATE OF SOUTH AUSTRALIA AND OTHERS

Respondent

JUDGE: O'LOUGHLIN J

DATE: 29 MARCH 1999

PLACE: ADELAIDE

EX TEMPORE REASONS FOR JUDGMENT 1 Mr Mark McKenzie senior, acting on behalf of the Kujani Association or the Kujani people, filed a notice of motion in these proceedings on 5 March 1999 seeking an order that certain orders made by this court on 15 and 28 January 1999 be vacated. His application was supported by his affidavit in which he described himself as "An initiated man according to Kujani traditional Aboriginal law and elder." 2 He also said that he was an initiated elder of the Kujani, Wailpi, Bilaluppa and the Yadlioura people, whose traditional country is the area that is the subject of two native title determination applications. In his affidavit Mr McKenzie has used the name Kujani as an abbreviation to encompass the four separate people whom I have just named and I will adopt the same device. 3 The application for a determination of native title that is presently before the court is that found in action number SG 6001 of 1998. In fact that particular application is the combination of five separate claims and it is the orders of the court that combined these claims that Mr McKenzie wishes to attack. The largest of the five claims were those that were made in actions SG 6014 and 6015 of 1998, both of them having been made on behalf of Adnyamathanha people. They covered a large area of land to the east of Lake Torrens and extending well to the east of Lake Frome. The other three claims that were also made on behalf of the Adnyamathanha people included the claim in action SG 6001 of 1998 as well as two other smaller claims, and all three of those were within the boundaries of the two larger claims that were found in actions 6014 and 6015 of 1998. 4 The first three orders that the court made on 15 January were: "1. That application SG 6001 of 1998 be amended in terms of the annexed amended form 1 application so that henceforth it is combined to include the applications previously made in SG 6003 of 98, SG 6014 of 1998 and SG 6015 of 1998. 2. The said four actions be combined and continue in SG 6001 of 1998. 3. Application SG 6001 of 1998 be amended to include, in addition to Gordon Coulthard, the following applicants Angelina Stuart, Thathy Geraldine Anderson, and May Buzzacott." 5 Gordon Coulthard was the first‑named individual application in action 6001 of 1998, whilst Angelina Stuart, Thathy Geraldine Anderson and May Buzzacott had been named as applicants in the remaining actions. 6 It was also ordered on 15 January 1998 that application SG6001 of 1998 be henceforth referred to as the Adnyamathanha claim, and that the applicant be henceforth described as the Adnyamathanha people. The order of 28 January 1999 combined the native title application that had been made in the name of Beverley Paterson with action SG 6001 of 1998. The land that was the subject of this last‑mentioned application was in the north‑west section of the larger claim area that was now covered by SG 6001 of 1998. SG 6001 of 1998 was also amended to include Beverley Paterson as an applicant. 7 As recently as 26 March 1999 advice has been received that on that day the delegate of the National Native Title Registrar accepted SG 6001 of 1998 for registration under section 190A of the Native Title Act 1993 (Cth) ("the Native Title Act"). 8 The two claims for native title that had been made by Mr McKenzie on behalf of the Kujani people overlap those of the Adnyamathanha people, and it is that factor that has brought the Kujani people and the Adnyamathanha people into conflict. Mr McKenzie's complaint is twofold. First, he says that he or the Kujani people are respondents or should be treated as being respondents in proceeding SG 6001 of 1998. He says that they should have been served with notice that the Adnyamathanha people were moving to have the five claims combined, and that the failure to serve was a breach of the rules of natural justice. Secondly, he claims that the orders combining the five actions should be set aside in any event because they adversely affect the Kujani people's claim for native title. 9 In paragraph 13 of his affidavit in support of the orders that he seeks, Mr McKenzie has this to say: "My advisers have told me in effect that as a result of the orders bringing together the combined Adnyamathanha claims the combined claim can be expected to enjoy substantial legal and procedural advantage of the Kujani, Wailpi, Bilaluppa, and Yadlioura people's claims, and that the Kujani, Wailpi, Bilaluppa and Yadlioura claims are, to that significant extent, legally and procedurally prejudiced by the combined Adnyamathanha claim." 10 Mr McKenzie goes on to state in paragraph 14 of this affidavit that his cause for concern rests on the fact that: 10Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. "There are no initiated men named in or associated with the combined Adnyamathanha claim." 11 He added that there was no initiated man with knowledge of the boundaries of their traditional country and no-one with authority to possess that knowledge or to talk about it. Mr McKenzie says that these are matters of great concern to him, both in the interests of native title and for the Aboriginal people who are entitled to seek a determination of native title. 12 Arising as a result of the objections by Mr Collett, counsel for the Adnyamathanha people, I struck out paragraphs 14, 15, and 16 of Mr McKenzie's affidavit, they being the paragraphs devoted to his criticism of the Adnyamathanha people and to his claim that there were no initiated men within the Adnyamathanha people. I did that because in my opinion those serious claims are claims which are to be determined in the substantive proceedings, not in an interlocutory application of this nature. I formed the opinion, after having had the benefit of counsel's submissions, that the quality of the claims that Mr McKenzie mounted against the Adnyamathanha claimants, and indeed the quality of the Adnyamathanha claimants, were matters that are to be considered at a later date when a substantive application for a determination of native title is heard by this court. In my opinion they are not matters that are relevant to the issues that must be decided today. 13 The first question that I must decide is whether Mr McKenzie or the Kujani people or the Kujani Association should have been a party to these proceedings. I start by making the observation that there can be no doubt that the claims for native title that have been made by Mr McKenzie must be dealt with in the same proceeding that deals with the claims that have been made by the Adnyamathanha people. That is abundantly clear having regard to the provisions of subs 67(1) of the Native Title Act which reads as follows: "If two or more proceedings before the Federal Court relate to native title determination applications that cover, in whole or in part, the same area, the court must – [and I emphasise the word "must"] make such orders as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding." 14 The same thrust is to be found in order 78 rule 45 of the Rules of Court which deals with overlapping applications. Subrule (1) states: "If any party to an application has knowledge of the existence of another proceeding before the court that relates to a native title determination that covers, in whole or in part, the same area as that application, the party must immediately give notice to the court identifying the other application."