White J
This matter concerned an application by Mr Mark Koolmatrie on behalf of the Tribal Council of Elders of the Coorong, Lower Lakes and the Sea (Tribal Council), to strike out a native title application lodged on behalf of the Ngarrindjeri People in 1998. The Tribal Council is an unincorporated group of about 2024 elders who ‘represent the Original People of the area’.
Mr Koolmatrie sought the following orders:
The strike out of the Ngarrindjeri native title claim and their claim is to be dismissed as they have been negligent in not meeting with all those on their claim including the apical ancestors of those on their claim.
That the Ngarrindjeri native title claim and Mark Koolmatrie and the Tribal Council of Elders of the Coorong, Lower Lakes and the Sea claim is progressed to a trial with a full hearing of oral evidence of those of the Ngarrindjeri native title claim as opposed to affidavit evidence.
That Mr Berg, lawyer for the Ngarrindjeri People, is dismissed from representing the Ngarrindjeri native title claim due to his failure to follow the Court’s orders.
An injunction is granted to prevent the Ngarrindjeri native title claim acting in the future over the lands, water and air of the area of the claim until the determination of native title is concluded.
The Ngarrindjeri native title claim produces their genealogy and lineage to the claimed area.
In 2013 and 2014, Mr Koolmatrie and the Tribal Council made applications seeking orders that the Ngarrindjeri native title claim be struck out; alternatively, that the Ngarrindjeri native title claimants establish connection to country; alternatively, that the claimants produce genealogies; alternatively, that Mr Koolmatrie and that the Tribal Council be joined as respondents to the Ngarrindjeri native title claim.
Those applications were refused by Mansfield J in Sumner v State of South Australia [2014] FCA 534 on the grounds that:
Mr Koolmatrie had no standing to bring the applications because he is not a party to the Ngarrindjeri Native Title Claim;
Mr Koolmatrie sought to impugn the authority of the Australian Parliament and, by implication, the jurisdiction of the Federal Court to determine applications for native title and thereby the Ngarrindjeri Native Title Claim itself and these topics had previously been rejected by the Court;
the Tribal Council did not have the kind of direct interest capable of being affected by a determination of native title and so could not be joined as a party;
the evidence relied upon by Mr Koolmartrie did not provide an arguable factual foundation for him having a general interest as a member of, and as the representative of, a competing claim group whose interests may be demonstrably affected by the determination of the Ngarrindjeri claim;
discretionary considerations also pointed against the joinder of Mr Koolmatrie pursuant to s 84(5) of the Native Title Act 1993 (NTA);
Mr Koolmatrie had not demonstrated standing to bring an application pursuant to s 84D of the NTA; and
it was inappropriate to require the Ngarrindjeri native title claimants to present, as if at trial or on a trial of a separate issue, the evidence to prove their connection to the claimed area or the ‘lineage’ or genealogy.
The Ngarrindjeri applicants claimed that the present application of Mr Koolmatrie and the Tribal Council is an abuse of the Court’s process because it failed to “disclose a reasonable cause of action appropriate to the nature of the proceeding” and because “the applications are substantially the same as the applications made on 17 October 2013, 6 December 2013 and 23 January 2014”.
Consideration
His Honour was satisfied that neither Mr Koolmatrie nor the Tribal Council have standing to bring the present application; that even if they do, some of the orders which they seek are not within the Court’s jurisdiction; and that, in any event, Mr Koolmatrie has not provided evidence showing a proper evidential foundation for the making of any of the orders which he seeks. Discretionary considerations also point against the grant of the application.
Orders
The application was refused.