McKenzie v State Government of South Australia & Ors [2005] FCA 22 (27 January 2005)

Last Updated: 27 January 2005

FEDERAL COURT OF AUSTRALIA

McKenzie v State Government of South Australia & Ors [2005] FCA 22

NATIVE TITLE – application to strike out native title claim under s 84C of the Native Title Act 1993 (Cth) or dismissed under O 20 r 2 of the Federal Court Rules – whether amendments to claim after 1998 resulted in substance in a fresh application such that the Act as amended by the Native Title Amendment Act 1998 applies – principles applicable to transitional provisions

NATIVE TITLE – s 61 – whether claim properly identifies the native title claim group – list of group members inaccurate and incomplete – whether method of listing founded on ascertainable principles or criteria

NATIVE TITLE – s 62 – authorisation ascribed to various disparate sources that predated fresh application and subsequent amended applications – whether applicant authorised by all the persons in the native title claim group

EVIDENCE – s 135 of Evidence Act 1995 (Cth) – whether transcript of preservation evidence could be tendered


Native Title Act 1993 (Cth) ss 61, 62, 84C, 86, 190A, 251B, 253
Native Title Amendment Act 1988 (Cth) sch 5 cl 21
Evidence Act 1995 (Cth) s 135

Bodney v Bropho [2004] FCAFC 226 cited
Landers v State of South Australia (2003) 28 FCR 495 cited
Williams v Grant [2004] FCAFC 178 cited
General Steel Industries Inc v Commission for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 cited
Wharton v State of Queensland [2003] FCA 1398 cited
Briggs v Minister for Lands for the State of NSW [2004] FCA 1056; (2004) 209 ALR 75 cited
Branfield v Wharton [2004] FCAFC 138 cited
Quall v Risk [2001] FCA 378 cited
Dieri People v State of South Australia [2003] FCA 187 cited
Strickland v Native Title Registrar (1999) 168 ALR 242 cited
Risk v National Native Title Tribunal [2000] FCA 1589 cited
Colbung v The State of Western Australia [2003] FCA 774 cited

Perry and Lloyd, Australian Native Title Law, 2003
Ford and Lee, Principles of the Law of Trusts


MARK McKENZIE v STATE GOVERNMENT OF SOUTH AUSTRALIA & ORS

No S 6004 of 1998


FINN J
ADELAIDE
27 JANUARY 2005

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 6004 OF 1998

BETWEEN:	MARK McKENZIE APPLICANT
AND:	STATE GOVERNMENT OF SOUTH AUSTRALIA & ORS RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	27 JANUARY 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The native title determination application be struck out.

















Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 6004 OF 1998

BETWEEN:	MARK McKENZIE APPLICANT
AND:	STATE GOVERNMENT OF SOUTH AUSTRALIA & ORS RESPONDENT

JUDGE:	FINN J
DATE:	27 JANUARY 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 The Aboriginal Legal Rights Movement ("the ALRM") has applied to have the Kuyani native title determination application ("the Kuyani claim") struck out under s 84C(1) of the Native Title Act 1993 (Cth) ("the Act") or else dismissed under s 84(C)(4) of the Act and O 20 r 2 of the Federal Court Rules. Mark McKenzie, the respondent to this application, is the named applicant in the native title claim in its present form.

2 The Kuyani claim was originally lodged on 19 September 1995. It has been amended on six occasions since that date. The most recent amended claim was filed without leave in this Court on 20 October 2004. This was some months after the filing of the strike out application. Leave was, nonetheless, given on the hearing of that application to treat that amended claim as the subject of the present application. I note, for reasons which will become apparent below, that the 20 October amended claim was filed after the ALRM had filed its affidavits and statements of contentions in support of its application and after a further amendment to the Kuyani claim had been made with leave on 13 October 2004.

3 The six amendments to the Kuyani claim have substantially altered its character. These amendments have altered the named applicant, the composition of the claim group and the lands the subject of the claim itself. A distinct but later Kuyani claim in respect of other land has also been combined with this claim. The effect of these alterations, as will be seen, has brought into contention whether the s 84C application should properly still be dealt with as an "Old Act" application or whether the changes have been such as to produce what is in substance a fresh application under the "New Act". The Old Act/New Act distinction refers to whether the provisions of the Act as they stood prior to ("Old Act"), or alternatively subsequent to ("New Act"), the Native Title Amendment Act 1998 (Cth) ("the 1998 Amending Act") should be applied in the present application. My own view is that such was the character of changes made to the claim after 1998 that the matter falls to be determined under the New Act and applying the provisions of that Act the amended claim ought be struck out. The native title claim group has not adequately been identified or described. Nor has Mr McKenzie provided an adequate statement in his affidavit outlining the basis on which he was authorised to make the claim by all the persons in the native title claim group.

BACKGROUND

1. The Evolving Claims

4 The 1995 Kuyani claim was made by a body corporate called the Kuyani Association Incorporated ("the Association"). It is necessary to refer in a little detail to this body because of its significance to the present application. Though the evidence about the Association and its operations is slender, it appears it was registered in 1990. Its objects are reflected in the following illustrations taken from a version of its Constitution put in evidence by the ALRM:

"(a) To establish, promote, operate and co-ordinate services and facilities and enterprises for the advancement, training and wellbeing of the Kujani people.

...

(e) To ascertain the wishes of, and provide a mechanism for the expression of community opinion including such matters as land use, land rights and land ownership and to represent such views and interests to the relevant government, public and community bodies."

Membership was open to Aboriginal people of the Kuyani tribe and (within limits) to persons who have descended from the Tribe. Membership was conferred by the decision of a membership committee and a membership fee was to be paid.

5 The Constitution, which reflected the commonplace for incorporated associations, made provision for the establishment of a Committee of Management to be elected at the annual general meeting.

6 Returning to the 1995 claim, the Association described the claimant group as encompassing 14 "principal families". The description went on to note:

"The Kujani people have formed an incorporated body to represent their interests and this organisation has completed a Community Development Plan part of which enabled the Kujani to precisely identify all the people associated with this claim."

It then made reference to a supposed tribe called the "Adnyamuthna" (this name has various spellings) and commented:

"Adnyamuthna are merely a local suburb, as it were, of Kujani as will be demonstrated by the genealogical information that will be provided in due course."

The Adnyamuthna, whose own native title determination claim was wholly overlapped by the Association’s larger claim, played a significant role in the events leading to the present application and to Mr McKenzie’s defence of it. The area encompassed in the Association’s claim application was provided in an accompanying map, which is signed by a number of Kuyani, not all of whom can be identified from their signatures. The area claimed extended (with certain exclusions):

"From Peterborough in the south to Parachilna the north of Marree on west side of Flinders Ranges; northeast to Murnpeowie, around north end of Lake Torrens west to Turret Range and Andamooka."

As compared with the current claim area, the original claim area included land covered by the Adnyamuthna claim but excluded parts of the present claim around Lake Eyre south and all of Lake Torrens.

7 Having made its 1995 claim ("SC95/4"), the Association then distributed what it described as an "Invitation to apply for Registration as an Aboriginal person who is entitled to receive benefit as a Native Title holder arising out of the Native Title Claim". In June 1998 the Association changed the description of the persons on whose behalf the 1995 claim had been lodged by adding "inter alia" the following text:

"To this list should be added the family names that appear in Attachment B, ‘Register of Kuyani, Wailpi, Bilaluppa and Yadlioura peoples’, compiled from responses to ‘Invitation to Register ...’, forms circulated through the Kuyani, Wailpi, Bilaluppa and Yadlioura peoples community and confirming exclusive attachment to the Native Title Claims SC95/1 & 4 made on their behalf by the Claimant."

8 Of significance to the present application and to Mr McKenzie’s assertion that he was authorised to make the 20 October 2004 amended claim, the annual general meeting of the Association for 1997 was held on 4 April of that year. Its minutes record that:

"Native Title Claims

The Meeting confirmed that Mr Mark McKenzie Senior should continue as Native Title Claimant until the Kuyani Native Title Claims have been determined regardless of any change in the makeup of the Executive Committees from time to time."

9 Mr McKenzie also relies upon a resolution of 1 February 1999 of the "Wati Executive Committee" of the Association for his authorisation. I note in passing that the term "wati" refers to initiated men. This handwritten document, signed by at least nine persons, stated:

"We the undersigned being men initiated according to the Aboriginal law of the Kuyani, Yadlioura, Buailpi and Bilaluppa peoples, the Wilyaru law, and as such the only Aboriginal people with authority according to Aboriginal law to speak for our land in what is now known as South Australia confirm the decision of our previous meetings to appoint one of our number Mr Mark McKenzie Snr as native title claimant and applicant for our Native Title Claim SC95/4 until the matter is settled."

10 On 30 June 1999 a delegate of the Native Title Registrar refused to accept the Association’s claim for registration under s 190A of the Act. For the purposes of that application for registration Mr McKenzie provided the delegate with two further affidavits. That of 5 March 1999, which has been put in evidence by the ALRM, referred to Mr McKenzie’s authority in relation to the Association’s claim in (inter alia) the following terms:

"2. I am delegated with authority from my fellow initiated men of the Kujani native title claimant people to act as contact person in relation to the Kujani native title claims, of which there are two: SC95/1, and claim SC95/4. Those men gave this delegated authority to me in early 1995, and I continue to hold and exercise it, in relation to the Kujani native title claim.

3. Annexed hereto marked ‘MMCK 1’ is a true copy of the list of the names of the 29 elders who appointed me to have carriage of the claims. Those watis were acting with the authority of other watis not present, as well as for themselves.

...

5. At an extraordinary general meeting of delegates to the Wati Executive Committee responsible for the Kujani native title claims held at Cadney Park, South Australia, on 1 February 1999, nine other initiated members of that committee and I resolved to confirm the earlier 1995 decision to appoint me as their delegate to deal with native title claim business on behalf of the claimant group."

11 As was earlier noted, the Association’s claim overlapped the entirety of the Adnyamuthna claim. This had given rise to proceedings in this Court between these two claimants. Following a meeting between the Association and the Adnyamuthna Native Title Management Committee ("ANTMC") a memorandum of understanding ("the MOU") was agreed the general effect of which was, for present purposes, to excise the Adnyamuthna claim area from that of the Association’s claim; to include the Kuyani in the Adnyamuthna claim; and to recognise that the Adnyamuthna people had interests in the eastern part of the Association’s claim. This agreement required that the Adnyamuthna’s and the Association’s claims be amended. I would note in passing that one of the agreed terms of the MOU was that "whatever is done in the remainder of the [Kuyani] claim area is of no concern to ANTMC".

12 An amended application was filed with leave on 22 December 2000. For present purposes the relevant amendments can be summarised as follows:

(i) the name of the applicant was changed from the Association to Mark McKenzie;

(ii) the claim group, in addition to Mr McKenzie, was made up of 43 persons named in Schedule A. Six of the "principal families" mentioned in the 1995 application were not mentioned in this group;
(iii) the claim area was changed so as to give effect to the MOU, the effect of which was to transform the original claim into what might loosely be described as an irregularly shaped sickle around what was formerly that part of the claim that overlapped the Adnyamuthna claim; and
(iv) the application was in the form of the newly prescribed Form 1 (consequent upon the 1998 Amending Act) and stated in Schedule R ("Certification or Authorisation") that:

"The certificate of the Aboriginal Representative Body for the area is to be attached labelled as Attachment R (certificate)."
As will be noted below, no such certificate was provided.

13 Mr McKenzie’s affidavit accompanying the amended application stated:

"4. I am authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and

5. I am so authorised in accordance with a process of decision making that, under traditional laws and customs of the persons in the claim group must be complied with in relation to authorising things of this kind, namely a process of consensus decision making."

14 In relation to the subject area of the claim, an order was made of 22 December 2000 combining additional areas of land the subject of a claim made in 2000 (SC00/2) with the claim in the amended claim.

15 The 2000 amended claim was further amended on 14 June 2001, 8 August 2001 and 9 August 2001.

16 The 14 June 2001 amendments insofar as presently relevant were as follows:

(i) the Schedule A claim group was enlarged to 53 named persons (including four women); and
(ii) a new Schedule R was added including a note relating to Schedule R in Schedule S.

17 Those two Schedules were as follows:

"Schedule R

The requirement set out in paragraph 190C(4)(b) of the Native Title Act 1993 (Cth) has been met in that the Applicant is a member of the Native Title Claim Group and is authorised to make the Application and deal with matters arising in relation to it by all the other persons in the Native Title Claim Group, and the Registrar of the Native Title [sic] should consider that it has been on the grounds that:

(a) The Kujani Association Incorporated was formed to represent the Kujani people and, among other things, to promote their cultural heritage and provide a mechanism for the expression of community opinion on matters including land rights and land ownership.

(b) One of the significant activities of the Kujani Association Incorporated was to lodge and pursue native title determination application SG6004/98.

(c) The decision making process of the Kujani Association Incorporated is dictated by its Constitution. By clause 8 of that Constitution a Committee of Management is elected to carry out the objects and activities of the Association.

(d) The Committee of Management appointed Mark McKenzie (the named Applicant) to lodge the native title application SG6008/98 [sic] and perform the role of the applicant in accordance with the Native Title Act 1993 (Cth) when the application was first lodged in 1998 [sic]. That decision was re-affirmed by a meeting of the Committee on 1 February 1999 and at the Annual General Meeting of the Association on 4 April 1997. A copy of the minutes of the Committee meeting held on 1 February 1999 form Attachment R1 hereto. A copy of the minutes of the Annual General Meeting of the Association held on 4 April 1997 form Attachment R2 hereto.

Schedule S

Schedule R – authority of the applicant

The applicant no longer seeks certification from the Aboriginal Representative Body for the area. Rather, the Applicant sets out how he is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group. The Applicant sets out the grounds on which the Registrar should consider that the condition in subsection 190C(4) of the Native Title Act 1993 (Cth) has been met."

18 The amendments made of 8 and 9 August 2001 insofar as presently relevant again enlarged the Schedule A claim group to 71 named person and, additionally, included "their descendants".

19 At the time of making these last amendments Mr McKenzie provided the National Native Title Tribunal with the following "Declaration" which was made on 7 August 2001. Because of the significance it has come to assume in the present application, it is necessary to set out the terms of the Declaration. Mr McKenzie declared that:

"1. I am authorised to make a native title claim on behalf of the Kujani native title claim group.

2. The amended native title claim, pursuant to a Memorandum of Understanding, which is annexed marked ‘MMA’, excludes a significant portion of the centre of the original Kujani claim area. Kujani people are, however, included within the more broadly defined Adnymathanha claim group for that central area which is now described as an Adnymathanha claim area. I am a named Applicant representing Kujani people as part of the Adnymathanha claim (SG6001/98, SC94/1).

3. The Memorandum of Understanding also sets out the agreed view that the Kujani claim would acknowledge the interest of the broader Adnymathanha claim group in the area of the Kujani claim to the East of the Adnymathanha claim, but the broader Adnymathanha claim group did not wish to make any claim to the area of the Kujani claim to the West of the Adnymathanha claim.

4. Schedule A of the Amended Native Title Claimant Application seeks to reflect the Memorandum of Understanding. The persons named in Annexure A are the currently living adult Kujani persons who have chosen to identify as Kujani and who claim an interest in the Kujani claim area to the West of the Adnymathanha claim area. The claim has been further amended to confirm that the claim group included the descendents of those named persons: emphasis added.

5. That Kujani claim group, as defined in Schedule A, also includes (for the Eastern part of the claim area) the whole of the Adnymathanha claim group, which is defined in the Adnymathanha claim by reference to the Adnymathanha Genealogies.

6. The Kujani claim group has been limited to persons who appear in the Adnymathanha Genealogies. As a consequence a number of people who were identified as Kujani in the document at Annexure MMB, entitled ‘Register of Kujani, Wailpi, Bilaluppa and Yadlioura peoples’ have not been included in the list of names at Annexure A to Schedule A. Those names excluded are names not now know to myself to be identified as Kujani persons, and they have been marked accordingly on the list at Annexure MMB. In the right hand margin of Annexure MMB are annotated the names of persons who did not previously appear on the ‘Register’ who I know to be identified as Kujani, who appear on the Adnymathanha Genealogies and who have been included in the list at Annexure A to Schedule A: emphasis added.

7. A number of the persons named in the ‘Register’ are the children of persons name [sic] in Annexure A to Schedule A. They are noted at Annexure MMB, and are included in the native title claim group by a general reference in Schedule A to the descendents of the persons named in the Annexure A."

20 The form in which the amended claim stood at the time of ALRM’s strike out application was that of 9 August 2001. On 13 October 2004, leave was given to further amend the claim in accordance with terms previously notified to the Court. For present purposes I would note that, in my view inexplicably, the Schedule A claim group reverted to the 53 persons named in the 14 June 2001 amendment and no claim was made for their descendants.

21 Leave was also given to correct typographical errors. This seems to have been interpreted liberally. On 20 October 2004 a further amended claim was filed. The Schedule A claim group was recast as 46 named persons and their descendants. As noted earlier, the parties to the present application have acquiesced in my regarding this last amended claim as being the subject of this application.

2. The Parties’ Affidavits

22 Both the ALRM and Mr McKenzie have filed supporting affidavits. For the ALRM there are two affidavits of its legal officer which explain and/or annex documentary material to which I have referred and there are affidavits by two persons claiming to be Kuyani. Ricky Coulthard, who is a member of the Kuyani Association, was included in the 1995 application but was removed from the December 2000 claim group. He states that he authorised neither his previous inclusion or his later exclusion. Nonetheless he claims to have native title rights in the claim area as a Kuyani person. Malcolm Davies, who claims to be an initiated Kuyani and a former Chairperson of the Association, likewise complains of his and his family’s exclusion from the December 2000 claim group.

23 Mr McKenzie’s affidavit of 3 December 2004, apart from disputing Mr Davies’ claim to be Kuyani, is concerned primarily with explaining the name changes that were made when settling Schedule A to the December 2000 application. He indicated that many of the people listed in the 1995 application "did not wish to make a claim to the Kuyani claim area". He indicated the process he engaged in to settle his 2000 list. He now acknowledges there were some mistakes in the inclusions and exclusions. His affidavit concludes as follows:

"44. I have recently noticed that there are some further inconsistencies in Attachment A to the Form 1 filed on 20 October 2004. I have been confused about all of the various trusts, sub-trusts and claimant registers, all of which have different names lists attached to them.

45. The people who have been incorrectly omitted from the current Attachment A are Priscilla Hull, Edith Johnson, Beatrice McKenzie, Elaine Pondi, Jason Ryan, John Raymond Solar, Serena Joy Solar, Valerie Stubbs, Arthur Treloar, Chris Treloar, Lavinia Treloar, Jonathon Vincent, Trevor Vincent, Sharna Lee Waters, Brandon Wilton, Clive Ashley Wilton, Donald William Wilton, Richard John Wilton, Robert Harold Wilton and Xavier Wilton.

46. The people who have been incorrectly included in the current Attachment A are Liz Kelty because she is not Kuyani and Lennie Stuart, who is deceased."

24 I would note by way of explanation that the references to trusts and sub-trusts in par 44 are to royalty trusts which are of no present relevance.

APPLICABLE PRINCIPLES

(1) Strike Out

25 Section 84C(1) provides that:

"If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made ) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application."

26 Beyond this provision this Court retains its power of summary dismissal under O 20 r 2 of the Federal Court Rules. It is now well accepted that applications under s 84C(1) should be approached in the same cautious way as applications under O 20 r 2: see Bodney v Bropho [2004] FCAFC 226 at [51]- [52]. The Court’s powers should be exercised only where the claim as expressed is untenable and upon the version of the evidence favourable to the respondents to the strike out: Landers v State of South Australia (2003) 28 FCR 495 at [7]. A clear case has to be made out: Williams v Grant [2004] FCAFC 178 at [48]- [49]. Nonetheless, it may require extensive argument and may be necessary to adduce evidence to establish the futility of a case: General Steel Industries Inc v Commission for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130; Bodney v Bropho at [51]-[52].

27 I would note that in this matter a considerable body of material has been relied upon beyond the bare bones of the 20 October 2004 amended application. The history of the claim has necessitated this.

(2) Old Act or New Act

28 I have referred earlier to the significance of this terminology. Section 84C was introduced into the scheme of the Act by the 1998 Amending Act. Schedule 5 to the latter Act contains a number of transitional provisions one of which (cl 21) provides that:

"Section 84C of the new Act applies where the main application mentioned in that section was made either before or after the commencement of that section. If the main application was made before the commencement, the reference in that section to section 61 or section 62 is a reference to section 61 or section 62 of the old Act."

29 As has been observed on a number of occasions that, given their differing requirements, an application which complies with s 61 of the Old Act is unlikely to comply with s 61 of the New Act. I return to this matter later in these reasons. It is for this reason that Mr McKenzie places the reliance he does on the fact that his application originated in the 1995 application, i.e. it pre-dated the 1998 amendment and thus fell within the literal terms of clause 21.

30 Some number of decisions of this Court have dealt with the principles to be applied when an Old Act application has been amended after 1998. It cannot be said that these principles are settled as is evident from several recent cases: see Wharton v State of Queensland [2003] FCA 1398; Branfield v Wharton [2004] FCAFC 138; Bodney v Bropho, above; Briggs v Minister for Lands for the State of NSW [2004] FCA 1056; (2004) 209 ALR 75. Suffice it to say for present purposes that that controversy centres upon whether an Old Act application which has been amended after 1998 is to be assessed as of course by reference to the New Act provisions: see e.g. Quall v Risk [2001] FCA 378; Dieri People v State of South Australia [2003] FCA 187; or whether it is only to be subjected to the New Act provisions if it is, in substance, "a fresh application": see e.g. Wharton v State of Queensland, at [29]; Briggs v Minister for Lands for the State of NSW at [28].

31 Given the view I take of the nature of the amendments made in this case from December 2000, it is unnecessary that I enlarge upon this controversy. It has been rehearsed at some length in Wharton, Branfield, Bodney and Briggs. Suffice it to say for present purposes is that I agree with the view expressed by Emmett J in Wharton that was summarised and adopted by Moore J in Briggs (at [28]) that:

"Section 84C directs attention to s 61 of the old Act in relation to an application made under that Act unless the application has been amended and the application as amended can fairly be characterised as a fresh application."

See also Bodney v Bropho at [84]-[85] per Stone J.

CONSIDERATION

1. Old Act/New Act

32 It is abundantly clear from the MOU, the amended applications on and from 22 December 2000, Mr McKenzie’s declaration of 7 August 2001 and his affidavit of 3 December 2004, that the application from 2000 (i) involved claim groups of a quite different character from those described in the 1995 claim and the 1998 amendment; and (ii) related to a significantly altered claim area. As the affidavit and declaration acknowledge – though this is not disclosed in the post 2000 amended applications – after the MOU was agreed many of the people included in the old application register of claimants "did not wish to make a claim to the [remaining] Kuyani claim area". To the extent that there is now any criteria apparent on the evidence which appears to unite the presently named members of the claimant group, the Declaration would suggest that one at least is that the claimants are a discrete group of Kuyani, i.e. those who claim an interest in the claim area. I note in passing that the basis upon which some only can so choose to make such a claim is not revealed, nor did Mr McIntyre QC for Mr McKenzie suggest to the contrary.

33 That one group of Kuyani can so distinguish itself by reference to the claim area from those other Kuyani who are only members of the Adnyamuthna claim group indicates why the amendment made to the claim area in December 2000 was itself a change of real significance.

34 There was in substance a fresh application made in 2000. It involved no mere further particularisation of the claim group and the claim area: cf Bodney, at [85]. I am in consequence satisfied that the s 84C strike out application is to be determined by reference to the New Act provisions.

35 This conclusion makes it unnecessary for me to – and I do not – express any view on an alternative submission put forward by the State of South Australia. It was to the effect that, when the Old Act application (SC95/4) was combined with the New Act claim (SC00/02) by order of this Court on 22 December 2000, the resultant combined claim could not be regarded simply as an amended version of the Old Act claim. It was a new application for the purposes of s 84C. This submission, I would note, was founded on the provisions of s 64(1) and (2): but cf Strickland v Native Title Registrar (1999) 168 ALR 242 at [37]-[38].

2. Compliance with s 61 and s 62

36 The ALRM’s contentions, supported by those of the State of South Australia, are that (i) the 20 October 2004 amended application, when considered in light of Mr McKenzie’s evidence, does not properly identify the native title claim group; and (ii) the authorisation claimed by Mr McKenzie is not that of the native title claim group.

37 I will consider each of these matters in turn.

(i) Describing/Naming the Native Title Claim Group

38 Section 253 of the Act gives the elusive definition of "native title claim group" for present purposes as being the native title claim group mentioned in relation to the application in the table in s 61(1). That subsection describes the persons who can make a native title determination application. These include:

"(1) A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group."

39 Section 61(4) requires that a native title determination application must name the persons in the native title claim group or otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

40 At first flush it could be said that the 20 October 2004 application on its face satisfies this requirement. The claim group members are either named or else are described generically as "descendants" of those named persons. The same could be said of each of the amended applications since December 2000 notwithstanding the marked lack of uniformity between their respective claim groups.

41 The difficulty with this view is that it is Mr McKenzie’s own evidence (quoted earlier) that the individuals named in Schedule A to the 20 October 2004 application are both under inclusive and over inclusive of the persons holding the group rights and interests comprising the native title claimed (i.e. the native title group). A subset or part of what "truly constitutes" a native title group cannot itself be a claimant group under s 61: Risk v National Native Title Tribunal [2000] FCA 1589 at [60]- [61]. While in some 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 e.g. Colbung v The State of Western Australia [2003] FCA 774 at [17]- [26]; Perry and Lloyd, Australian Native Title Law, at [3.130] (2003); the present is not such a case.

42 While the amended application simply resorts to a listing method to provide the basis for constituting the claim group, it is clear on the evidence that the listing process itself embodies criteria of some sort and reflects a methodology of some sort that has been put into practice by Mr McKenzie. Whatever glimpses one may get from the MOU, Mr McKenzie’s declaration and his 3 December 2004 affidavit as to what those criteria and Mr McKenzie’s methodology might be, it is in my view impossible to say that the application itself describes the persons "sufficiently clearly so that it can be ascertained whether any particular person is one of those persons": cf s 61(4)(b).

43 It should be emphasised that the clarity (or certainty) required is in the description of the persons constituting the group. This needs to be distinguished from what in other contexts is described as "evidential uncertainty": cf Ford and Lee, Principles of the Law of Trusts, par 5170; i.e. a person claiming to be a member of the group may not be able to furnish convincing evidence of his or her membership of a group which itself is sufficiently clearly described.

44 It probably is the case that a deal of Mr McKenzie’s activity in adding to, and subtracting from, his Schedule A lists reflected his grappling with evidential uncertainty. But what I cannot do from the material before me – and counsel for Mr McKenzie did not suggest that I could – is divine the descriptive criteria that makes the named persons members of the native title claim group. I would have to say that the fluctuation in the numbers of listed names in the various Schedules A since December 2000 does little to reassure that the naming process is one founded on ascertainable principles or criteria.

(ii) Authorisation

45 The vices in the 20 October 2004 application become the more apparent when one turns to the authorisation requirement.

46 The concept of a person being "authorised" by all the persons in the native title claim group was introduced by the 1998 Amending Act: see generally Emmett J’s comparison of the Old Act and New Act schemes in Wharton at [7] ff. The concept has been made "fundamental to the legitimacy of native title determination applications" under the New Act: Strickland v Native Title Registrar (1999) 168 ALR 242 at 259. It was not a matter that Old Act applications were required to address and it is for this reason that an application that complied with the Old Act would be unlikely to comply with the New Act, hence the importance of the transitional provisions.

47 As I noted earlier, a native title determination application under the scheme of the New Act may be made by a person who is authorised so to do by the native title claim group: s 61(1). Section 251B in turn prescribes how the making of an application can be authorised by a claim group, i.e. (a) by complying with a process of decision making which, under the claim group’s traditional laws and customs, must be complied with in relation to authorising things of that kind or (b) where there is no such process, by the persons in the group authorising a person to make the application and to deal with matters in accordance with a process of decision making agreed to and adopted by those persons for the purpose of authorising the application etc.

48 Section 62(1) of the Act in turn requires that an application must be accompanied by an affidavit sworn by the applicant that the applicant is authorised by all the person in the claim group to make the application and to deal with matters arising in relation to it and it must state "the basis on which the applicant is [so] authorised": s 62(1)(v). I merely note in passing that, what purports to be Mr McKenzie’s affidavit accompanying the 20 October 2004 amended application, amounts to no more than a signed version of the Form 1 "Affidavit" without the insertion of any of the information required by s 62 of the Act. Though the ALRM has sought to have the amended application struck out on this ground as well, I prefer to rely upon the other grounds raised by the ALRM as these relate to matters of substance not form. In saying this, though, I do not wish to be taken as condoning such non-compliance with s 62 of the Act.

49 In the course of his making his various amended applications and in seeking registration of the application Mr McKenzie ascribed his authorisation to various disparate sources. His affidavit of 5 March 1999 in support of his application for registration ascribed it initially to a delegation in early 1995 from twenty-nine watis who acted with the authority of other watis who were not present as well as for themselves. His December 2000 amended application and affidavit ascribed it to a process of decision making that, under traditional laws and customs had to be complied with to authorise the application etc. The 2001 amended applications and affidavits in turn uniformly ascribe it to a Kuyani Association Committee of Management decision which was affirmed at the Association’s annual general meeting on 4 April 1997 and reaffirmed by the Committee on 1 February 1999. The two 2004 amended applications mirror those of 2001. I would note in passing that all of the 2001 and 2004 amended applications assert incorrectly that the original 1995 application was lodged in 1998.

50 I have previously quoted the terms of the 1997 minutes and the 1999 Committee reaffirmation. Mr McKenzie in the 20 October 2004 amended application does not refer to any document recording the original Committee decision to authorise his making the 1995 claim. On a view of the available evidence most generous to him, I am prepared to infer that this authorisation was in fact that given by the 29 watis to which he referred in his 5 March 1999 affidavit.

51 I should add that for the purposes of the present application Mr McKenzie relies as well on the terms of the MOU for his authorisation in relation to the December 2000 and the later amended applications notwithstanding no mention of it is made in the amended application (though it is mentioned in his 3 December 2004 affidavit).

52 To appreciate the possible significance of the three pre-2000 sources of authorisation claimed for the 20 October 2004 amended application, it is important to recall the context in which these alleged acts of authorisation were given. The applicant at all relevant times was the Association and the acts of authorisation relied upon were actions of organs of the Association, i.e. its Committee of Management and of its annual general meeting. The authorisation for two of these three acts (i.e. the original Committee decision and the 1997 annual general meeting confirmation) occurred prior to the enactment of the authorisation requirement of s 61(1) (as explained by s 251B).

53 It clearly is the case on the evidence before me that a member of the pre-2000 native title claim group did not have to be a member of the Association. Both the 1995 and 1998 descriptions of the group and the terms of the "Invitation to apply for Registration etc" evidence this. Conversely, on the evidence, there were persons who were members of the Association and who voted at the 1997 annual general meeting who were not Kuyani on Mr McKenzie’s evidence.

54 It further is the case that there is no evidence before me to suggest that a committee or committees of the Association was or were in fact used as a convenient vehicle through which a traditional decision making process could be put into effect (cf s 251B(a)) or that the persons in the claim group agreed to and adopted the use of organs of the Association to authorise both the making of an application and dealing with matters that might arise (cf s 251B(b)).

55 As in Brigg’s case, the interposing of an incorporated body in a native title claim has impeded rather than facilitated compliance with the New Act provisions. Though it has not been suggested by the ALRM or by the State, probably the best that can be said of the alleged pre-2000 acts of "authorisation" is that they authorised Mr McKenzie to act as agent of the Association in making the application, etc. However, I need not enter upon this issue further as the acts relied upon are without significance at all in relation to the 20 October 2004 amended application.

56 As I earlier noted, the 22 December 2000 amended application was in substance a fresh native title claim for a new native title claim group and for a new claim area. The relevant authorisation had to be given by that claim group, not by the different claim group involved in the 1995 application. I have already indicated the fatal shortcoming of the 20 October 2004 application in describing or otherwise identifying its claim group. More importantly, there is simply no indication of any sort in the evidence, let alone in the prescribed affidavit (see s 62(1) of the Act), that this "group" has purportedly authorised Mr McKenzie in a way that satisfies the requirements of s 251B of the Act.

57 It is seemingly for this reason that Mr McKenzie belatedly has sought to derive comfort from the MOU and his Declaration both for the purposes of defining the group and for providing his authorisation to make the 22 December 2000 and subsequent applications. The difficulties in this contention are obvious, even if one was to overlook the absence of any indication in the 20 October 2004 amended application and affidavit that the MOU or the Declaration have this claimed source quality.

58 First, the MOU does not define the new native title group. Nor does it provide any agreed authorisation to the continuing (i.e. the "fresh") Kuyani claim. The Adnyamuthna expressly disclaim having any concern in the claim area of that claim.

59 Secondly, the MOU on its face is not an agreement between the Adnyamuthna and the new claim group. It is an agreement with the Association which is a stranger to the 22 December 2000 amended application. There is no material before me indicating who attended and participated in the meeting resulting in the MOU.

60 Thirdly, the Declaration asserts that Mr McKenzie is authorised by the "Kuyani native title claim group" to make the claim but does not reveal in any way the basis on which he was authorised by all the persons in the group to make that claim: cf s 62(1)(v) of the Act. Moreover, while the Declaration partially describes bases and a process by which persons’ names were put on the list making up the claim group (including, I would note, self selection), it does not provide a sufficiently clear description of the 20 October 2004 claim group which, as has already been noted, is inaccurately described in any event. Its concern was only with the 22 December group. In successive amended applications that group underwent mutations. The descriptions given in the Declaration provide no principled explanation for this phenomenon which could satisfy the Act’s requirement that the persons in the claim group are described sufficiently clearly so that it can be ascertained whether any particular person is one of those persons: s 61(4)(b).

CONCLUSION

61 There is, in my view, no arguable basis upon which Mr McKenzie can be said to have satisfied the requirements of s 61(4) and s 62(1)(iv) and (v) of the Act. The case is not one in which a further opportunity to amend should be given. The time for indulgence has long since passed. The history of the matter, particularly since the filing of the s 84C application and the amendments made thereafter, provides no grounds for reassurance that the application’s flaws can be cured. What would be required would be a new application. The proper course, in my view, is for the members of the native title claim group to consider whether that is a course they wish to adopt.

62 I will order that the native title determination application be struck out.

A RULING ON EVIDENCE

63 The ALRM sought on the hearing of this application to tender under s 86 of the Native Title Act, the transcript of preservation evidence taken by me at Port Augusta on 25 to 28 October 2004. I refused the tender and indicated that I would provide reasons for my refusal. These are those reasons.

64 The tender was refused under s 135 of the Evidence Act 1995 (Cth) because I considered it would be unfairly prejudicial to Mr McKenzie. At the preservation hearing, which occurred after the filing of the s 84C strike out application, objection was taken by Mr McKenzie’s counsel, Mr McIntyre QC, to a line of questioning of Mr McKenzie which seemed reasonably and understandably to relate directly to the strike out application. Mr Maurice QC for the ALRM disclaimed that such was his purpose. Mr McIntyre withdrew his objection but, as he said in relation to the tender, he conducted his re-examination in a quite different way in light of what Mr Maurice said. This was apparent from the re-examination itself and I accept what Mr McIntyre has said. I am in consequence satisfied that there would have been prejudice suffered if the tender was allowed.

65 More importantly, as I indicated at the preservation hearing, the evidence was there taken in a contextual vacuum. There was no issue being determined, no other evidence being put to support, contradict, or qualify what was being said by Mr McKenzie. In my view it would be quite unfair to use that evidence for the purposes the ALRM now proposes. I am not obliged under s 86 of the Native Title Act to admit the evidence. In light of the above considerations, I am satisfied I should not admit it.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated: 27 January 2005

Counsel for the Applicant:	Mr G McIntyre SC with Mr J Keen
Solicitor for the Applicant:	Corsers
Counsel for the Aboriginal Legal Rights Movement:	Ms S Phillips
Solicitor for the Aboriginal Legal Rights Movement:	Ms S Lucas
Counsel for the State of South Australia:	Ms D Seal with Mr S McCaul
Solicitor for the State of South Australia:	Crown Solicitors
Date of Hearing:	20 December 2004
Date of Judgment:	27 January 2005