Case: Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544 
Outcome: approved
In Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544 Mansfield J held that the striking out of the first Kuyani claim did not of itself result in Mr McKenzie ceasing to be a party to the Kokatha claim. His Honour went on to note that the strike out did not necessarily mean that Mr McKenzie might not nonetheless be a person whose interests may be affected by the Kokatha claim and be eligible to be a party under s 84(3) of the NT Act for that reason. 13 Before turning to the statutory setting I should note first that the scheme of the Act contemplates that a person claiming native title in an area subject to a s 61 application should be given notice of that application: s 66(3) and (10); and is entitled to be a party to the proceedings in relation to that application: s 84(3)(a)(ii) and secondly that that person is entitled as a party (subject to the Court's discretion: see NTA, s 84(8)) to oppose the making of a determination of native title for the reasons advanced in subparas 3.4 and 3.5. As Mansfield J observed in Kokatha Native Title Claim v South Australia at [24]: "Where there may be a competing native title group who claim communal rights and interests which may be affected by a determination in [this] claim, but there is no application by that group over the claim area, the members of that group should not be precluded from putting forward their claim in a defensive attempt to avoid the dilution of those interests." 14 Given the submissions that have been made, it is necessary to refer in some detail to the text and structure of the NT Act. The necessary starting point is s 10 of the Act which provides that native title is "recognised and protected in accordance with the Act". I would merely note in passing that the State relies upon s 10's limitation in support of the contention that Mr McKenzie is seeking to achieve a determination in his favour while circumventing positive requirements of the Act which he has not in the past been able to satisfy. 15 Section 13(1)(a) permits an application to be made in the Federal Court under Part 3 of the Act for a determination of native title in relation to an area for which there is no "approved determination of native title". Section 61A(1) in turn positively prohibits the making of such an application for an area where there is such an approved determination. For present purposes an approved determination is a "determination of native title made on an application under paragraph (1)(a)" of s 13: see s 13(3) (emphasis added). Approved, I should add, does not mean a determination that is favourable to the claimant applicant. So much is clear from the language of s 13 itself and is made the moreso by the terms of s 225 which defines "determination of native title". It provides (insofar as presently relevant) that: "A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area ) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title area; and (b) the nature and extent of the native title rights and interests in relation to the determination area." (Emphasis in the original.) 35 The State's position in contrast is founded on s 61 as the prescribed and highly regulated vehicle by which claims for a determination are to be made. It accepts that strict adherence to the procedures of the Act can have inconvenient consequences, but contends these inhere in the very scheme of the Act. It also contends that it has the support of both appellate and first instance authorities, notably the recent Full Court decision in Moses v State of Western Australia and the decision of Mansfield J in Kokatha Native Title Claim v South Australia and of Emmett J in Munn v State of Queensland . 41 While several first instance judges have asserted a contrary view to that in Ward though without reference to it: see for example, Emmett J in Munn v State of Queensland at [8]; it was the decision of Mansfield J in Kokatha Native Title Claim v South Australia that first gave a limiting interpretation to what was said in Ward . In the Kokatha case, his Honour was dealing with applications made under s 84(5) of the NT Act by three individuals to be joined as respondent parties to the Kokatha claim, these persons asserting native title rights and interests in part of the Kokatha claim area. Consequent upon my strike out of the Kuyani determination application, they were not independently s 61 applicants having an overlapping native title determination. In dealing with the applications of these "party-applicants" Mansfield J observed (at [22]-[23]) that: "In my view, the Court has a discretion under s 84(5) to join each of the party-applicants as a party to the Kokatha claim notwithstanding that, as individuals, they are each asserting that their interests which are or may be affected by a determination of native title in the proceedings are apparently native title rights and interests. However, I do not consider that their claimed interests, if established, could provide another avenue to a determination of an entitlement to native title rights and interests in the claim area in their favour. I share the view of Emmett J in Munn at [8] to that effect. It is a view which Branson J also appears to have shared in Davis-Hurst v New South Wales Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315. In my judgment the prescriptive structure in the Act for the making of an application for the determination of native title under s 61, with the procedural requirements of s 62, and, since the Native Title Amendment Act 1998 (Cth) (the 1998 amendments), the authorisation requirements under s 251B are clear. They provide the only vehicle for the positive determination of native title rights and interests. They require the assurance that the whole of the claim group has authorised the bringing of the claim through the authorised claimants. In Yarmirr v Northern Territory (unreported, Federal Court, Olney J, 4 April 1997) his Honour stressed the importance of compliance with those provisions. See also Quall v Risk [2001] FCA 378 at [67] . I do not regard the authorities relied upon by counsel for the party-applicants as being inconsistent with that view. In Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316, the remarks of Beaumont and von Doussa JJ at 369, at [192]-[193] were made in the context of an existing competing native title claim group at least adjoining the claim area under consideration and including an area partly overlapping the relevant claim area: see Note C to the Consent Determination in Attorney-General of the Northern Territory v Ward [2003] FCAFC 283 ; (2003) 134 FCR 16." 43 Recently in Moses v State of Western Australia , the Full Court (Moore, North and Mansfield JJ) in a considered dictum reinforced the view expressed in the Kokatha case. In Moses , the Kariyarra people had made a s 61 native title determination application which overlapped two small portions of the Ngarluma/Yindjibarndi determination application. The Kariyarra people were joined as respondents in the proceedings on the latter application and were represented by solicitors but, according to their Honours, apparently did not seek to be joined as applicants and did not seek to participate after the commencement of hearings before the primary judge. The Court went on (at [18]): "His Honour considered that it was nevertheless appropriate to make a determination in relation to the application of the Kariyarra people insofar as it overlapped the Ngarluma/Yindjibarndi claim, citing State of Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [192] - [193] ( Ward (FC)): July 2003 reasons at [55]. In our view, it would not have been open to the learned primary judge to make a determination of native title over those overlapping areas in favour of the respondent Kariyarra people on the state of the evidence in this matter. A determination of native title must be made in accordance with the provisions of the NTA, including its requirements regarding proof of the composition of the claim group and proper authorisation of the named applicants. In circumstances where the Kariyarra people participated as respondents only and made no attempt to satisfy the learned primary judge that all of the requirements of the NTA had been met in respect of their overlap claim, it would not have been appropriate to nevertheless make a determination of native title in their favour: see also Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544 at [22] ; Munn v State of Queensland [2002] FCA 486." 46 The present is not a s 67 overlapping claim case and so raises directly the issue whether the Court has jurisdiction to make a determination of native title in favour of a person or group of persons who has not a s 61 application on foot in the proceedings. In my view, the Act, properly construed, requires a negative answer to this question. In this, I agree with the conclusion of Mansfield J in the Kokatha case. 47 Put shortly, a s 61 native title determination application is required to enliven the Court's jurisdiction to make a determination of native title in relation to the determination area. That determination, though, is to be made, as s 13(3) indicates, on the application the subject of the proceeding. Despite the contrary submissions of the Commonwealth, the language of s 225 does not detach the determination of native title from the application made for the determination. It is the determination made on the application that becomes the "approved determination of native title" which has such far reaching significance in the scheme of the Act.