FEDERAL COURT OF AUSTRALIA Adnyamathanha People No 1 v The State of South Australia [2004] FCA 950 NATIVE TITLE – leave to permit representation by unqualified person – consideration of circumstances in which leave should be granted Native Title Act 1993 (Cth) ss 66, 84, 85 Adnyamathanha People No 1 v The State of South Australia [2003] FCA 1377 cited Rubibi v State of Western Australia [2003] FCA 62 applied Harrington-Smith on behalf of the Wongatha People v State of Western Australia [2002] FCA 871 applied Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981 cited Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 1411 cited Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2002] FCA 730 cited Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 cited GORDON COULTHARD, ANGELINA STEWART, THATHY (GERALDINE) ANDERSON, MAY BUZZACOTT, VINCENT COULTHARD, GERTIE JOHNSON, STEWART PATTERSON, BEVERLEY PATTERSON & MARK McKENZIE ON BEHALF OF THE ADNYAMATHANHA PEOPLE v THE STATE OF SOUTH AUSTRALIA & OTHERS SG 6001 of 1998 MANSFIELD J 22 JULY 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SG 6001 OF 1998 BETWEEN: GORDON COULTHARD, ANGELINA STEWART, THATHY (GERALDINE) ANDERSON, MAY BUZZACOTT, VINCENT COULTHARD, GERTIE JOHNSON, STEWART PATTERSON, BEVERLEY PATTERSON & MARK McKENZIE ON BEHALF OF THE ADNYAMATHANHA PEOPLE APPLICANTS AND: THE STATE OF SOUTH AUSTRALIA & OTHERS RESPONDENTS JUDGE: MANSFIELD J DATE: 22 JULY 2004 PLACE: ADELAIDE REASONS FOR RULING 1 In this matter Brenton Richards on 28 April 2004 lodged a Notice of Intention to Become a Party to an Application, as he did in nine other applications for determination of native title under the Native Title Act 1993 (Cth) (the NT Act). It is not necessary to refer to the other applications in which his notice was lodged. The document by which the notice was given accorded with Form 5 in the forms applicable under the NT Act for becoming a party to an application in accordance with s 84(3) of the NT Act. The material in each application is the same. 2 Mr Richards' application was opposed by the claimants (except in one instance), by the State of South Australia, and by the native title representative body the Aboriginal Legal Rights Movement Inc (ALRM). Other parties to the respective applications took no position in relation to Mr Richards' application, save that certain pastoralists in this application and in three of the other applications opposed him being made a party to the proceedings, but without putting submissions in support of that opposition. 3 In a further application, called the Barngarla native title claim (matter SG 6011 of 1998), by reason of what appears to have been an administrative error, Mr Richards was already a party. The ALRM applied by notice of motion that he be removed as a party to that application. Ultimately, Mr Richards did not oppose that order. On 17 June 2004 I ordered that he be removed from the schedule of persons who are listed as parties to that application. It is not necessary to deal further with that application as it was not opposed. 4 Ultimately, after Mr Richards' application to be joined as a party to these and the other nine proceedings was part heard, it was not pursued. He was given leave to withdraw his application in each matter. It is not necessary to address the merits of his application in any detail in those circumstances. 5 At the commencement of the hearing, Mr Richards applied under s 85 of the NT Act for leave to be represented by Iain Greenwood. Mr Greenwood is not a legal practitioner. The application was opposed by the State and by the ALRM. After hearing submissions on that question, I gave Mr Richards leave to have Mr Greenwood respond to particular questions put to him in the course of the hearing and at Mr Richards' request. These are my reasons for that ruling. 6 This matter is not the first occasion on which Mr Greenwood has appeared by leave on an application by another person in a proceeding for the determination of native title under the NT Act. In an earlier hearing in this matter he was granted leave to appear for the Aboriginal Cultural Development Foundation Incorporated in its unsuccessful application to be joined as a party to this proceeding and in 14 other proceedings for the determination of native title listed in the schedule to the reasons for judgment on the application: see Adnyamathanha People No 1 v The State of South Australia [2003] FCA 1377 (the ACDF application). 7 In Rubibi v State of Western Australia [2003] FCA 62 at [11], Merkel J pointed out that there may be benefits in having a person represent a claimant group, particularly where the nominated representative of the claimant group may be inadequately, but nonetheless better, qualified to represent the group members than the group members themselves. His Honour expressed the reservation at [10] that such leave could be given at least where the party cannot afford representation by qualified legal representatives, and where the unqualified proposed representative has the capacity to be of assistance to the Court. The latter is an especially important qualification. 8 In Harrington-Smith on behalf of the Wongatha People v State of Western Australia [2002] FCA 871 (Harrington-Smith), Lindgren J at [20] said of s 85: 'What should be clearly understood is that leave is required because it is not to be taken for granted that a person who is not a solicitor or barrister will be allowed to represent a party. Perhaps Dolly Walker thinks that leave is granted as a matter of course just for the asking. This is not so and for good reason. Solicitors and barristers are qualified by education and training to represent parties and are subject to professional and curial disciplines and responsibilities. The requirement of leave is imposed for the reason that the court must be satisfied that it is in the interests of the administration of justice in all the circumstances that a party be represented by a person who is not a solicitor or barrister.' 9 I respectfully share those views expressed by Lindgren J in Harrington-Smith. 10 Section 85 contemplates leave being given to a party to be represented by another person where it is in the interests of the administration of justice in all the circumstances that a party be represented by such other persons. The interests of the administration of justice involve consideration of the capacity of the proposed other person properly to represent the party seeking leave to be so represented, and the interests of the other parties in the proceedings, as well as the efficient conduct of the proceedings. It is not simply a matter of an unrepresented person asserting an inability or inadequacy to present to the Court the matters which the unrepresented party wishes to represent that gives rise to leave to be represented by some other unqualified person. The other unqualified person must have the capacity to understand the nature of the Court's processes, and to serve the interests of the party that the unqualified person is proposing to represent. It must also appear that the other unqualified person will not unduly or unfairly disadvantage the interests of other parties by an inability to understand or conduct proceedings in a sensible and effective way. That is not to say that the other person must have all the skills of a legal practitioner. But it is to say that the proposed representation must be useful, in a real sense, in the conduct of the proceedings. 11 There have been several cases where an unqualified person has been found not to be able meaningfully to assist the Court, or the person who they seek to represent, and where leave given under s 85 has been refused or has been withdrawn: Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981 per Stone J at [14] - [16], Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 1411 per Stone J at [4] – [6], and Harrington-Smith at [18], [20]. 12 The circumstances of the present application provide an illustration of circumstances where, but for one consideration, it would have been appropriate to have declined to grant leave to Mr Greenwood to represent Mr Richards. The particular consideration was simply the timing of the proceedings. I granted the leave limited in the terms to which I referred because Mr Richards asserted at an early point that he was unable meaningfully to appear for himself, that he felt 'a bit over-awed by the situation' and that 'it's not worth me being here by myself' so that, if leave were refused, he might as well immediately not participate. 13 Mr Richards acknowledged that, if Mr Greenwood were allowed to speak for him, what Mr Greenwood said in his presence would be said on his behalf, and that he would take the chance that Mr Greenwood would have a sufficient knowledge of the law or of the Court processes to properly present his case on his behalf. Had limited leave not been given, I assessed that Mr Richards would simply not have had the opportunity to present his case to the Court at all, and that it would have been necessary to adjourn the proceedings to give him the opportunity to seek other assistance or at least for him to prepare more fully for the hearing to represent himself. The adjournment would have incurred extra expense and inconvenience to the other parties. And, as events turned out, the application of Mr Richards was not successful so an adjournment was not necessary. 14 I may have underestimated Mr Richards' capacity to represent himself in the proceedings. Perhaps he did not do himself justice in describing his capacity to represent himself. The limited leave I gave required him in the first instance to address, or respond to questions of, the Court, and enabled him to refer to Mr Greenwood such matters as he felt necessary to refer to Mr Greenwood. Mr Richards demonstrated to my mind an understanding of the nature of the application and what he wished to achieve by it. What he did not apprehend was that, as events transpired, his application was unnecessary. Had he had competent advice, that would have been clear to him. The sort of assistance of an unqualified person which s 85 contemplates would have, or should have, given him the focus to appreciate – as he ultimately did – that his application to be joined as a party to the proceedings was unnecessary. 15 As I indicated at the time, in circumstances such as the present, I do not propose to allow a similar situation to arise so I shall at a directions hearing in relation to any similar issue raise for consideration whether any application is to be made under s 85 for leave to be represented by another person, and I shall seek to resolve that issue before the hearing. In that way, the issue will be resolved in advance of the hearing and the parties will not have attended at considerable expense and with considerable preparation, much of which may have had to be re-incurred if the application has to be adjourned. 16 I turn to explain why, but for the particular exigencies to which I have referred, I would not have granted leave to Mr Richards to be represented by Mr Greenwood. I understand from the observations of Mr Richards that Mr Greenwood had played a significant role in the manner of preparation and presentation of his application. In my view, the material before me did not demonstrate that Mr Greenwood was capable of assisting Mr Richards in any meaningful way in the presentation of his application to be joined as a party to the proceedings. That was both at a procedural level and at a substantive level. At a procedural level, the application is incompetent. Section 84 of the NT Act sets out the ways in which persons may become parties to proceedings. Section 84(3) contemplates that a person may become a party to a particular proceeding if that person falls within the categories set out in s 84(3). In particular, that the person notify the Court in writing (the Form 5) within the period specified in the notice under s 66 that the person wants to be a party to the proceeding. If that procedure is followed, status as a party arises by operation of s 84. It is independent of any exercise of power by the Court: see Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2002] FCA 730. Section 66 sets out the manner in which the Registrar of the National Native Title Tribunal must provide notice of the filing of an application to certain persons and the native title representative body for the area covered by the application, as well as others who, when the application was filed, held a proprietary interest in the area of the application. The public is notified by advertisements containing the information prescribed in s 66(10). In each of the applications in which Mr Richards seeks to be joined as a party, the notification period ceased well before his application, and in particular in this application it ceased on 1 November 2000. Consequently, the form of his application, ostensibly in accordance with s 84(3), was inappropriate because it was not made during the notification period. That issue should have been clear from the judgment in the ACDF application. 17 The procedure available to Mr Richards to become a party in the circumstances is that provided for in s 84(5) of the NT Act. It provides: 'The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings.' 18 In my view, that contemplates in a particular proceeding an application by notice of motion supported by the appropriate affidavit material upon which the applicant relies. See O 78 r 8(4) and (5) of the Federal Court Rules. 19 There was no such notice of motion. Nor was any affidavit evidence adduced. The material adduced by Mr Richards in support of his application was limited. It comprised the 'Form 5' document which claimed the way in which his interest in the claim areas existed and may be affected as follows: 'As the existing registered Barngarla third party we need to extend those rights to all of the grounds of the Barngarla Institution affected by native title claims indicated in accompanying letter.' The accompanying letter was a typed document signed, but not sworn, by Mr Richards and dated 1 February 2004. It was expressed to be by Mr Richards on behalf of the Richards family as descendants of the late Fred Richards and Lizzy Eyles. It asserted a desire to 'preserve statutory and any common law rights' under a series of enactments described as follows: 'Aboriginal and State Heritage Act, Inheritance Act, Pastoral Act, Crown Land Act, Administration and Probate Act, and Trades [sic] Practise [sic] Act'. Nothing is said about the 'Barngarla Institution'. Mr Richards signed the letter as the spokesperson of the Wambiri Aboriginal Corporation. Nothing is said about the nature of that body. 20 The letter does not, in my view, describe in any cogent way the rights or interests which Mr Richards seeks to assert and which may be affected by a determination in these or the other proceedings in which he made his application. 21 That letter was accompanied by a one page handwritten sheet in which he referred to 'our existing and statutory common law rights as descendants of Barngarla People', and the desire to be able to 'take our people "on the big walk" unhindered'. With that material was a map principally of the Eyre Peninsula depicting 'Barngarla territory', a map entitled 'Schmidt 1919: Detail of Map', an unattributed one page typed document purporting to record 'the history as told by Mrs Croft', and a map of the similar area entitled 'big walk journeys'. 22 Apart from the material not being in a form which the Evidence Act 1995 (Cth) requires (see s 82(1) of the NT Act), it is vague and hard to understand. It does not clearly identify what interests Mr Richards wishes to assert, or how they may be affected by a determination of native title in these (or the other) proceedings. The evidentiary deficiencies to which I have referred mirror to a significant extent the deficiencies in the material presented by the ACDF in the ACDF application. Mr Greenwood was directly involved in that application. He appears not to have learned much about the need for proper evidentiary material to be presented, or the clear expression of the claimed interests and how they may be affected by the proposed determinations in this and the other proceedings, to pursue an application under s 84(5) of the NT Act. Any competent person advising Mr Richards would have pointed out those shortcomings and would have urged Mr Richards not to proceed on the basis of unsatisfactory material. 23 The material does not indicate the basis upon which Mr Richards seeks to be joined as a party. If it is on behalf of members of the Richards family, Mr Richards has not demonstrated how he has the authority to appear on behalf of those persons. If it is for an entity called the Barngarla Institution, or for an entity called the Wambiri Aboriginal Corporation, he has provided no foundation for indicating the interests of those entities or how he is authorised by them to appear. If he is appearing on his own behalf only, his documents do not say so. 24 The documents do not indicate with any clarity what particular interests Mr Richards seek to protect through his application. In the course of the hearing, before he determined to withdraw it, I asked questions about that. Mr Richards did not assert any common law rights which, he claimed, may be adversely affected by a determination of native title. He limited his claim to the desire to assert certain statutory rights under the Aboriginal Heritage Act 1988 (SA) and s 42 of the Pastoral Act 1936 (SA). In fact, this Act was repealed by the Pastoral Land Management and Conservation Act 1989 (SA). He made those submissions through Mr Greenwood. Certain of the claims are specious. A claim based upon the Administration and Probate Act 1919 (SA) (unspecified section) amounted to a right to 'access' that Act, that is to be able to apply under that Act for a share of the estate of a deceased person in circumstances where the deceased person has not otherwise provided for the applicant in the will. It has nothing to do with native title. The claim under the Pastoral Act 1936 (SA) was not further explained. The claim under the Aboriginal Heritage Act 1988 (SA), by reference to the sections relied upon (ss 6, 12, 13, 15, 21, 23, 29, 35 and 42) were to assert statutory rights which are not inconsistent with the determination which might be made in these proceedings. 25 What the material does not show is whether Mr Richards claims to be a member of the native title claim groups in each of the applications (he is accepted by the ALRM as fitting within the description of the native title claim groups in certain of the applications), or whether the determination may result in a determination which is consistent with or inconsistent with the rights which he asserts. He does not indicate whether he is putting himself forward as a competing native title claimant, either as a sole person (which would be difficult) or on behalf of a group and authorised on behalf of a group of competing native title claimants. He does not indicate what native title rights and interests might be claimed by such a competing group which would be inconsistent with, and adversely affected by, a determination of native title in this and the other applications in the terms sought. He does not assert that members of the native title claim group are not authorised in each application to have presented the claims in the terms in which they did. It is unclear whether what he seeks to do is simply, as a member of the native title claim group, to contest some incidental aspect of the claim or the way in which it is being conducted. If his claim is to assert substantive native title rights different from, and inconsistent with, those being presented by a native title claim group through its authorised representatives where he is a member of that claim group, the appropriate procedure is to review the authorisation of the applicant persons under s 251B of the Act and then, depending upon the outcome of that reviewed authorisation, to seek replacement of the applicants under s 66B. 26 What is apparent, at a substantive level, is that the material presented in support of the application does not demonstrate an interest or interests which may be enjoyed by Mr Richards as that term is used in s 84(5): see Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 (Arakwal) at 7 – 9, an expression of 'interest' followed in a number of cases since that time: see cases referred to in the ACDF decision at [3] – [4]. See Arakwal per Black CJ at 7 – 8. Nor does the material demonstrate how any such interests may be affected by a determination of native title in these or the other proceedings. 27 The picture which emerges, in my view, is that Mr Greenwood has largely assisted Mr Richards in making the application in the manner in which he did and in the manner in which it is expressed. It has similar deficiencies to those which emerged from the ACDF application. There is nothing to think that Mr Greenwood has learnt from that experience or that he otherwise has the necessary skill to be able to meaningfully assist Mr Richards at least in an application to be joined as a party to this or other proceedings under s 84(5) of the NT Act. As I have indicated, but for the particular exigencies of the present matter, I would not have granted leave to Mr Richards to be represented by Mr Greenwood. In the particular circumstances I gave that leave in the limited terms referred to. If similar circumstances arise, obviously the need for evidence to address the deficiencies is obvious. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Ruling herein of the Honourable Justice Mansfield. Associate: Dated: 21 July 2004 Counsel for Brenton Richards B Richards appeared in person with I Greenwood Counsel for the Adnyamathanha People and the Aboriginal Legal Rights Movement: S Phillips Solicitor for the Adnyamathanha People: Johnston Withers Solicitor for the Aboriginal Legal Rights Movement: Aboriginal Legal Rights Movement Counsel for the State of South Australia: DT Seal Solicitor for the State of South Australia: The Crown Solicitor for the State of South Australia Counsel for various pastoralists: W Webster Solicitor for various pastoralists: Mellor Olsson Date of Hearing: 17 June 2004 Date of Ruling: 22 July 2004