White J approved the interlocutory application of the Barngarla and Nukunu peoples seeking to dismiss the Kokatha #3 Native Title Claim SAD83/2016.
Background
Each of the Barngarla, Nukunu and Kokatha peoples have filed applications for the determination of native title over areas in the city of Port Augusta. These are the Barngarla Native Title Claim (SAD6011/1998); the Nukunu Native Title Claim (SAD6012/1998); and the Kokatha #3 Native Title Claim (SAD83/2016). The Court later ordered that the overlapping claims proceed as one proceeding known as the Port Augusta Overlap Proceeding (Action No SAD6011/1998).
On 26 November 2018, the Barngala and the Nukunu Peoples filed an interlocutory application for the summary dismissal of the Kokatha #3 Claim under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth). This application was made on the basis that the Kokatha had no reasonable prospect of successfully prosecuting the application; and/or it was otherwise an abuse of the process of the Court.
The Kokatha People opposed the interlocutory application and were supported in that opposition by the Commonwealth. The State of South Australia supported the submission of the Barngarla and Nukunu that the Kokatha #3 Claim had no reasonable prospect of success, but took a neutral position with respect to the proceedings constituting an abuse of process.
Both the Barngarla and Kokatha peoples have had determinations recognising their native title over areas of land adjacent or close to the area of Kokatha #3 claim.
Kokatha #3 Claim
The Kokatha claim was brought by eight persons (Andrew Starkey, Maxwell Reid, Andrew Dingaman, Lynette Strangways, Dianne Welgraven, Glen Wingfield, Tracey Reid, and Barbara Amos) who jointly comprised the applicant. White J at para [22]-[23] described the area of the claim as irregular in shape, comprising a “relatively narrow arc of land and water oriented to essentially a northsouth axis”.
The Kokatha #3 claim partly overlapped with the Barnagarla Claim over the City of Port Augusta. The whole of the Kokatha #3 claim overlapped with an area which is the subject of the undetermined Nukunu Native Title Claim.
Barngarla and Nukunu application
The Barngarla and Nukunu peoples relied on three matters for their application:
Firstly, they relied on the findings of Mansfield J in the Lake Torrens Overlap Proceedings (No 3). His Honour dismissed the claim of the Kokatha on the basis that “while the evidence established that the Western Desert Cultural Bloc of which the Kokatha form part had moved progressively from the north and west towards Lake Torrens, it did not establish that they had, at the time of sovereignty, extended their country under their traditional laws and customs into the area east of the western boundary of Lake Torrens”.
Secondly, the applicants noted that the Kokatha #3 area is not only contiguous with Kokatha Part A but is separated from it by land in respect of which another group altogether has been recognised as having native title.
Thirdly, they raised the improbability in the Kokatha having native title over the claim “island” of land given that they are of the Western Desert Cultural Bloc, whereas each of the surrounding groups, the Barngarla, the Adnyamathanha and Nukunu, are Lakes People.
Reasonable Prospects of success
Firstly, His Honour noted at para [41] that the reliance on the findings in Lake Torrens Overlap Proceedings (No 3) could not be regarded, by themselves, as indicating that the Kokatha #3 claim had no reasonable prospects of success. White J argued that the judgment by Mansfield J only applied to the eastern movement of the Kokatha peoples into the Lake Torrens area. The judgment did not express a conclusion about the area for this application (i.e. movement to the south/southeast of the Kokatha Part A area). Furthermore, at para [45] White J found that Mansfield J’s finding did not exclude a possible hypothesis that the Kokatha had continued to move south and southeast from the Kokatha Part A area.
Secondly, His Honour held at para [49] that the fact that the Barngarla had a positive native title determination over the intermediate land was a significant matter. White J noted that it would be unusual for a finding that the Kokatha had native title over an “island” of land and water separated from Kokatha Part A.
Thirdly, White J noted that the Kokatha peoples did not provide evidentiary material addressing the significance of native title of Barngarla over the area between Kokatha Part A and Kokatha Claim #3 area, nor did it address the fact that the Kokatha Claim #3 area is not contiguous with the Kokatha Part A area [para 67]. Furthermore, His Honour held at para [71] that there was an absence of historical or ethnographic material indicting the occupancy of the claim area by the Kokatha at sovereignty.
From these matters, His Honour concluded that the Kokatha did not have a “reasonable prospect of establishing that they held rights and interest in the Kokatha #3 claim area at sovereignty, which were possessed under the traditional laws and customs of the Kokatha People at that time” [para 73]. Accordingly, White J held that it was appropriate that the Kokatha #3 claim be summarily dismissed.
Abuse of power
His Honour noted that his dismissal of the Kokatha #3 claim, due to an absence of reasonable prospects of success, would make it unnecessary to address the second part of the application concerning abuse of power. However, White J decided to address this issue in case the matter went further on appeal.
His Honour argued that the submission that the Kokatha claim constituted an abuse of process cannot be accepted. The Barngarla and the Nukunu submitted that the decision in Lake Torrens Overlap Proceedings (No 3) resulted in the native title rights and interest of the Kokatha not extending further east than the western shore of Lake Torrens. White J at para [77] held that the finding in Lake Torrens Overlap Proceedings (No 3) did not bind the Court in the present proceedings.
His Honour also noted that the area in the Kokatha #3 claim was different from the area which was the subject in the Lake Torrens Overlap Proceedings (No 3) proceedings. In addition, the application was made by a slightly different constituted claim group as in the Lake Torrens Overlap Proceedings (No 3) case. It was for these reasons that White J did not hold the Kokatha #3 claim as an abuse of power, as it was not an attempt to re-litigate an issue already decided.
In his conclusion, White J argued that he was not satisfied that the Kokatha #3 claim constituted an abuse of the court’s process, but was satisfied that the claim did not have a reasonable prospect of success. As such, His Honour upheld the interlocutory application of the Barngarla and the Nukunu peoples and dismissed the Kokatha #3 claim.