Editors --- "Dieri People v South Australia - Case Summary" [2001] AUIndigLawRpr 44; (2001) 6(4) Australian Indigenous Law Reporter 35
Court and Tribunal Decisions - Australia
Dieri People v South Australia
Federal Court of Australia (Mansfield J)
15 September 2000
Native title — orders made that the applicants provide particulars of claim — further and better particulars
Facts:
An application was made in the Federal Court under the Native Title Act 1993 (Cth) relating to land in the north east of South Australia by representatives of the Dieri People.
In December 1998 the Court gave directions requiring the applicants to specify any area of land or waters excluded from the claim area and provide full particulars of their claim. The applicants filed and served particulars of claim in June 1999. In January 2000 the State of South Australia requested further information and particulars. The applicants filed and served a document providing further information in relation to the State’s request in March 2000. The State applied for an order that the applicants provide further particulars. By separate motion various respondents also sought further particulars.
Held:
1. The applicants are not excused from pleading in their particulars facts that the order requires to be pleaded simply because that will require the disclosure of evidence of those facts to be adduced at the hearing. [13]
2. Reference in the applicants’ particulars to material in an annexed affidavit reviewing published information about the claim area and annexing voluminous historical and archaeological material is not a sufficient or satisfactory means of complying with the order. [14], [15]
3. A claim that the provision of certain particulars would require the disclosure of confidential information, which should not be pleaded but be adduced at trial subject to appropriate orders restricting the dissemination of such information, does not provide a foundation or an explanation for a failure to comply with the order. Confidential information should be protected from publication in appropriate circumstances and upon appropriate terms but mere assertion of confidentiality (unless acknowledged by the other parties), will rarely provide a proper basis for an order under s 50 of the Federal Court of Australia Act 1976 (Cth). [16]
4. The applicants were required to provide further particulars on the following matters ([19], [28], [45]):
- the identification of the claim area;
- the description of the applicant group including sub groups with special affiliation to particular areas;
- whether the native title rights claimed are exclusive or limited;
- the composition of the native title claim group;
- the traditional laws or customs under which each of the claimed rights and interests are possessed;
- what rights of descent were asserted in respect of the entitlement to enjoy the claimed rights;
- the extent to which the claimed rights extended to minerals and surface features such as water;
- the classes of resources over which native title rights were claimed. l