Mansfield J
In this matter the Court considered an application by Robert Miller to reinstate the Mirning People’s native title claim as a separate application or no longer be combined with the Far West Coast Native Title claim following its consolidation.
Background
In 1998, two separate but overlapping claims were filed, one by the Mirning People and the other by the Far West Coast People over an extensive area in the south west of South Australia.
In 2005, following mediation between the two groups, the groups decided to authorise the consolidation of the two claims. The combined Far West Coast claim is now at a point where a consent determination is a real possibility.
Robert Miller, a Mirning man, is concerned that the Mirning people are not adequately represented, or their interests adequately protected, in the conduct of the combined claim.
Mr Miller applied for the following orders
The Mirning Native Title Claim re-instated as a separate application;
Mr Miller be joined as a respondent to the Far West Coast Native Title Claim under s 84(5) of the Native Title Act 1993 (Cth) (NTA);
in the alternative to order 2, the Applicant produce evidence to the Court in relation to the Far West Coast Native Title Claim of the character specified in subs 84D(1)(a) and (b); and
such other orders as the Court deems appropriate.
The Far West Coast Native Title Applicant sought summary disposal of Mr Miller's application.
Consideration
De-consolidation
Mansfield J held that Mr Miller did not have the necessary legal standing to make the deconsolidation application as Mr Miller was not claiming to represent the claim group which authorised the Far West Coast Native Title Claim or the Mirning people as defined in the pre-consolidated Mirning Native Title Claim. Neither group authorised Mr Miller to bring the current application.
Accordingly, Mansfield J held that Mr Miller did not have the authority to re-instate the separate Mirning claim.
Joinder as a respondent
The Court noted that the decision to combine the two claims followed a series of long and difficult negotiations and the meeting minutes record some discontent and unease of at least some of the Mirning people, who were concerned that the Mirning people would not be adequately represented and that their voice would be lost in the combined claim. The minutes also include reference to ‘future agreements’ that would be made after the consolidation of the claims to ensure that the Mirning people would be adequately represented.
Mr Miller alleged that the authorisation of the combined claim group was only agreed to on the basis that these future agreements were entered into, and that they have not been entered into or given effect.
Mansfield J decided to hear further evidence on this argument as to whether Mr Miller should be joined as a respondent to the combined claim, despite already being a member of the claim group.
Proceedings affected by possible defect in authorisation
Mr Miller claimed that the current combined Far West Coast claim was not properly authorised as authorisation was subject to certain conditions regarding communication between the representative of the claim group (Mr Lawrie) and the claim group, the decision making process for decisions that affect Mirning Land, the protection of country and sacred sites, and speaking for country. Mr Miller argued that because these conditions had not been met, there was a defect in the authorisation of the combined claim.
The Court noted that it was arguable that s 84D(1)(g) of the NTA allows the Court to order a person to give evidence where there is a reasonable basis for thinking that they have exceeded the authority of the authorisation.
Mansfield J found that it was not clear whether Mr Miller was seeking an order under s 84D of the NTA and therefore listed Mr Miller's application and the Applicant's request for summary dismissal for further mention.
Orders
The application of Robert Victor Miller for the reinstatement of the Mirning Native Title Claim (WAD 6016 of 1998) (by its deconsolidation from the Far West Coast Native Title Claim) is refused.
The applications of Robert Victor Miller for his joinder as a party to the Far West Coast Native Title Claim, and for an order or orders under s 84D(1) or (4) – if still pressed – and for the summary dismissal of those claims, are stood over to a date to be fixed.
The parties, including Robert Victor Miller, are given liberty to apply.