In this decision, White J confirmed the non-discriminatory nature of a resolution passed by the District Council of Kimba (the Council) for the holding of a ballot that de facto excluded the Barngarla Determination Aboriginal Corporation RNTBC (BDAC) as well as its 211 members.
In order to ascertain whether a majority of the community were supportive of the building of a nuclear storage facility within the Kimba area, the Council had resolved to conduct a non-binding ballot in reliance on the eligibility criteria set out in s 14 of the Local Government (Elections) Act 1999 (SA) (‘LGE Act’). However, native title holders did not meet the criteria contained in s 14(1)(ab), (b) or (c), as the land subject to native title within the Council area was not rateable land. Furthermore, none of the native titleholders resided within the Council area or were otherwise entitled to be enrolled on the voters roll, thus preventing them from being eligible to vote in the ballot pursuant to s 14(1)(a) of the LGE Act.
On the basis that its members held native title rights and interests in numerous parcels of land within the Council area, the BDAC argued that the holding of the ballot without the inclusion of its members constituted an exclusion based on their Aboriginality within the meaning of s 9(1) of the Racial Discrimination Act 1975 (Cth). It further argued that, pursuant to its power vested by s 36 of the LGE Act, it was open to the Council to determine a franchise for the ballot that is more expansive than that contained in ss 14 to 16 of the LGE Act.
White J accepted that the non-inclusion of the members of the BDAC in the franchise for the ballot involved a distinction or exclusion. However, noting that the s 14(1) franchise did not involve any differential treatment of the non-resident native title holders and other non-residents who have a property interest in the Council area but are not ratepayers, his Honour found that the exclusion did not arise by reason of the Aboriginality of BDAC’s members, but rather, by reason of their place of residence and the fact that they were not ratepayers.
In addition, his Honour considered that the enlargement of the franchise for the purpose of the ballot would have required a number of subjective judgements about the extent of the enlargement and that grant of individual votes to each of BDAC’s members would have involved a distortion of the franchise as each native title holder would have an individual vote, whereas it is only the designated members of other groups who may vote. White J stated that it was reasonable for the Council to decide that the ballot should be conducted on the s 14(1) franchise.
Consequently, BDAC’s application was dismissed.