White J
In this matter White J ordered that Ms Laura Agius and Mr Peter Rigney be removed from persons who constitute the applicant and dismissed the request to give the proceedings a new designation.
Since the native title determination application was commenced in 1998, two members of the applicant passed away. On 14 September 2016 the Court made orders pursuant to s 66(B)(2) of the Native Title Act 1993 (Cth) (NTA) that the twenty people who now comprise the applicant, replace the then current parties.
[3] The application for determination of the native title in the area referred to as Ngarrindjeri Part A was listed for a consent determination on 14 December 2017. On 6 December 2017, the Applicants filed an interlocutory application seeking two orders: that Mr Peter Rigney and Ms Laura Agius be removed from the persons constituting the applicant and that the proceedings be given the designation ‘Mathew Rigney and Others v State of South Australia and Others’.
Removal of the applicant
S 66(1) (a) NTA permits that one or more members of a native title claim group may apply for an order that certain group members replace the current applicant where such persons are deceased or incapacitated. The applicant sought that Mr Peter Rigney and Ms Laura Agius be removed as persons constituting the applicant pursuant to that provision. A resolution passed by the Ngarrindjeri native title claim group on 9 November 2017, stipulated that 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. His Honour was satisfied that it was appropriate to make the order removing Ms Laura Agius and Mr Peter Rigney as persons who constitute the applicant. Basil Sumner became the lead applicant.
Designation issue
The Court has discretion to alter proceeding designations in accordance with rr 2.13 and 34.120 of the Federal Court Rules 2011 (Cth). The applicant sought to have the designation changed from ‘Ngarrindjeri Native Title Claim’ to ‘Mathew Rigney and Others v State of South Australia and Others’ in honour of the late Mr Mathew Rigney, who died in 2011. Mr Matthew Rigney had been a party to the proceedings as applicant, until he was removed on 14 September 2016. While his Honour appreciated the wish to honour the late Mathew Rigney, due to his contribution the Ngarrindjeri Native Title Management Committee and the Ngarrindjeri people, his Honour held the change in designation not appropriate. The refusal was based on the confusion a change in designation would cause:
The proceedings have been known for a very long time as Ngarrindjeri Native Title Claim
The change would imply that the late Mr Mathew Rigney was a member of the current Applicant group
The change would imply that the matter is a special case where a deceased is applicant to the proceedings as in Lennon v South Australia [2010] FCA 743 and I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215. His Honour deemed that it was not.
The proposed designation is different from those used in relation to other native title applications.
The Court ordered (1) that Ms Laura Agius and Mr Peter Rigney be removed from the persons who constitute the applicant and (2) dismissed the orders sought by paragraph two of the interlocutory application lodged on 6 December 2017.