FEDERAL COURT OF AUSTRALIA

Bodney v State of Western Australia [2003] FCA 890

NATIVE TITLE – Motions to strike out applications for determination of native title – Applications filed prior to 1998 amendments to Native Title Act – Some applications amended after that time – Form of s 61 of Native Title Act relevant to strike out motions – Necessity under old form of s 61 to identify or describe members of claimant group – Whether ‘old Act’ applications satisfy this requirement – Necessity under ‘new Act’ for authorisation of claimant by members of claimant group – Discussion about need for correspondence between persons identified as holding native title rights and interests and those on behalf of whom application is made – Lack of authorisation of ‘new Act’ applications by members of claimant group.

Native Title Act 1993 (Cth) ss 61, 84C and 251B

CORRIE CHRISTOPHER BODNEY v STATE OF WESTERN AUSTRALIA AND ORS

WAG  137 of 1998

WAG  138 of 1998

WAG  139 of 1998

WAG  140 of 1998

WAG  149 of 1998

WILCOX J

25 AUGUST 2003

SYDNEY

THE COURT ORDERS THAT:

1.                  Native title applications WAG 137 of 1998, WAG 138 of 1998, WAG 139 of 1998, WAG 140 of 1998 and WAG 149 of 1998 each be struck out.

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

REASONS FOR JUDGMENT

WILCOX J:

1                     There are before the Court notices of motion to strike out each of five native title applications made by Corrie Christopher Bodney (WAG 137 of 1998, WAG 138 of 1998, WAG 139 of 1998, WAG 140 of 1998 and WAG 149 of 1998) (‘the Bodney applications’).

2                     The strike out motions are made by Robert Charles Bropho, William Warrell, Gregory Lawrence Garlett, Kelvin Patrick Garlett, Richard Wilkes and Albert Corunna (‘the applicants’).  The applicants are also applicants in two native title claims which are commonly called ‘the Combined Metro applications’ and which overlap with the Bodney applications.  The reason for the name, no doubt, is that all the relevant sites are located within, or near, the Perth metropolitan area.  Each of the applicants has been joined as a respondent to each of the Bodney applications.

3                     An unusual feature of the motions is that they were filed only after the taking of considerable evidence concerning the substantive claims.  This evidence was taken by Beaumont J, both in court in Perth and on country.  However, by reason of ill-health, his Honour was compelled to retire from the matters.  They were assigned to me, on the basis that the evidence already given would not be repeated; and that I would read and apply the evidence already given, along with such further evidence as the parties might wish to adduce.

The strike out motions

4                     The applicants bringing the strike out motions rely, alternatively, on two provisions: s 84C(1) of the Native Title Act 1993 (Cth) (‘the Act’) and Order 20 rule 2(1)(c) of the Federal Court Rules (‘the Rules’).

5                     Section 84C(1) of the Act relevantly provides:

‘(1)      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.

(2)               The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1).

                        …

(4)              This section does not prevent the making of any other application to strike out the main application.’  (Original highlighting)

6                     Order 20 rule 2 of the Rules reads:

‘(1)      Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding –

            …

(c)                    the proceeding is an abuse of the process of the Court,

the Courtmay order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.’

7                     Subrule (2) permits the Court to receive evidence on the hearing of an application for an order under subrule (1).

8                     Although the applicants put their motions on two alternative bases, they rely in each case on the contention that the Bodney applications fail to comply with requirements of s 61 of the Act.

9                     Some of the Bodney applications were made under the Act as originally enacted (‘the old Act’).  Some were made under the Act as amended on 30 September 1998 (‘the new Act’).  The parties accept that, in considering whether a particular Bodney application complies with s 61 of the Act, it is prima facie necessary to have regard to the form of s 61 as at the date of the relevant application; subject, however, to the qualification that, if an old Act application has been amended after commencement of the new Act, s 61 of the new Act applies.  This acceptance is consistent with the conclusion of O’Loughlin J in Quall v Risk (‘Quall’) [2001] FCA 378 at para 65.  Quall was followed by Mansfield J in Dieri People v South Australia [2003] FCA 187 at para 18.

10                  Both in its original and amended form, s 61(1) of the Act has contained a table setting out the persons who may make an application for determination of native title; before 1998, to the Native Title Registrar; since 1998, to this Court.  Before 1998, the relevant persons were:

‘(1)      A person or persons claiming to hold the native title either alone or with others; or

(2)               A person who holds an interest in relation to the whole of the area in relation to which the determination is sought; or

(3)               The Commonwealth Minister; or

(4)               The State Minister or the Territory Minister, if the determination is sought in relation to an area wholly within the jurisdictional limits of the State or Territory concerned.’

11                  Section 61(3) of the old Act read:

‘An application made by a person or persons claiming to hold native title, or to be entitled to compensation, with others must describe or otherwise identify those others.  In doing so, it is not necessary to name them or to say how many there are.’

12                  Since 1998, the s 61(1) table has identified the following persons:

‘(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; or

(2)               A person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought; or

(3)               The Commonwealth Minister; or

(4)               The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned.’  (Original highlighting)

13                  Note 2 to this table mentions that s 251B ‘states what it means for a person or persons to be authorised by all the persons in the native title claim group’.  Section 251B reads as follows:

‘For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorisea person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)       where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind - the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)       where there is no such process - the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.’  (Original highlighting)

14                  It is necessary also to mention subss (2) and (4) of s 61 of the new Act.  Those subsections read:

‘(2)      In the case of:

(a)     a native title determination application made by a person or persons authorised to make the application by a native title claim group; or

(b)     a compensation application made by a person or persons authorised to make the application by a compensation claim group;

the following apply:

(c)     the person is, or the persons are jointly, the applicant; and

(d)     none of the other members of the native title claim group or compensation claim group is the applicant.

 …

(4)       A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:

(a)     name the persons; or

(b)     otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.’  (Original highlighting)

15                  All five of the Bodney applications for determination were filed before 30 September 1998, but two of them have been amended since that date.  As a consequence, it is necessary for me to consider the position under both the old Act and the new Act.

The old Act applications

(i)         The applications

16                  The old Act form of s 61 is relevant to Bodney applications WAG 138 of 1996 (Wanneroo Road), WAG 139 of 1998 (Burswood Island) and WAG 140 of 1998 (Swanbourne).

(ii) Wanneroo Road

17                 The application filed in respect of the Wanneroo Road land identifies Mr Bodney as sole claimant.  The application states that the persons who hold native title are ‘Ballaruk People – Bodney Family Group’.  At a later point in the application, it is stated:

‘We are the living descendant [sic] of the Ballaruk peoples the prior owners of this land the Whadjuck Territorial boundary … before colonization … The Native Title rights and interests to be held by the Ballaruks people, pursuant to their traditional lands and waters, confer and continue to confer, possession, occupation, use and enjoyment of the land and access to the land and waters’.  The application contained no explanation of the description ‘Bodney Family Group’.

18                  The application has never been amended.

19                  It will be recalled that s 61(3) of the old Act required that an application made by a person or persons claiming to hold native title with others ‘must describe or otherwise identify those others’.  The Wanneroo Road application constitutes a claim by Mr Bodney that he holds native title with others, whom he identifies only as ‘Ballaruk People – Bodney Family Group’.  It may be inferred from later statements in the application that Mr Bodney is asserting that the persons who held native title to the land at the date of sovereignty, presumably 1829, were the Ballaruk People.  But it is clear that he is not claiming native title on behalf of the Ballaruk People as a whole, but only on behalf of that portion of the Ballaruk People who are within the ‘Bodney Family Group’.  The difficulty is that Mr Bodney does not provide any meaningful description or identification of the people who fall within the group.  The concept of family is a nebulous one; how far is the network of relationships intended to extend in this case?  Mr Bodney does not say.  His application does not comply with s 61(3) of the old Act.

(iii)       Burswood Island

20                  The situation in relation to this application is similar to that concerning Wanneroo Road, the only difference being that the claimed land was described as Joobaitch land.  Once again, the claimant is Mr Bodney and the relevant native title group is given as ‘Ballaruk People – Bodney Family Group’, without further explanation.  This application, also, fails to comply with s 61(3) of the old Act.

(iii)       Swanbourne

21                  Once again, the application identifies Mr Bodney as sole claimant, this time on behalf of ‘Ballaruk Family Group’.  This is an uninformative description.  It does not meet the requirements of the old Act form of s 61(3).

The new Act applications

(i)         The applications

22                  Applications WAG 137 of 1998 (Hartfield Park) and WAG 149 of 1998 (the main claim) have both been amended since 30 September 1998.  Consequently, the rule stated in Quall requires that the question concerning compliance with s 61 of the Act be determined by reference to the terms of the new Act.

(ii)        Hartfield Park

23                  The Hartfield Park application is made by Mr Bodney alone.  In the part of the prescribed application form (Form 1) that deals with authorisation, Mr Bodney states:

‘The applicant is a member of the native title claim group and is authorised by the claim group to make this application.

The affidavit which accompanies this application deposes to the necessary authorisation of the applicants to make this application and deal with matters arising in relation to it.

The traditional custom of decision making amongst the Ballaruk and Didjarruk People’s [sic] is that the elders are always consulted and have a significant influence over any decision made.  When the matter under consideration is one pertaining to tribal matters, then the decision of the elders is final and above question.  When a decision is to made [sic] over other matters then the older male and female members of the Ballaruk and Didjarruk families will meet with the elders to discuss the issue.  There may be a number of meetings before a decision is finally made.  The aim is always for concensus [sic], but a majority will succeed if it is large enough.  This process of decision making has been used from time immemorial.’

24                  In Schedule A, the portion of the form in which applicants are expected to set out either the names of the persons on whose behalf the application is made or a ‘sufficiently clear description’ of those persons, Mr Bodney states:

‘The applicant claims on behalf of the native title claim group known as Ballaruk and Didjarruk.  The claim group consists of the biological descendants of Melba Armitage (Bluffie) and William Bodney (of their union).

I “Corrie” Christopher Robert Bodney make this claim on behalf of the Bodney family group and myself, our children, their children and their children’s children to their traditional lands in accordance with Aboriginal lore and its code of ethics.

The changes being:

The inclusion of the word Didjarruk, which is part of the biological relationship of the Ballaruk clan group a connection of the two bloods of the Aboriginal society’s [sic] the prior owners of the Whadjuk territorial boundary’s [sic] before British sovereignty.’

25                  The evidence indicates that Melba Armitage and William Bodney were Mr Bodney’s parents.  The evidence also shows that this couple had five children.  In order of birth they were: Cyril Bodney (who is said to be mentally incapacitated and childless); William Lucas Bodney (who has been specifically excluded from the applicant group on the basis that he has broken Aboriginal customary law); Corrie Christopher Bodney (the native title applicant, who has 12 children); Isobel Dawson (who is now deceased but left surviving children) and Louise Bodney (who has children).

26                  There is also evidence as to Mr Bodney’s wider family.  His first cousin, Margaret Gentle, has deposed to the fact that her father, David Gentle, was the brother of Melba Armitage (born Melba Gentle).  Ms Gentle has borne eight children, of whom two are deceased.  She has grandchildren and great-grandchildren.  Ms Gentle asserts a belief that she holds ‘native title rights and interests at least similar to the native title rights and interests claimed by Corrie Bodney on the basis of biological descent’.  She says she never authorised Mr Bodney to bring this application on her behalf.

27                  A further affidavit, of William Warrell, reveals that Melba Armitage had three children to Jack Coomer, apparently before her marriage to William Bodney, the applicant’s father.  There are living descendants of Melba Armitage and Jack Coomer.

28                  The meaning of native title, under the new Act, is explained by s 223(1) of that Act:

‘The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)     the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)          the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)     the rights and interests are recognised by the common law of Australia.’  (Original highlighting)

29                  The terms ‘traditional laws’ and ‘traditional customs’ have not been defined by statute, either in the old Act or the new Act.  However, in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 194 ALR 538, Gleeson CJ, Gummow and Hayne JJ explained (at para 38) what was meant.  They said:

‘When it is recognised that the subject matter of the inquiry is rights and interests (in fact rights and interests in relation to land or waters) it is clear that the laws or customs in which those rights or interests find their origins must be laws or customs having a normative content and deriving, therefore, from a body of norms or normative system – the body of norms or normative system that existed before sovereignty.’

30                  Although their Honours were speaking of the effect of the statute, the position seems not to be significantly different from the common law situation explained by Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 61:

‘But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.’

31                  In Tilmouth v Northern Territory of Australia (‘Tilmouth’) [2001] FCA 820; 109 FCR 240, O’Loughlin J quoted this statement and continued (at para 4):

‘I emphasise his Honour’s use of the words “community” and “communal”.  I take his Honour’s remarks as indicating the community is [sic – as?] a composite whole as distinct from subgroups of subsets or clans or divisions within that larger community but forming part of that community.’

32                  In Edward Landers v South Australia (‘Edward Landers’) [2003] FCA 264 at para 33, Mansfield J said:

‘… s 61(4) requires the application to be on behalf of the people who have authorised it.  It does not permit the making of a claim by a native title determination application by a subgroup of the native title claim group, or the grant of native title to a subgroup of the real native title claim group.’

33                  It is clear, from the application itself, that Mr Bodney’s claim is that the Aboriginal people who, at sovereignty, possessed native title rights and interests over the subject land were the group known as Ballaruk and Didjarruk.  It is apparent from his own evidence that there are people, other than his siblings and their children, whom he regards as Ballaruk and Didjarruk.  In the course of cross-examination by Mr Hershowitz, Mr Bodney was asked about a meeting held in April 1999 at which, he said, there was confirmation of his authority to make a native title claim.  He said the meeting was of members of the Ballaruk Aboriginal Corporation, of which he was President.  Mr Bodney said that ‘thirty senior members’ took part in the meeting.  He was asked who was present.  Mr Bodney mentioned the names of several families and finished: ‘they’re all family’.  His evidence went on:

‘MR HERSHOWITZ:   You don’t remember specifically who was there?

CORRIE BODNEY:     No, they were the ---

MR HERSHOWITZ:    These were all senior members though?

CORRIE BODNEY:     Senior members, yes.

MR HERSHOWITZ:    Are they both Ballarruk and Didjarruk people?

CORRIE BODNEY:     Well, they’re all the same bloodline, yes.’

34                  Later in his evidence, Mr Bodney said that notices about the meeting were sent to ‘all Ballarruk and Didjarruk people’.  His evidence went on:

‘MR HERSHOWITZ:   Can you be certain that all the necessary persons attended the meeting?

CORRIE BODNEY:     Well it doesn’t mean to say it has to be all the main people; as long as the majority of the people were there, because as I say there’s only a small majority of the Ballarruk and Didjarruk people now left.  We are the last living descendants.

MR HERSHOWITZ:    I think you said in your evidence there are approximately 150, is that correct.

CORRIE BODNEY:     About 150.  And, as I say, that’s counting children, small children and all.

MR HERSHOWITZ:    So how many senior members would there be out of that 150; do you have any idea?

CORRIE BODNEY:     Well, I’d say 35 of them, or 40.

MR HERSHOWITZ:    35 or 40?

CORRIE BODNEY:     Yes.

MR HERSHOWITZ:    And there were 30 who attended the meeting?

CORRIE BODNEY:     Yes.

MR HERSHOWITZ:    So some weren’t present obviously?

CORRIE BODNEY:     Some weren’t present, as I said, William Lucas Bodney was not present because he wasn’t informed.’

35                  Mr Hershowitz asked Mr Bodney about the exclusion from the clan group of his brother, William Lucas Bodney.  Mr Bodney said his brother ‘committed an act of violation of the law’.  The evidence went on:

‘MR HERSHOWITZ:   Now, by virtue of what authority did you, could you unilaterally exclude him?

CORRIE BODNEY:     As the leader and by the other people involved of the clan group.

MR HERSHOWITZ:    Which other people are those, Mr Bodney?

CORRIE BODNEY:     The Ballarruk and Didjarruk people.

MR HERSHOWITZ:    Was a meeting held to discuss that?

CORRIE BODNEY:     We spoke about it; we didn’t call a meeting, but we spoke about it.’

36                  These passages demonstrate that Mr Bodney recognises that there is a body of people who are properly described as ‘Ballarruk and Didjarruk people’ and who are not descendants of his own parents, Melba Armitage and William Bodney.  On his own case, it was the Ballarruk and Didjarruk people who held native title rights and interests at sovereignty.  Mr Bodney claims those rights and interests passed by biological descent; he says to himself and his immediate family (other than his brother William Lucas Bodney).  However, on Mr Bodney’s own logic, any native title rights and interests held at sovereignty by the Ballarruk and/or Didjarruk people must equally have passed to their other descendants.  So it is apparent that this is a case, like Edward Landers, of ‘the making of a claim by a subgroup of the native title claim group’.  According to the view expressed by Mansfield J, this is not permitted by the Act; there must be a strict correspondence between the identity of the group that is claimed to hold the native title and the group on whose behalf the claim is made.

37                  Although Mr Bodney concedes, in his amended Hartfield Park claim, that the proper identification of the native title claim group is the ‘group known as Ballarruk and Didjarruk’, his claim is made only on behalf of a subgroup, the biological descendants of his parents. 

38                  The situation in this case is not unlike that considered by O’Loughlin J in Risk v National Native Title Tribunal [2000] FCA 1589.  A delegate of the Registrar of the Tribunal had accepted for registration a claim lodged by Kevin Lance Quall on behalf of himself and seven other family members.  It was apparent from the application itself that Mr Quall regarded the claim group as being members of a wider native title group, the Danggalaba clan.  At paras 60-61, O’Loughlin J said:

‘A native title claim group is not established or recognised merely because a group of people (of whatever number) call themselves a native title claim group.  It is incumbent on the delegate to satisfy herself that the claimants truly constitute such a group.  I cannot, with respect, accept these passages in the delegate’s reasons.  In the first place, it seems to assume that a family, which is known to be part only of a community, is entitled to claim native title, even though other members of the community (who in the case before the delegate have not been identified) have, for one reason or another, not been included in the application.  In the second place, the acceptance of a small family group (when it is known that it forms part of a larger community) is inconsistent with the philosophy that is to be found in the table to s 61; that section talks of the persons who, as a group, hold “the common or group rights and interests”.  The eight members of the Quall family may be part of the group but they are not the group.  The applicant (in this case, Mr Quall) should be seen to be authorised by all persons who relevantly hold the common or group rights and interests.  There is no mandate for proceeding upon the undertaking or arrangement that the family of eight will not exclude other members of the Danggalaba Clan: nor is it permissible to proceed upon the undertaking or arrangement that the family of eight will hold the entitlements that they achieve on some form of trust for the other members of the Danggalaba Clan ...

In my opinion there were two discernible errors in the delegate’s reasons.  First she assumed, without inquiring, that the family of eight was a native title claim group.  Secondly, she accepted a claim for registration by a group of people who were, self evidently, part only a [sic] larger group (the Danggalaba Clan) when there was no evidence of authorisation by, or identification of, the other members of the Danggalaba Clan.’

39                  If the view taken in Tilmouth and Edward Landers is correct, it is extremely difficult to see how a native title claim can succeed where the claimant group is limited to the descendants of a couple who are removed only a generation or two from the present.  Even where the relevant date of sovereignty is comparatively late, as in Western Australia and South Australia, there must have been several generations of people between those alive at the date of sovereignty (and constituting the people who acknowledged the traditional laws, and observed the fundamental customs, that existed at that time) and those who now claim to acknowledge those laws and observe those customs.  Ordinarily, the pool of descendants from particular ancestors expands with each generation.  I realise that white settlement has had a devastating effect upon many Aboriginal populations.  Nonetheless, it would be remarkable indeed if all but one of the lines of descent from the various couples alive at sovereignty had terminated between that time and the present day.

40                  One difficulty about the Tilmouth/Edward Landers view is that it effectively gives a veto right to any significant body of members of the group that allegedly holds the relevant native title rights and interests and does not wish to support the claim of a particular putative applicant.  It is fundamental that the applicant for determination must be authorised by the group as a whole, at least on a consensus basis.  Therefore, by denying their consent to the claim, the dissidents could present a claim on behalf of the wider group; yet on the Tilmouth/Edward Lander approach, no narrower claimant group could be selected.  It is difficult to reconcile this result with the reference in s 223 of the new Act to ‘individual’ native title rights and interests.

41                  I do not think it necessary, in the context of these motions, to express a concluded view on the question whether it is possible for a person to make a native title determination claim on behalf of himself or herself alone, or a small group, in respect of rights and interests that are held by a wider group of people.  One thing is certain; any claim must be authorised by the group on behalf of whom the claim is made.  There is a problem about authorisation of the Hartfield Park claim.  At para 13 above, I set out the terms of s 251B of the new Act.  Mr Bodney relies on both the alternatives set out in that section.  However, the application does not assert the existence of any ‘process of decision-making’ amongst the descendants of Melba Armitage and William Bodney.  Even now, there is no evidence of such a process.  In relation to the second alternative, as indicated, Mr Bodney claimed the April 1999 meeting confirmed his authority in relation to making a native title claim or claims.  However, this was not a meeting of the descendants of Melba Armitage and William Bodney, as such.  It seems that Mr Bodney was the only one of the five children who attended.  There is evidence that some of his children were present but no information is provided about Mr Bodney’s nieces and nephews; indeed, he is uncertain about the extent of their existence.  Even if the April 1999 meeting was to be relied upon, there is no evidence as to the terms of the authority allegedly conferred on Mr Bodney or even the identity of the relevant claims.  There is no satisfactory evidence as to the persons who were given notice of the meeting or who attended.  Apparently no minutes were kept and Mr Bodney has given no detailed evidence about the decisions that were made.  It must be concluded that Mr Bodney has failed to establish authorisation under either para (a) or para (b) of s 251B.

(iii)       The main claim

42                  No doubt the reason why WAG 149 of 1998 is referred to by the parties as ‘the main claim’ is that it relates to a large area of land and waters north, south, east and west of the city of Perth.  This claim, also, was made by Mr Bodney alone.  Once again the claim is said to be made on behalf of the ‘Native Title Claim Group known as the Ballaruk and Didjarruk People’, but the group is then expressly confined to the biological descendants of Melba Armitage and William Bodney, excluding William Lucas Bodney.  In Schedule R, Mr Bodney stated that ‘(a)s the eldest living descendant of the claim group’ he ‘is authorised to speak for and act on behalf of the Ballaruks and Didjarruk People’.  But there is no evidence of authorisation in either of the ways permitted by s 251B of the new Act.

43                  This claim suffers from the same authorisation problem as Hartfield Park.

Timing of the motions

44                  The State of Western Australia, which is a respondent to all the native title applications, opposes the strike out motions; amongst other reasons because the native title applications are ‘already part heard and the Bodney applicants have given most if not all of their evidence’.  Counsel point out that an earlier strike out motion was filed by South West Aboriginal Land and Sea Council, but was discontinued before hearing.  They say these factors ‘strongly favour the refusal of the strike out application and allowing the matters to be resolved at trial’.

45                  I do not agree.  Section 84C(2) of the new Act says that, upon an application being made under s 84C(1), the ‘Court must, before any further proceedings take place in relation to the main application, consider the application under subsection (1)’.  It may be, as submitted by Mr Wright on behalf of the State, that the requirement to ‘consider’ the application does not include a requirement to determine the application.  It may be open to the Court, having considered the merits of an application, to decide to defer a ruling on it until the trial of the principal application.  Whether or not that is so, it is clearly the policy of the Act that the Court should give immediate attention to a strike out motion.  The reason, no doubt, is that it is undesirable to allow parties to be put to trouble and expense in relation to an application that fails to comply with the fundamental requirements stated in ss 61, 61A and 62.

46                  In the present case, I have reached a clear conclusion that each of the Bodney applications fails to comply with the requirements of the relevant form of s 61.  The situation cannot be cured by further evidence; the deficiencies are contained in the applications themselves.  No good purpose would be served by allowing the Bodney applications to remain on foot.  The only result of so doing would be further to complicate and prolong an already lengthy hearing.

Disposition

47                  I propose to order that each of the Bodney applications be dismissed.  There will be no order for costs, either in relation to the motions or the Bodney applications themselves.

48                  I have previously foreshadowed resumption of the hearing of the substantive native title proceedings on 8 October 2003.  The resumed hearing will now relate only to the Combined Metro applications.

49                  I propose to conduct a directions hearing in Perth at 9.15am on Wednesday, 1 October 2003 at which I will determine the program for the resumed hearing, including the course to be taken in relation to the strike out applications recently filed by Mr Bodney in relation to matters WAG 141 of 1998 and WAG 142 of 1998; and, if the actions proceed, the sites to be inspected and the places at which evidence is to be taken.  If any party wishes to disturb the proposal to resume the hearing on 8 October 2003, application may be made at that time.

Associate:

Dated:              25 August 2003