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." Subrule (2) goes on to say: "If the court received a notice under subrule (1) the court must convene a directions hearing in both proceedings together to consider the future conduct of the proceedings." 15 I have been informed from the bar table - and for the purposes of my reasons today I accept as accurate - that the larger of the claims made in the name of Mr McKenzie on behalf of the Kujani people completely encircled the claims made by the Adnyamathanha people. 16 So, as I say, it is abundantly clear that the claims of the Kujani people and Adnyamathanha people must be considered in unison. The combined effect of these provisions is to ensure that the existence of competing claims is made known to the court so that the court will not make orders without all relevant parties having first been given equal rights to protect their respective interests. Although it may not have been necessary to have had Mr McKenzie or the Kujani people formally named as a respondent in the Adnyamathanha proceedings, one or other of them should have been notified of the intention on the part of the Adnyamathanha people to seek the combination orders. 17 Mr Collett submitted to the contrary, relying upon the provisions of sections 64 and 66A of the Native Title Act; he claimed that there was no requirement to give Mr McKenzie or the Kujani people any prior notice, When one examines those particular provisions - and I do not intend to quote them extensively - one finds that there are circumstances where it becomes necessary for notice of the existence of certain claims to be given to the people named in subs 66(3). The first of the people so named is "any registered native title claimant in relation to any of the area covered by the application". Mr Collett points out that Mr McKenzie would come within that description, and he relies on that description as sufficient to say that subs 66(3)(i) is the temporal pointer to the service of notice of the application on a person such as Mr McKenzie. I do not cavil with the proposition that such a notice must be given to a person in the position of Mr McKenzie, but I do cavil with the proposition that it is, in terms of time, the only notice that must be given. 18 I say that because when one looks at the balance of subs 66(3), one sees that it refers to a variety of other people, including the Commonwealth, a local government body, a registered native title body corporate in relation to an area covered by the land - in other words, a variety of people who are entitled to receive and be given the notice to which subs (3) relates. I do not think that one can take subs (3) in isolation and ignore the important provisions of subs 67(1) and order 78 rule 45. 19 I turn, then, to the question of the combination orders. Even though I am of the opinion that Mr McKenzie, as a known registered native title claimant in relation to an area of land that is covered by the Adnyamathanha claims, should have been given notice of the application for combination orders, that does not lead automatically to a conclusion that these orders should not have been made or, having been made, that they should now be set aside. 20 The idea of combining two or more claims is the subject of specific attention in s 64 of the act. It is highly desirable to achieve a combination of claims. It is highly desirable to avoid overlapping claims. It is highly desirable to streamline the applications that are before the court for a determination of native title so that they are reduced to a minimum. 21 In the circumstances of this case, five different people, each claiming to represent the Adnyamathanha people, lodged claims for native title. In terms of geography, all these claims were capable of being encapsulated within the circumference of the two largest claims. In my opinion it should be said that it is a tribute to commonsense that these five people now recognise the importance and the value of combining their claims. 22 This does not of course assure them of ultimate success. It most certainly does not assure them that they will ultimately receive a grant of native title. But it does avoid the difficulties that the claimants, the court, and indeed all parties, would otherwise be confronted with if there were disputations between them as rival claimant groups. They will now be able to pool their joint resources in the pursuit of a grant of native title. When they do so, the merits of their claim will be scrutinised and it will be the subject of such criticism or complaint as Mr McKenzie and the Kujani people may care to ventilate. 23 Mr McKenzie, on behalf of the Kujani people, made two complaints. The first is a challenge to the quality of the claimants in the Adnyamathanha claim - that is the subject of there being, in his assertion, no initiated men. As I have said, that is not an issue that should be considered on this interlocutory application as it is one of substance and, if raised, it is to be raised at the substantial hearing. The second challenge, in effect, amounts to a complaint that, by unifying their claims, the Adnyamathanha people have now become a much stronger opponent to the Kujani people. This claim also includes a complaint that the Adnyamathanha people, by having had their claims accepted for registration, will, more likely than not, now receive funding to pursue their claim for native title in preference to the Kujani people. 24 There are, in my opinion, two answers to this complaint. The first is that there is no evidence before the court on these subjects, and so I am prevented from making any finding on those particular topics. Anything that I might say could only be classified as speculation. But the second is the more important answer. The second is that Mr McKenzie would wish to oppose the making of the combination orders because he perceives that, as a result, he and his people now have a stronger opponent. That to me is akin to criticising efficiency and preparation: far from being a warrant for criticism, the conduct of the Adnyamathanha people, in my opinion, was wholly justifiable. 25 For these reasons, I am not prepared to consider setting aside the combination orders that were made on 15 and 28 January - that is always assuming for present purposes that I would have had the power to do so having regard to the fact that the orders have been entered and sealed. But so that there may be no misunderstanding on the part of Mr McKenzie and the Kujani people, and so that they may not be left in any doubt, I feel that it is incumbent on me to make it abundantly clear that I would have made the combination orders that were in fact made even if Mr McKenzie had been served with notice of these proceedings, and even if his counsel had had every opportunity to address in full on all of the issues that have been canvassed today before me. 26 There remains for me to consider only the question of an application that I should order this matter back to the tribunal for mediation. Mr Collett's immediate answer was to say that it is already in mediation as a result of orders made by the tribunal before 30 September 1998 and the preservation of those orders for mediation in the transitional provisions of the act. I will proceed, nevertheless, upon the premise that I should consider the subject of mediation independently of what Mr Collett has said. 27 Three different legislative provisions were drawn to my attention. The first was the provision in section 53A of the Federal Court Act 1976 (Cth) ("the FCA") empowering the court to order mediation. The second was the provision in section 86B of the Native Title Act where, in subs (1), in the circumstances there postulated, it is stated that the Federal Court "must" refer certain applications to the tribunal for mediation. The third is also to be found in section 86B of the Native Title Act where subs (5) states that in the circumstances there postulated the court "may" refer a matter to the tribunal for mediation. 28 First, let me put to one side the provisions of the Federal Court of Australia Act. In my opinion, the provisions for mediation to be found in that Act are of general application and should take second place to an Act of Parliament, such as the Native Title Act, which contains its own credo for mediation. I do not think it would be appropriate to utilise the powers in the FCA when there are specific powers on the same subject in the Native Title Act. 29 I then turn to the provisions of the Native Title Act so far as they relate to mediation. Insofar as subs 86B(1) requires that the Federal Court "must" refer an application for mediation, the immediate answer to that is to say that the time mandated by the subsection has not yet arrived, and I do not have the power to make the necessary order. As to subs 86B(5), there is a discretion vested in the court that it may refer the whole or a part of a proceeding to the National Native Title Tribunal for mediation, but the exercise of that discretion is conditioned upon the court considering: "that the parties will be able to reach agreement on, or on facts relevant to, any of the matters set out in section 86A(1) or (2)." 30 As at this stage in these proceedings there is no information before the court upon which the court can form an opinion that the requirement that the parties will be able to reach agreement has been satisfied. I therefore decline to exercise such discretionary powers as I have under subs 86B(5). I therefore decline to make the orders sought on the notice of motion which has been filed in these proceedings. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate: Dated: 12 April 1999 Counsel for the Applicant The Kujani Association: Mr R Bower Solicitor for the Applicant The Kujani Association: Corsers Counsel for Gordon Coulthard: Mr A C Collett with him Mr G Harbord Solicitor for Gordon Coulthard: Johnston Withers Counsel for the Respondent: Mr R Smith Solicitor for the Respondent: Crown Solicitor Date of Hearing: 29 March 1999 Date of Judgment: 29 March 1999