Mansfield J
In this case, Mansfield J dismissed an application brought on behalf of the Ramindjeri People for a determination of native title over a large area of land and waters including Kangaroo Island, and the Fleurieu Peninsula and surrounding waters. The claim overlapped with significant parts of the Ngarrindjeri native title claim south of Adelaide and of the Kaurna Peoples’ native title claim over the Adelaide plains.
The State of South Australia brought a strike out application on the basis that the Ramindjeri claim could not succeed because:
The Remindjeir claim group is a sub-group of the Ngarrindjeri claim group and is not capable in its own right of being recognised as the holders of native title; and
the applicant, Mr Walker, was not properly authorised under s 251B of the Native Title Act 1993 (Cth) (NTA) to bring the claim on behalf of the identified Ramindjeri claim group.
Mansfield J joined the Ngarrindjeri and the Kaurna People as respondents to the matter.
Legal Principles
Mansfield J noted that s 84C of the NTA permits a party to apply for a strike-out if the native title application does not comply with s 61 of the NTA and used the statutory test in s 31A of the Federal Court of Australia Act 1976 (Cth) - whether Mr Walker is shown to have no reasonable prospect of successfully prosecuting the Ramindjeri claim.
His Honour noted that where the described native title claim group is in fact more accurately a sub-group of a larger community of persons who hold the common or group rights and interests, that sub-group cannot generally qualify as a claimant group under the NTA.
Recognising that there may be circumstances in which a sub-group may constitute a claim group, where it alone exercises rights in relation to a defined area, the Court noted that the sub-group would itself need to have properly authorised the applicant to bring the claim on the sub-group's behalf.
Mansfield J acknowledged that the Ramindjeri People's claim would not generally be struck out but considered it appropriate as there was very little material to support the very large claim area, particularly the large sea area of the claim and Kangaroo Island. In addition, some people present at the authorisation meeting were more focused on a smaller geographic area and the meeting resolution confined the claim group to the people who signed a declaration as attendees and their immediate families.
The Court concluded that the claim group forumulation adopted at the meeting excluded the descendants of named apical ancestors who did not attend the meeting or who attended but were not allowed to participate.
For this reason, the Court held that the Ramindjeri claim should be struck out.
Applicant not properly authorised
Mr Walker claimed that his authorisation was given in accordance with Ramindjeri traditional laws and customs. As the meeting was conducted by allowing votes only to those who made declarations, and then by casting votes by a show of cards, His Honour concluded that this demonstrated that it was a contemporary process rather than a traditional process.
Mansfield J considered that Mr Walker was not authorised to bring the Ramindjeri claim because:
the meeting was only a step in the authorisation process as it followed a series of meetings of unspecified Ramindjeri families on unspecified occasions when Mr Walker was apparently selected to be the Ramindjeri representative to bring the claim;
there had been some traditional consultation process preceding the meeting but the process was not exposed sufficiently for the Court to be satisfied about its appropriateness or outcome;
there were no records or minutes of the earlier meetings;
the notice of authorisation meeting was inadequate to provide all of the potential claim group with an opportunity to participate in the decision making process;
the table of meeting attendees was not reliable;
some people who sought to, but were not permitted to, attend the meeting identified as Ngarrindjeri but of the Ramindjeri tribe or subgroup and wished to vote against the proposal in that capacity; and
the meeting process and procedures were not decided by those who wanted to attend it, or even by those who did attend.
For these reasons, the Court held that Mr Walker had no reasonable prospect of demonstrating at a full hearing of the Ramindjeri application that he was duly authorised by all the persons who would constitute the group rights of the Ramindjeri People (whether as a separate native title claim group or as a subgroup of the Ngarrindjeri People) and had no reasonable prospect of establishing that there was a decision of all the people who may hold native title rights and interests over the Ramindjeri claim area as Ramindjeri People to bring the claim.