Case: Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364
Outcome: followed
the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] (' Dieri People '); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240 (' Tilmouth '). In my view, the applicable test under s 61(1) is that a pre-Amending NTA application, that was amended after the commencement of the Amending NTA, is 'made' to the Court under Div 1 of Pt 3 of the New NTA if the amended application is properly to be regarded as a 'new application' or a 'fresh application': see Wharton on behalf of the Kooma People v Queensland [2003] FCA 1398 at [25] [27] (Emmett J) (leave to appeal refused: Branfield v Wharton [2004] FCAFC 138) ; Briggs v Minister for Lands (NSW) [2004] FCA 1056 ; (2004) 141 FCR 17 at [28] (Moore J); McKenzie v South Australia (2005) 214 ALR 214 at [31] (Finn J). Against the possibility that the following authorities are properly to be understood as going so far, I should say, with respect, that I do not agree that any post-amending NTA amendment necessarily triggers the authorisation requirement: cf Quall v Risk [2001] FCA 378 (O'Loughlin J) at [63], [65]; Dieri People (Mansfield J) at [18]; Edward Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (' Edward Landers ') (Mansfield J) at [4], [5]. The Commonwealth and Group 6A rely on the related cases, Dieri People and Edward Landers . There were two applications in those cases. The first was brought by eight named people to whom I will refer as 'the Dieri Mitha', and was expressed to be brought on behalf of 'the Dieri People'. The second was brought, also on behalf of the Dieri people (but see below), but by an 'Edward Landers group' which was a sub-group of the Dieri People. The second application was in respect of an area wholly within the area the subject of the Dieri Mitha application. The Edward Landers application added to its description of the group on whose behalf the application was brought, the words: native title claim group however specifically excludes all of those people listed as being the applicant group in the particulars of claim filed in the [Dieri Mitha proceeding], whilst those people's names appear as members of that applicant group' Mansfield J noted ( Dieri People at [3]) that subject to that exclusion, it was not inaccurate to describe the Edward Landers application as being on behalf of 'the Dieri People'. In Edward Landers , the Dieri Mitha group sought a striking out of the Edward Landers application under s 84C or a summary dismissal of it under O 20, r 2(1)(a) of the FCRs. In Dieri People , the Edward Landers group sought a striking out or summary dismissal of the Dieri Mitha application. The grounds relied on in each motion were in substance the same. In Dieri People , after referring to authorities, his Honour again observed ( Dieri People at [55]), that the NTA did not permit the making of a claim by a sub-group of the 'native title claim group' or the 'grant' [sic] of native title to a sub-group of the 'real' native title claim group. I agree. In my opinion, there must be a coincidence between (a) the native title claim group as defined in ss 61(1) and 253 of the NTA (the actual holders of the particular native title claimed); (b) the claim group as defined in the Form 1; and (c) all of the persons who authorised the making of the application, and who must be named or otherwise defined in the Form 1 as required by s 61(4). In Dieri People , Mansfield J held ([56]) that the native title claim group was 'the community of persons comprising the Dieri People', but the claim group described in the Dieri Mitha application was a smaller group of some Dieri people only. His Honour dismissed the application for non-compliance with the authorisation requirement of s 61(1) of the NTA. I return now to the Wongatha Claim. The Wongatha applicants submit that the small claim groups in Dieri and Landers acknowledged that they were only part of 'the proper claimant group', and that the 'Court's reasoning focuses' on the authorisation by the claimants, not by those potential native title holders who may eventually be subject to a determination. They also submit, in relation to the Maduwongga application, that s 61 should not be interpreted to require authorisation of the Wongatha application by Ms Strickland and Ms Nudding, who elected to continue with their own native title claim and therefore asserted that they hold native title other than the particular native title claimed by the Wongatha applicants. The Cosmo applicants submit that any apparent overlap in group membership (as between the Wongatha and Cosmo Claim groups) is due to claims being brought on the basis of different views of how country is claimed, which is a matter to be decided on the evidence. They say that the exclusion clauses are articulations of the operation of the traditional law of Western Desert land tenure which, they submit, allows for choice in claiming country. I do not see any basis on which the Court could make a determination in favour of a group that did not include those members of the Wongatha People who were excluded in the Wongatha Form 1 filed on 1 November 1999. As Mansfield J held in both Dieri People and Edward Landers , s 61 permits a native title determination application to propose only a determination in favour of all the members of the native title claim group. By reason of the exclusion, the Wongatha Claim does not meet the requirements of ss 61(1) and (4). I discussed Dieri People and Edward Landers in the context of the Wongatha application at 4.1 [1209] ff, and will not repeat the discussion here. Those cases are not on all fours with the Wutha case because the determination that was sought was one on behalf of the larger group. Mansfield J held ( Dieri People at [54]-[57]; Edward Landers at [29]-[33]), in substance, that there must be a coincidence between the group for which a determination is sought and the authorising group. With respect, I agree, and refer to my discussion at 4.1 [50].