Case: Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315
Outcome: cited
On 4 December 2003, after a contested hearing in the above proceedings, I ordered that the present applicant, Mr Kemp, be joined as a party to each of the proceedings (see Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315). I did so in reliance on unchallenged evidence which tended to establish that Mr Kemp is a descendant of the Pirripaayi people who are traditionally associated by Aboriginal law and custom with an area which includes the Saltwater land. 3 In Davis-Hurst at [14]-[15] I observed: 'It is apparently because of resource implications that Mr Kemp does not wish to advance a claim for a determination of native title in respect of Saltwater, either on his own behalf, or on behalf of himself and other living descendents of the Pirripaayi people. However, he is concerned that a determination in favour of the applicant would give formal recognition to a version of history that does not recognise the Pirripaayi people as the traditional owners of Saltwater. Mr Kemp's concern is not alleviated by the possibility that there may be extensive, or even complete, overlaps between the present claimant group and the living descendants of the Pirripaayi people. Mr Kemp is further concerned, as I understand him, that it is possible, or even likely, that the applicant is the wrong person to represent the claimant group, however described, in these proceedings. Mr Kemp believes, on the basis of information which he has obtained from Mr Marr, that under traditional Aboriginal law and custom a woman cannot claim the areas of land the subject of the applications. He also believes, apparently on the same basis, that the applicant may not accept, or perhaps be aware of, the correct dreaming story and the customary laws of the area in question. As is mentioned above, his belief is that the applicant accepts a version of the history of the claim areas that fails to give proper recognition to the connection of the Pirripaayi people to Saltwater.' 4 I noted at [19] that Mr Kemp's evidence disclosed two underlying concerns. First, a concern that Dr Davis-Hurst and the Kattang people of the Manning Valley are not the group who hold the common or group rights comprising the native title in the Saltwater land. Secondly, a concern as to the identity of the traditional laws and customs under which that native title is held. 5 In Davis-Hurst at [27] I concluded that Mr Kemp, as a descendant of the Pirripaayi people, had standing to oppose the making of the determinations of native title sought by Dr Davis-Hurst. No appeal was instituted against the order made on 4 June 2003 joining Mr Kemp as a respondent to the applications for determinations of native title in the Saltwater land. 6 On 11 August 2005 the second respondent, the Minister for Lands for the State of New South Wales, applied to the Registrar of the National Native Title Tribunal pursuant to s 24CG of the Native Title Act 1993 (Cth) ('the Act') for the registration of an indigenous land use agreement ('the Agreement') in respect of the Saltwater land. Mr Kemp is not a party to the Agreement. The parties to the Agreement are the second to seventh respondents to this proceeding; that is, two Ministers of State for New South Wales, the Director-General of a New South Wales government department, the local government body for the relevant area, Dr Davis-Hurst and an entity described in the recitals to the Agreement as having been incorporated under the Aboriginal Councils and Association Act 1976 (Cth) for the purpose of holding native title in trust for the Saltwater People. 7 The recitals to the Agreement refer to the proceedings in this Court for determinations of native title in respect of the Saltwater land. They then record: 'D. The State on the basis of evidence provided by the Registered Native Title Claimant is prepared to recognise that the Saltwater People hold native title rights and interests in the Saltwater National Park and part of the Khappinghat Nature Reserve. E. The Parties have agreed to enter into this Agreement for the purpose of: (a) recognising that the Applicant and the Saltwater People hold native title in the land and waters concerned; (b) regulating the exercise by the Saltwater People and the Saltwater Tribal Council of the native title rights and interests in the Agreement Area; (c) providing for a role for the Saltwater Tribal Council in the future management of the Saltwater National Park and part of the Khappinghat Nature Reserve. (d) providing for the withdrawal of native title determination applications NC95/4 (NG6013/98) and NC95/5 (NG6014/98); and (e) settling other matters between the Parties. F. The Greater Taree City Council, the land manager of the former Saltwater Reserve, agrees with and supports the making of this Agreement to resolve native title applications NC95/4 (NG6013/98) and NC95/5 (NG6014/98).'