White J
In this matter, the Court considered an application for the removal of two parties to native title proceedings known as Dieri No. 3.
The principal respondent is the State of South Australia (State).
The Court determined that the parties should be removed as respondents as their interests are represented by the applicants and there is no need for separate representation.
Background
In 2014 Ms Raelene Warren, her son Gregory Warren, (the Warrens) and Dieri Mitha Council Incorporated (DMCI) filed notices of intention to become a party to the application. Subsequently, the Warrens and DMCI were treated as parties to the proceedings but the applicants and the State took the view that they were not proper parties.
It was common ground that the Warrens are members of the Dieri Native Title Claim Group which authorised the applicants to bring the claimant proceedings. Some time later DMCI ceased to be a party.
The applicants then sought an order under s 84(8) of the of the Native Title Act 1993 (Cth) (NTA) that the Warrens be removed as respondents to the proceedings.
The submissions filed by both the applicants and the Warrens proceeded on the basis that the Warrens were already parties to the proceedings by virtue of the operation of s 84(3) NTA, which set out the parties to native title proceedings.
His Honour considered whether s 84(3) NTA has any application to people, like the Warrens, who are members of an applicant claim group.
His Honour considered the application and authorisation provisions of the NTA, and referred to the seeming incongruity of members of a claim group having authorised the applicant to bring proceedings on their behalf becoming independent parties to the proceedings and therefore in a position to oppose the application they had authorised, is at odds with the purpose of the NTA.
The Warrens contended that there were three matters in support of their remaining respondents to the proceedings.
The 2003 Agreement
In 1998 two native title applications were brought over the present claim area by both the Edward Lander Dieri Claim Group and the Dieri Mitha Claim Group. The claims were struck out in 2003. On appeal, the Full Court ordered a mediation which culminated in an agreement that there be a joint claim over the area. This resulted in a 2003 Agreement.
The principal terms of the 2003 Agreement were that there be one native title claim made on behalf the Dieri People which was to be pursued in the Edward Lander Dieri Native Title Claim, that the prescribed body corporate registered by the Edward Lander Dieri Group be renamed as the Dieri Aboriginal Corporation (DAC). The 2003 Agreement contained clauses guaranteeing the Dieri Mitha Claimant Group rights to two positions on the Committee of the DAC and an acknowledgement that the Dieri Mitha claimants had the right to file further applications for native title determinations outside the area. This included the area the subject of the present proceedings.
The joint claim was finalised by a consent determination on 1 May 2012 in which the native title of all the Dieri People over the claimed area was recognised: Lander v State of South Australia [2012] FCA 427. Dieri No. 2 involved a consent determination in respect of an area adjoining the area of the Dieri No. 1 claim: Lander v State of South Australia [2014] FCA 125.
The DAC constitution was later amended to remove the guarantee of two positions for members of the Dieri Witha Claim Group. A subcommittee consisting of one general member from the general Dieri group and one Dieri Mitha had agreed that the DAC should proceed without the reservation of two positions for the Dieri Mitha as all relevant Dieri Mitha members had been incorporated into the General Dieri Group and were members of the DAC.
His Honour did not consider there was a plausible basis for which the alleged breach of the 2003 Agreement could give rise to an interest in the proceedings as asserted by the Warrens. His Honour noted that the determination of the present application did not provide an appropriate occasion for the Court to hear and determine a breach of contract claim and the 2003 Agreement did not oblige the Edward Lander Dieri Group to allow the Dieri Mitha to be heard in relation to such claims or bind the State, other respondents or the Court.
His Honour concluded that there was no apparent connection between the claimed obligation to consult, on the one hand, and the retention of the Warrens as parties to the present proceedings, on the other.
Connection to land
The Warrens disputed the connection of the applicants to the Claim Area, claiming they are Wongkangurru, rather than Dieri people. The Warrens asserted that they are descended from an apical ancestor who had a strong connection with the claimed land prior to 1788 and are therefore traditional owners, which made it appropriate for them to remain as respondent parties.
His Honour rejected this argument, taking into account that the applicants for the present proceeding were also the applicants in the Dieri No. 1 and Dieri No. 2 consent determinations, the claim groups, which included the Warrens, were the same in each case and the Warrens did not point to any circumstance indicating a distinction should be drawn between the Dieri No. 1 and Dieri No. 2 claims and the Dieri No. 3 claim.
His Honour held that the proceedings were not an appropriate forum to address connection, and the Warrens' assertions were seemingly inconsistent with the 2003 Agreement signed by the Warrens, which provided that the two claim groups were ‘now a stable and united group who acknowledge that they are the Dieri People’.
White J also referred to the case law which indicated that the circumstances in which a dissentient member of a native title claim group will be permitted to become, or remain, a respondent party to native title are rare.
Interests of justice
Counsel for the Warrens submitted that the interests of justice would be served by permitting the Warrens to remain as respondents on three bases:
that the expeditious resolution of the proceedings would be facilitated if the Warrens remained as respondents;
that the Warrens had faced ‘real difficulty’ in representing their interest within the claim group; and
that it would be unjust if they were ‘denied a voice’ in the determination of the claim.
His Honour rejected these claims on the basis that no evidence had been adduced in support of the assertions.
White J considered that the applicants had made two previous claims, resulting in consent determinations, on behalf of the claims groups, which included the Warrens, and this suggested the applicants are able to, and do, bring claims on behalf of the Dieri claim group appropriately.
His Honour held that dissatisfaction with the conduct of the claim should not be addressed by the Warrens remaining as respondent parties.
The Warrens' purpose
Ms Warren stated that her purpose in seeking to remain a party to the proceedings was:
The Dieri Mitha have different traditions and customs to the Dieri.
There is Dieri Mitha clan with direct connection to the claim area. This land is not Dieri land but only Dieri Mitha.
I therefore seek to remain a respondent party to this application in order to ensure that the differing views of the Dieri Mitha are properly considered in this matter.
His Honour considered that Ms Warren's purpose was important as parties who wish to be joined or remain as a respondent are only permitted to pursue a personal claim to protect those rights and interests from erosion, dilution or discount. Therefore, people cannot be joined or remain respondents if their purpose is to act as a representative to assert native title rights on behalf of other people.
Further, Ms Warren’s stated purpose appears to be contrary to the position contemplated by s 62A of the NTA, namely, that it is the applicant, rather than anyone else, who may “deal with all matters arising under [the NTA] in relation to the applications”.