Mansfield J
This matter concerned three applications by Mr Mark Koolmatrie and the Tribal Council Elders of the Coorong, Lower Lakes and Sea in relation to the Ngarrindjeri Native Title Claim seeking orders that:
the Ngarrindjeri Native Title Claim be struck out; or
the Ngarrindjeri claimants establish connection to country; or
the Ngarrindjeri claimants prove “lineage” (i.e. genealogy); or
the Ngarrindjeri claimants establish the matters under ss 223 and 225 of the Native Title Act 1993 (Cth)(NTA); or
the Koolmatrie applicants be joined as a respondent to the Ngarrindjeri Native Title Claim.
Manfield J also considered but found unnecessary to answer an application by Mr Darrell Sumner and others, seeking orders that the first Koolmatrie application be dismissed.
Mansfield J refused the three Koolmatrie applications on the basis that Mr Koolmatrie is not a party to the Ngarrindjeri Native Title Claim and unless he can obtain that status or other relevant status he did not have standing to make the applications.
Sovereignty
Mansfield J considered Mr Koolartrie's affidavit in support of the application was partly factual and party submission, including a purported notice under s 78B of the Judiciary Act 1903 (Cth). The submissions sought to impugn the authority of the Commonwealth Parliament and by implication the jurisdiction of the Federal Court to determine applications for native title and the Ngarrindjeri Native Title Claim. Mansfield J concluded that the application could not succeed on the basis of the reasons for decision in Walker v South Australia (No 2) (2013) 215 FCR 254.
Criteria for joinder
Section 84(5) of the NTA specifies that the Court may join a person to proceedings if the court is satisfied that the person’s interests may be affected by a determination and it is in the interests of justice to do so.
Mansfield J noted that the Tribal Council of Elders of the Coorong, as an entity which represents individual members who claim direct interests which may be affected by a determination of native title, only has an indirect interest in the matter. This indirect interest failed the requirements of s 84(5) NTA.
Accordingly, only Mr Koolmatrie or other individuals could properly be joined as respondents asserting a competing claim or interest. In exercising its discretion, the Court must be satisfied that a persons interests may be affected in a demonstrable way by a determination of native title.
Although people representing a differently constituted claim group may be joined as respondent parties, the joinder will inform the determination of native title of the principal native title claim. The joinder cannot result in a positive determination in favor of the joined party.
Mansfield J considered the material relied upon by Mr Mr Koolmatrie and found that none of it indicated that Mr Koolmatrie claimed an interest as a dissenting member of the Ngarrindjeri Native Title Claim group. Rather, Mr Koolmatrie and the Tribal Council of Elders of the Coorong were advancing a competing native title claim.
Mansfield J considered that the material relied upon did not have the necessary probative value and failed to establish a prima facie or arguable case for joinder on the basis of competing native title rights and interests.
The Court noted that Mr Koolmatrie is accepted as a member of the present claim group and held that if Mr Koolmatrie seeks joinder as a dissentient member of the Ngarrindjeri claim group, there is no evidence that Mr Koolmatrie possesses specific interests separate from those within the claim group or that his interests as a dissentient (if any) would be demonstrably affected by the determination of the Ngarrindjeri Native Title Claim.
Court's discretion
In deciding that the Court should not exercise its discretion Mansfield J noted that the Ngarrindjeri Native Title Claim is now 16 years old and Mr Koolmatrie had not provided any reasonable explanation for not asserting competing native title rights and interests prior to the present application. Also, the Koolmatrie application, if successful, would impede the finalisation of negotiations in relation to a proposed Indigenous Land Use Agreement and Co-Management Agreement over the Coorong National Park and destabilise and delay negotiations with the State with a view to a consent determination in relation to the Ngarrindjeri Native Title Claim.
Other matters
Mansfield J found that even if Mr Koolmatrie had standing to bring an application under s 84D (eg as a member of the claim group), no cogent admissible evidence had been provided to support an application under s 84D NTA.
Similarly, there was also no cogent reason why, the Ngarrindjeri Native Title Claim group should be required to present, as if at trial or at a trial of separate issues, the evidence to prove connection to the claim area, or the “lineage” or genealogy in the circumstances as discussions are taking place between the applicant and other respondents which may be resolved by consent.