FEDERAL COURT OF AUSTRALIA Sumner v State of South Australia (Ngarrindjeri Native Title Claim Part A) [2017] FCA 1550 File number: SAD 6027 of 1998 Judge: WHITE J Date of judgment: 11 December 2017 Catchwords: NATIVE TITLE – removal of persons who constitute the Applicant – application to change the designation of the proceedings so as to honour a previous member of claim group. Legislation: Native Title Act 1993 (Cth) s 66B Federal Court Rules 2011 (Cth) rr 2.13, 34.130 Cases cited: I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215 Lennon v South Australia [2010] FCA 743; (2010) 217 FCR 438 Date of hearing: 11 December 2017 Registry: South Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 12 Counsel for the Applicant: Mr S Berg Solicitor for the Applicant: Berg Lawyers Counsel for the State of South Australia: Ms G Reid Solicitor for the State of South Australia: Crown Solicitor's Office Counsel for the Local Government interests: Mr C Alexandrides Solicitor for the Local Government interests: Norman Waterhouse Counsel for the Fishing Licence holders: Ms A Gillam Solicitor for the Fishing Licence holders: Mellor Olsson ORDERS SAD 6027 of 1998 BETWEEN: BASIL SUMNER (and others named in the Schedule) (Ngarrindjeri Native Title Claim Part A) Applicant AND: STATE OF SOUTH AUSTRALIA (and others named in the Schedule) Respondent JUDGE: WHITE J DATE OF ORDER: 11 DECEMBER 2017 THE COURT ORDERS THAT: 1. Ms Laura Agius and Mr Peter Rigney be removed from the persons who constitute the Applicant and that from now on the Applicant comprise the remaining persons listed as the current applicants. 2. The order sought by paragraph 2 of the interlocutory application lodged on 30 November 2017 is refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. EX TEMPORE REASONS FOR JUDGMENT WHITE J: 1 I am dealing with an interlocutory application concerning the parties to the proceedings presently known as the Ngarrindjeri Part A Native Title Application and concerning its future designation. 2 Since the proceedings were commenced in 1998, some of the persons constituting the Applicant have died. On 14 September 2016 the Court made orders pursuant to s 66B(2) of the Native Title Act 1993 (Cth) (the NT Act) that the 20 persons who now comprise the Applicant replace the then current applicants. These 20 persons have continued to comprise the Applicant to the present time. 3 The application for determination of the native title in the area referred to as Ngarrindjeri Part A is now listed for a consent determination later this week, on 14 December 2017. On 6 December 2017, the Applicants filed an interlocutory application seeking two orders. First, that Mr Peter Rigney and Ms Laura Agius be removed from the persons constituting the Applicant and, secondly, that the proceedings be given the designation "Mathew Rigney and Others v State of South Australia and Others". 4 The first order is sought to give effect to a resolution passed by the Ngarrindjeri Native Title Claim Group at a meeting held on 9 November 2017. That resolution was: In SAD6027/1998, all persons acting as applicants who are deceased, namely Laura Agius, or who are in seriously poor health, namely Mr Peter Rigney, are no longer to be applicants for the application. 5 Section 66B(1)(a) of the NT Act provides that one or more members of a native title group may apply for an order that certain members of the group replace the current applicant on the grounds that persons have died or become incapacitated. The Applicants seek the first order pursuant to that provision. The affidavit of Mr Darrell Sumner made on 30 November 2017 indicates that Ms Laura Agius is deceased and that Mr Peter Rigney is in seriously poor health. It also indicates that the resolution of the native title group on 9 November 2017 was passed at a properly constituted meeting of the Ngarrindjeri Native Title Claim Group. 6 I am satisfied that it is appropriate to make the first order, and will make it. The effect of that order is that Mr Basil Sumner will become the lead Applicant. 7 The Applicants seek the second order as a means of honouring the late Mathew Rigney who died in 2011. He was the first chairperson of the Ngarrindjeri Native Title Management Committee, a highly respected member of the Ngarrindjeri and he worked actively to progress the native title claim. It is understandable that the Applicants wish to honour him. Mr Mathew Rigney was one of eight persons who were removed from the persons comprising the Applicant in the proceedings by the Court's order on 14 September 2016. 8 It is common for the Court to give native title proceedings a designation. The Court has a discretion to do that arising from the provisions in rr 2.13 and 34.130 of the Federal Court Rules 2011 (Cth). Generally, the designation which the Court has given has been a geographical name or a name referring in some way to the claim group. The present proceedings are an illustration of the Court's practice in that respect as they have been known as the Ngarrindjeri Native Title Claim. Since 27 July 2017, they have been known as Ngarrindjeri Part A and Ngarrindjeri Part B. 9 Although the Court is sympathetic to the Applicant's wish to honour the late Mr Mathew Rigney, it is not appropriate to do so in the manner they propose. First, the proceedings have now been known for a very long period as the Ngarrindjeri Native Title Claim, and there is the potential for confusion if there is a late change in the designation. 10 Secondly, the proposed designation would imply that Mr Mathew Rigney continues to be a member of the current Applicant group. Because of his death, it is not possible for Mr Mathew Rigney to constitute the Applicant. Ordinarily, the persons constituting an applicant in native title proceedings, as indeed in other proceedings in the Court, must be live persons. There are some exceptions to this. See, for example, Lennon v South Australia [2010] FCA 743; (2010) 217 FCR 438 and I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215. However, the present case is not one of those kinds. That being so, the use of the designation proposed by the Applicant has the potential to be misleading. 11 Thirdly, the designation proposed by the Applicant is of a different kind from those used in relation to other native title applications. 12 In those circumstances, although the Court is sympathetic to the Applicant's wish to honour the late Mr Mathew Rigney, it is not appropriate to make an order altering the designation currently given to the proceedings. Accordingly, the order sought by paragraph 2 of the interlocutory application lodged on 6 December 2017 is refused. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate: Dated: 21 December 2017 SCHEDULE OF PARTIES SAD 6027 of 1998 Applicant: DARRELL PHILLIP SUMNER Applicant: LUKE TREVORROW Applicant: DARYLE RIGNEY Applicant: GRANT RIGNEY Applicant: LAURIE RANKINE JNR Applicant: EUNICE ASTON Applicant: RITA LINDSAY JNR Applicant: MARSHALL CARTER Applicant: MAJOR SUMNER Applicant: DAVID CROMPTON Applicant: OWEN LOVE Applicant: GORDON RIGNEY JNR Applicant: LEWIS RIGNEY Applicant: JORDAN SUMNER Applicant: CYRIL TREVORROW Applicant: DONALD ROBERTS Respondent: SOUTH AUSTRALIAN RECREATIONAL FISHING ADVISORY COUNCIL INC (T/AS RECFISH SA) Respondent: SOUTH AUSTRALIAN APIARISTS ASSOCIATION INC Respondent: ALEXANDRINA COUNCIL Respondent: RURAL CITY OF MURRAY BRIDGE Respondent: DISTRICT COUNCIL OF YANKALILLA Respondent: CITY OF VICTOR HARBOR Respondent: COORONG DISTRICT COUNCIL Respondent: CHRISTOPHER DAVID BONSOR Respondent: JANE BONSOR Respondent: BRENTON LUSH FAMILY TRUST Respondent: PATRICIA ANN BRINKWORTH Respondent: THOMAS KENNETH BRINKWORTH Respondent: CAPARRA PTY LTD Respondent: NORMAN HOWARD CHELLEW Respondent: GREGORY JAMES DAVIS Respondent: IAN JAMES DAVIS Respondent: RHONDA JUNE DAVIS Respondent: CHERYL ANNE DOECKE Respondent: COLLEEN ELIZABETH DOECKE Respondent: WARREN NOEL DOECKE Respondent: ALLAN IVAN FIEGERT Respondent: DARYL WAYNE FRAHN Respondent: CONSTANCE ETHEL FRASER Respondent: WILLIAM GEOFFREY FRASER Respondent: CAROLE LYNNE GREGOR Respondent: KENNETH ALAN GREGOR Respondent: EDWARD JOHN GRIVELL Respondent: MARGARET EVA GRIVELL Respondent: GUMBURRA PARK PTY LTD Respondent: DAVID MARK HERRMANN Respondent: JCWS HOLDINGS PTY LTD Respondent: DAVID ANDREW KLEINIG Respondent: BENANN PTY LTD Respondent: PAUL BARTLETT Respondent: KYM BRADLEY BARTLETT Respondent: BEVERLEY KAYE BARTLETT Respondent: BALAGUP PTY LTD Respondent: MAUREEN JOAN ALTMANN Respondent: KAREN MARGARET ALTMANN Respondent: JOHN COLIN ALTMANN Respondent: DAVID JOHN ALTMANN Respondent: MERVYN H MARWOOD Respondent: KENNETH MAX LUTZE Respondent: JENNIFER MARIE LUTZE Respondent: GAVIN SHAYNE LUTZE Respondent: KOOLAH PROPRIETORS PTY LTD Respondent: LILKA PTY LTD Respondent: DEANNA BARBARA LUTZE Respondent: ROBYN LENNOX MAUL Respondent: TREVOR CHARLES MAUL Respondent: GRANT TERENCE MCANANEY Respondent: JOHN WILLIAM MCANANEY Respondent: JANET MARY MCFARLANE Respondent: CHRISTOPHER PAUL MICKAN Respondent: SANDRA CLAIRE NASH Respondent: WILLIAM PATRICK NASH Respondent: GLORIA JUNE NEINDORF Respondent: LAURENCE JOHN OLIVER Respondent: LINDSAY WILLIAM PARKER Respondent: JOANNE L PFEIFFER Respondent: JOYCE ELFRIEDA POPE Respondent: MURRAY CHARLES POPE Respondent: ROMA DOWNS PASTORAL CO PTY LTD Respondent: JASON SCHOFIELD Respondent: JOANNE ROBYN SCHULZ Respondent: RICKY STEPHEN SCHULZ Respondent: KEITH LOCKE SCOBIE Respondent: MARK STEVEN SCOBIE Respondent: NEVILLE WAYNE STOPP Respondent: SUNRISE DAIRIES PTY LTD Respondent: TAUWITCHERE PTY LTD Respondent: CATHERINE SUSAN THOMAS Respondent: LEWIS KINGSLEY THOMAS Respondent: PETER THORLEY Respondent: SHIRLIE THORLEY Respondent: RAELENE IVY THORPE Respondent: TREVOR STEWART THORPE Respondent: SPENCER MORTON TWELFTREE Respondent: WILLIAM STEPHEN VARCOE Respondent: GRAEME COLIN VERRALL Respondent: HELEN ANN WALTER Respondent: VICTOR LAWRENCE WALTER Respondent: WELLINGTON LODGE PTY LTD Respondent: DONALD REX SEELIGER Respondent: TIMOTHY JAMES SEELIGER Respondent: DEBBIE SHARAM Respondent: SMART DAIRY TRUST Respondent: BRIAN GEOFFREY STOPP Respondent: GORDON WARREN STOPP Respondent: WEST CREEK PTY LTD Respondent: BARRY WESTLEY Respondent: PATRICIA LEA WESTLEY Respondent: WILLOW CREEK PROGRESS ASSOCIATION INC Respondent: GRAHAM WILLIAM YELLAND Respondent: PETER RUSSELL WILSON Respondent: KENNETH ANDREWS Respondent: ERNEST JAMES ALLEN Respondent: JOHN FRANKLIN ASHBY Respondent: JOHN MAXWELL ATKINSON Respondent: ROBERT JOHN BUTSON Respondent: RODNEY STEVEN JAMES AYRES Respondent: PETER BARWICK Respondent: TIMOTHY JOHN AYRES Respondent: BA & CF TEDHAM & CO Respondent: IAN HARRY BACKLER Respondent: T W BAKER Respondent: MICHAEL BALESTRIN Respondent: BRONTE BAMPTON Respondent: DOROTHY BARWICK Respondent: JENNIFER BARWICK Respondent: RUSSELL EDWIN BOORD Respondent: LINDSAY DENE BOTT Respondent: ROBERT JOHN BOWD Respondent: JOHN BOZANIC Respondent: MERVYN DOUGLAS BRAITHWAITE Respondent: ROBERT STANELY BROOKS Respondent: DENNIS WAYNE BUCKINGHAM Respondent: BARTHOLOMEW BRETT BUTSON Respondent: R L AYRES Respondent: MERVYN JOHN CAMP Respondent: ANTHONY PAUL DAWSON Respondent: LIONEL ALLAN CARRISON Respondent: PETER MELVILLE CARRISON Respondent: D K CAWTHORNE Respondent: PAUL CAWTHORNE Respondent: BRUCE E CHAMBERS Respondent: JARROD B CHAMBERS Respondent: LEIGH CHAMBERS Respondent: ROBERT ASHLY CHAMBERS Respondent: TIM CHAPMAN Respondent: PAUL ALEXANDER CLAUGHTON Respondent: JOHN COLLINSON Respondent: DONALD GREGORY COOK Respondent: WALTER PHILIP COOPER Respondent: JAMES C COPE Respondent: GEOFFREY RUSSELL CUMMINGS Respondent: ROGER M CUTTING Respondent: JEFFREY JOHN DALE Respondent: JOHN CARRISON Respondent: RODERICK DELAN DENNIS Respondent: SHIRLEY J GALPIN Respondent: RUDOLF WILHELMUS DUURLAND Respondent: CRAIG NEIL EDWARDS Respondent: TREVOR NORMAN EDWARDS Respondent: J ELLIS Respondent: DAVID ENGE Respondent: BRUNO FABRIS Respondent: FRANK FABRIS Respondent: GAETANO FABRIS Respondent: MARIO FABRIS Respondent: DONALD GEORGE FEAST Respondent: EDWARD MAXWELL FEAST Respondent: JOHN C FEAST Respondent: PAUL WILLIAM FEAST Respondent: DEBRA LEA FERGUSON Respondent: DAVID JOHN FOSTER Respondent: EDWIN TREVOR GALE Respondent: ALBERTO GALLI Respondent: LUCIANO GALLI Respondent: SUSAN MARGARET DICKINSON Respondent: KATHY GRANY Respondent: JAMES WILLIAM GODDEN Respondent: TRENT GREGORY Respondent: H STANKE & SONS PTY LTD Respondent: KENNETH GEORGE HAINES Respondent: DAVID WILLIAM HALL Respondent: LEICESTER EDWARD HAINES Respondent: ROBERT JOHN HARDING Respondent: GRAHAM FRANK HARROWFIELD Respondent: BERNARD PAUL HENDERSON Respondent: DARRYL HERA-SINGH Respondent: GARRY IAN HERA-SINGH Respondent: JEFFREY HERA-SINGH Respondent: PETER HICKMAN Respondent: GLENDAN DARYL HILL Respondent: WAYNE JEFFREY GALPIN Respondent: ANDREW GEERING Respondent: DAVID FARADAY GILL Respondent: SHANNON MAUREEN GILL Respondent: LOVRE A GOBIN Respondent: ARCHILLE GRANZIERA Respondent: S B HINGE Respondent: DARREN JOHN HOAD Respondent: TIMOTHY SCOTT HOAD Respondent: RICHARD W HOWARD Respondent: BARRY J HURRELL Respondent: HUBERT BRIAN HURRELL Respondent: VALDIS IEVINS Respondent: JIMMY JOHNSON Respondent: BRIAN D JONES Respondent: DAVID JOHN KENNEDY Respondent: KRIKOR KESSEGIAN Respondent: BRIAN EDWARD KLINGBERG Respondent: DAVID HALL LANGDON Respondent: BRYAN RICHARD LAWRIE Respondent: LEONARD GLENN LE CORNU Respondent: CYNTHIA A LEECH Respondent: MICHAEL ARTHUR LEECH Respondent: MAURICE KILSBY LEGGETT Respondent: GORDON WILLIAM LEWIS Respondent: PHILLIP JOHN LEWIS Respondent: RON J LEWIS Respondent: MARK KEITH MOODY Respondent: SHANNON MORAN Respondent: GRAHAM MILSTEAD Respondent: COLIN HUGH MILSTEAD Respondent: MICHAEL JOHN MCQUADE Respondent: LEN R MCQUADE Respondent: RODERICK PETER MCINTYRE Respondent: JOHN EDWARD MCGOVERN Respondent: PETER JOSEPH MARTIN Respondent: PAUL MANTHORPE Respondent: BARRIE JOHN MANSER Respondent: SIMON MANNERS Respondent: KYM BRYAN MALLYON Respondent: TONY FRANC LUKIN Respondent: WARREN E LUDWIG Respondent: GRAHAM C LUCAS Respondent: RODGER COLIN LONG Respondent: DAVID MILLER Respondent: ANN LUKIN Respondent: RAYMOND THOMAS MODRA Respondent: MAX POLACCO Respondent: GARY R PETERS Respondent: VICTOR GRANT PERRYMAN Respondent: SHARON LEE PERRYMAN Respondent: JUNE PERRYMAN Respondent: IAN MAXWELL PERRYMAN Respondent: ROBERT TYRER PENNINGTON Respondent: DREW M PEGLER Respondent: BRENTON LEIGH PATTEN Respondent: ALEXANDER PATTEN Respondent: GEORGE OSIS Respondent: DARREN CRAIG O'HALLORAN Respondent: ADAM DAVID OLDS Respondent: HAYDN JOHN O'BRIEN Respondent: G R NILSSON Respondent: DONALD MARK NATTRASS Respondent: MULLAN FISHERIES Respondent: STEPHEN MORIARTY Respondent: TERRY J MORAN Respondent: LESLIE A POLKINGHORNE Respondent: ROBERT CHARLES MORGAN Respondent: BARRY POWER Respondent: STAN PRIDDLE Respondent: JENNIFER M PURTELL Respondent: JOEL ROBERT REDMAN Respondent: KIM A REDMAN Respondent: KYM REDMAN Respondent: IAN ROBERT REGNIER Respondent: MARTIN RESNAIS Respondent: CHRISTOPHER MILTON RICHARD Respondent: SHANE JOHN RICHARDS Respondent: BENVENUTO ROBERT RIGONI Respondent: JAMES DUNCAN RITCHIE Respondent: WILLIAM PERCY RITTER Respondent: PETER STUART ROACH Respondent: ROBINSON FAMILY TRUST Respondent: MARK JAMES ROTHALL Respondent: RONALD PETER ROWE Respondent: CHRISTOPHER JOHN ROYANS Respondent: JOSIP SANTIC Respondent: STEPHEN JOHN SCHILD Respondent: SEAFOOD COUNCIL SA LTD Respondent: ANNE ELIZABETH TAPLEY Respondent: IAN EDWARD TAYLOR Respondent: GRAHAM MARK TAPLEY Respondent: DAVID K TALBOT Respondent: GARY WILLIAM STEELE Respondent: NEVILLE JAMES STARK Respondent: ERIC WILLIAM STACEY Respondent: RENE JOHN SPRUYT Respondent: SAVVAS SPIRIDIS Respondent: DARYL MARK SPENCER Respondent: TREVOR LESLIE SNEATH Respondent: GEOFFREY PHILIP SNEATH Respondent: RODNEY SMITH Respondent: JONNY IAN SMITH Respondent: EDWARD T SMITH Respondent: KIM B SKEER Respondent: BRIAN SKEER Respondent: TONY JOHN SHORT Respondent: DAVID SHERIDAN Respondent: WILLIAM ARTHUR SELBY Respondent: JOHN THEAKSTONE Respondent: BRENTON E TYRRELL Respondent: MICHAEL ALAN WILSON Respondent: GRAEME BARRY WILSON Respondent: JAMES PATRICK WILLIS Respondent: MATTHEW ROY WILLIAMS Respondent: MICHAEL H WILDE Respondent: ALBERT THOMAS WHITTLE Respondent: SCOTT WEAVER Respondent: GREGORY WARD Respondent: PETER EDWARD WALTERS Respondent: GRAHAM LESLIE WALDEN Respondent: JOHN WAKELIN Respondent: JEFFERY PAUL WAIT Respondent: GREGORY BRUCE VON STANKE Respondent: ROBERT J VILLIS Respondent: HENRY RICHARD WESTLAKE Respondent: LANCE LEON TYLEY Respondent: BRUCE WILLIAM TURNER Respondent: TELSTRA CORPORATION LIMITED Respondent: KATHERINE ANN KLEINIG Respondent: ROBERT JOHN NEINDORF Respondent: MERVYN HENRY MARWOOD Respondent: WILDCATCH FISHERIES SA INC Respondent: COMMONWEALTH OF AUSTRALIA Respondent: SA POWER NETWORKS (FORMERLY KNOWN AS ETSA UTILITIES)