Case: Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364
Outcome: referred to
native title determination application does not comply with s 61 of the NTA if it is clearly established that it is not made by a native title claim group. A native title claim group is a group consisting of all the persons who, according to their traditional laws and customs, had the common or group rights or interests comprising the particular native title claimed. These propositions follow from the provisions of ss 61(1) and (4), 251B and 253 of the NTA and have been stated in the cases: Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] per O'Loughlin J; Tilmouth v Northern Territory of Australia [2001] FCA 820 ; (2001) 109 FCR 240 (" Tilmouth ") at 241-242 [4] per O'Loughlin J; Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (" Landers ") at 504 [33] per Mansfield J; Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 (" Dieri People ") at 377-378 [55]-[56] per Mansfield J; McKenzie at 223 [41] per Finn J; 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 (" Hillig ") at [60] per Bennett J; Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 9) [2007] FCA 31 ; (2007) 238 ALR 1 at 230-232 [1206] - [1217] per Lindgren J; Reid v State of South Australia [2007] FCA 1479 (" Reid ") at [27] per Finn J; Kite v State of South Australia [2007] FCA 1662 (" Kite ") at [21]-[22] per Finn J. The propositions have been applied most commonly in circumstances where it is clear that the claimant group is a sub-group or sub-set or part of a native title claim group. Cases such as Tilmouth , Landers , Dieri People , McKenzie and Reid are all cases in which it was clear that the claim group was not a native title claim group. The cases also make it clear that caution needs to be exercised before concluding on a strike-out application that a claim group is a sub-group, sub-set or part of a native title claim group: Colbung v The State of Western Australia [2003] FCA 774 at [23] - [26] per Finn J; McKenzie at 223 [41] per Finn J; Hillig at [60] per Bennett J; Reid at [28] per Finn J; and Kite at [22] per Finn J. For example, it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group may itself constitute a native title claim group: Hillig at [60] per Bennett J (see also the obiter observations of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [41] ; Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) [3.130]. The importance of proper authorisation to the native title determination claim process has been emphasised many times. For present purposes, it is sufficient to refer to the remarks of French J (as his Honour then was) in Daniel v Western Australia [2002] FCA 1147 ; (2003) 194 ALR 278 at 283 [11] : It is of central importance to the conduct of native title determination applications and the exercise of the rights that flow from their registration, that those who purport to bring such applications and to exercise such rights on behalf of a group of asserted native title holders have the authority of that group to do so. Prior to the 1998 amendments there was no requirement under the Native Title Act that an applicant have such authority. The absence of that requirement led, in some cases, to conflicting and overlapping claims all carrying with them the statutory right to negotiate in respect of the grant of mineral tenements and the compulsory acquisition by Commonwealth or state governments of native title rights and interests. Although many aspects of the 1998 amendments were the subject of controversy in the public and parliamentary debates that preceded their enactment, the need for communal authorisation of claims was largely a matter of common ground. (See also Dieri People at 377 [55] per Mansfield J.)