Case: McKenzie v State of South Australia (2005) 214 ALR 214
Outcome: cited
The requirements that the group be constituted by all the actual native title holders and that a determination, if successful, is to be made in their favour carry with them two consequences. The first is that a subset or part of what truly constitutes a native title group cannot itself be a claimant group under s 61(1): Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] ; although in some, though by no means all, instances, there may be good reason for hesitation in readily concluding that an alleged group is only a sub-group or part of a group for s 84C purposes: see McKenzie v State of South Australia (2005) 214 ALR 214 at [41]. However, where a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area, that sub-group may itself constitute a native title claim group: see Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 at [60] . 24 Finally I should note that s 84C(1) provides that, if an application does not comply with s 61, s 61A or s 62, a party to the proceedings may at any time apply to this Court to strike it out. All I need observe here is that the court's power should be exercised only where the claim as expressed is untenable upon the "version of the evidence" favourable to the respondent to the strike out: McKenzie , at [26]; Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77. 33 For my own part I consider the trust-like claim gives some reason for pause. The application and the accompanying evidence when considered most favourably to Mr Kite: see McKenzie at [26]; does suggest (subject to what is later said) that there is a basis for asserting the claim group members were, in accordance with traditional law and custom, authorised to make the claim (i.e. as Nguraritjas); that they were entitled to speak for the country; and that they had particular responsibilities in relation to the land claim. But the doubt it engenders is that these matters have had some part to play in contriving the claim group itself. That doubt is exaggerated by the not altogether satisfactory explanation given of the "rights" of the wider community of descendants of Bill Kite to enjoy or to have the benefits of the native title rights and interests claimed. Nonetheless, it is said on Mr Kite's behalf that the division between holding the claimed rights and interests on the one hand, and having the benefit or enjoyment of them on the other is a factual proposition that is not to be tested on the present motion. 34 In the end I consider that I am obliged to give Mr Kite the benefit of the doubts I have. I would, however, observe this much. I am not prepared to assume that the particular traditional laws and customs of an Aboriginal group cannot produce the type of internal relationship within a community such as is advanced in this claim. Nonetheless, I have some concern that in this matter the claim may well owe more to concepts drawn from common law conceptions of property than from traditional laws and customs. I refer in particular to the apparent equation here of the idea of being a "holder" of native title rights and interests with that of being the "owner" of those rights and interests. 35 The second two matters to which I need refer relate to the actual composition of the claim group itself and to the basis of its membership. I have foreshadowed both of these matters. The first relates to the members' relationship to Bill Kite; the second, to Adam Tunkin's membership of the group.