FEDERAL COURT OF AUSTRALIA

Hazelbane v Northern Territory of Australia [2008] FCA 291

NATIVE TITLE – application to strike out native title claim under s 84C(1) Native Title Act 1993 (Cth) – approach under s 84C(1) compared to general principles of summary dismissal – whether claimants properly authorised under s 251B to bring claim – whether certain members of claimant group authorised by all members of native title claim group to bring claim on required by s 251B – whether claimant group constitute a native title claim group for purposes of s 251B

Native Title Act 1993 (Cth)

Evidence Act 1995 (Cth)

Aboriginal Land Rights Act (1976)

Williams v Grant [2004] FCAFC 178 referred to

Bodney v Bropho (2004) 140 FCR 77 referred to

Dey v Victorian Railways Commissioner (1949) 78 CLR 62 referred to

General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 referred to

Landers v South Australia (2003) 128 FCR 495 discussed/referred to

Quall v Risk [2001] FCA 389 referred to

Dieri People v South Australia (2003) 127 FCR 364 referred to

Quandamooka People (No 1) v State of Queensland [2002] FCA 259 referred to

Moran v Minister of Land and Water Conservation for New South Wales [1999] FCA 1637 referred to

Daniel v Western Australia [2002] FCA 1147 referred to

Risk v Northern Territory [2006] FCA 404 referred to

Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 referred to

Bodney v State of Western Australia [2003] FCA 890 discussed

Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406 referred to

Ward v Western Australia (1998) 159 ALR 483 referred to

Risk v National Native Title Tribunal [2000] FCA 1589 referred to

Tilmouth v Northern Territory [2001] 109 FCR 240 referred to

Energy Australia v Australian Energy [2001] FCA 1049 referred to

Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 referred to

GABRIEL HAZELBANE & ORS ON BEHALF OF THE WARAI AND KUNGARAKANY GROUPS v NORTHERN TERRITORY OF AUSTRALIA & ORS

NTD 6057 OF 2001

THOMAS PETHERICK & ORS ON BEHALF OF THE EMU AND BLUE TONGUE LIZARD CLANS v NORTHERN TERRITORY OF AUSTRALIA & ORS

NTD 21 OF 2005

MANSFIELD J

7 MARCH 2008

ADELAIDE (HEARD IN DARWIN)

NTD 21 of 2005

(Town of Batchelor No 2)

THE COURT ORDERS THAT:

1.                  The application in Matter NTD 21 of 2005 (Town of Batchelor No 2) be struck out.

2.                  Order 1 hereof lie in the Registry and not be sealed for 14 days from the date of this order, and in the event of the Second Applicant exercising the leave granted in Order 3 hereof that it lie in the Registry until further order.

3.                  Leave to the Second Applicant within 14 days from the date of Order 1 hereof to apply by notice of motion for such further orders as the Second Applicant considers appropriate in relation to Matter NTD 21 of 2005 (Town of Batchelor No 2), and that any such motion be returnable for directions on 26 March 2008.

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

NTD 21 OF 2005

(Town of Batchelor No 2)

REASONS FOR JUDGMENT

INTRODUCTION

1                     In application NTD 6057 of 2001 (the Town of Batchelor No 1 application), Gabriel Hazelbane and others on behalf of the Warai and Kungarakany Groups applied for a determination of native title in respect of certain lands and waters within the Town of Batchelor in the Northern Territory.  By notice of 1 July 2002, a group which identifies itself as the Finniss River Brinkin Group (the FRBG) gave notice of intention to be joined as respondents to that application, and were so joined on 16 September 2002.

2                     According to the FRBG notice, the FRBG comprises eight clans which belong to three different language or other groups: 

Descendants of Wagaitj:           Long-neck Turtle Clan; Red Catfish Clan; Kangaroo Clan; Werak Goanna/Pulimi Clan.

Descendants of Larrakia:          Marri Clan (Cycad/Glider Possum/Tree).

Descendants of Kungarakan:     Emu Clan; King Brown Snake Clan and Blue Tongue Lizard/Echidna Clan.

The notice of the FRBG group also indicated that it is comprised of the patrilineal members of the eight clans referred to.

3                     Subsequently, application NTD 21 of 2005 (the Town of Batchelor No 2 application) was brought seeking a determination of native title in respect of the same land and waters as the Town of Batchelor No 1 application.  That application was initially brought on behalf of three clans who are members of the FRBG group.  The named applicants at that time were Thomas Edward Petherick, a member of the Emu Clan, May Stevens, a member of the Blue Tongue Lizard Clan, and Michael Anglitchi, a member of the King Brown Snake Clan. 

4                     Schedule A to that application set out the names of those persons who comprised the native title claim group and on whose behalf the application was made.  Those persons, apparently apical ancestors, were as follows:

Emu Clan:         Mr Captain Wodidj; Mr Tjalma Tiger Jongman; Madntingi; Thullumbun and Chugulla.

Blue Tongue Lizard Clan:          Mr George Stevens.

King Brown Snake Clan:          Luccen and Augustine Purtamani.

5                     By leave given on 27 March 2006, the Town of Batchelor No 2 application was amended the following day.  The named applicants in the amended Town of Batchelor No 2 application are Thomas Edward Petherick, May Stevens and Captain Wodidj (the second applicants), who are said to have been authorised by the Emu and Blue Tongue Lizard Kungarakan group.  The native title claim group is said to comprise of members of the Emu and Blue Tongue Lizard native title claim groups, which “constitute local descent groups affiliated with the Kungarakany language area”.  The membership of that native title claim group is described as those persons who are descended from the following ancestors:

Emu Clan:         Captain Wodidj; Tjalma Tiger Jongman (dc); Madntingi (dc); Thullumbun (dc) and Chugulla (dc).

Blue Tongue Lizard Clan:          George Birid Stevens (dc) and Jimmy Jeribid (dc).

6                     Consequently, the amendment to the Town of Batchelor No 2 application removed the King Brown Snake Clan as one of the groups or clans comprising the native title claim group.  Michael Anglitchi was no longer an authorised applicant.  And Captain Wodidj had been added as one of the authorised applicants.  Both Thomas Edward Petherick and Captain Wodidj are said to be members of the Emu Clan and May Stevens a member of the Blue Tongue Lizard Clan.  In addition, Jimmy Jeribid has been included as an apical ancestor of the Blue Tongue Lizard Clan.

7                     On 1 November 2005, the Court ordered that the Town of Batchelor No 1 application and the Town of Batchelor No 2 application be heard together.  

THE PRESENT ISSUE

8                     By motion of the Town of Batchelor No 1 applicants (the first applicants), they seek orders pursuant to s 84C(1) of the Native Title Act 1993 (Cth) (the Act) that the Town of Batchelor No 2 application, as now amended, be struck out.  Section 84C(1) provides that if an application under the Act for the determination of native title does not comply with s 61, s 61A or s 62, a party to the proceedings may at any time apply to the Court to strike it out.  The applicants in the Town of Batchelor No 1 application are parties to the Town of Batchelor No 2 application, by reason of s 84(3) of the Act, as they claim to hold native title in relation to the land or waters in the same claim area as that covered by the Town of Batchelor No 2 application and having followed the procedure prescribed by s 84.  Alternatively, the first applicants invoke the Court’s powers under O 2 r 2(1)(a) and (c) of the Federal Court Rules.

9                     They contend that the Town of Batchelor No 2 application as amended should be struck out because it does not comply with s 61, dealing with the basic requirements for applications, or s 62(1)(a) which requires a claimant application to be accompanied by an affidavit sworn by the applicants:  see s 62(2)(c) of the Act.  Section 61(1) provides that the persons who bring a claimant application must be persons who are 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 claim.  Section 61(4) requires a claimant application so authorised to name the persons, or otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons in the native title claim group.  The process or means of authorisation is prescribed in s 251B of the Act, either, by subs (a) authorisation by a traditional decision-making process, or, as contemplated by subs (b), where there is no such process authorisation in accordance with the decision-making process agreed to and adopted by the persons in the native title claim group.

10                  The first applicants contend that the Town of Batchelor No 2 application does not comply with s 61 in that respect, nor does it comply with s 62. 

THE APPROACH TO THE APPLICATION

11                  It is common ground that any order on the motion would be an interlocutory order, so that ordinary principles governing summary dismissal of a proceeding should apply.  That is, an application under s 84C should be approached with caution and should be allowed only where a clear case for summary dismissal has been made:  Williams v Grant [2004] FCAFC 178 at [48]-[49] per Lander J (with whom North and Dowsett JJ agreed); Bodney v Bropho (2004) 140 FCR 77 at 89 [51] per Stone J.  The general approach, therefore, is consistent with the approach of Courts in other applications to summarily dismiss proceedings, namely that they should be dismissed only in very clear cases:  Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129.  As in Williams v Grant at [84] and [87] per Lander J, the first applicants seeking to strike out the Town of Batchelor No 2 application under s 84C have the onus and responsibility of establishing that the second applicants were not authorised by the native title claim group to bring that claim, and so to make out a very clear case of want of authorisation, or a clear failure to comply with one or other of the requirements of ss 61, 61A or 62.

12                  In Landers v South Australia (2003) 128 FCR 495 at 497 [7] I said:

… The power summarily to dismiss an application should be exercised only where the claim as expressed is untenable, and upon the version of the evidence favourable to the applicant.  The Court should not, upon such an application, generally undertake any weighing of conflicting evidence or of the inferences which might be drawn from such evidence:  Webster v Lampard (1993) 177 CLR 598 at 602-603.

13                  As has been often observed, proper authorisation is fundamental to the legitimacy of native title applications (see e.g. Quall v Risk [2001] FCA 378 at [67]; Dieri People v South Australia (2003) 127 FCR 364 at [55]; Quandamooka People (No 1) v State of Queensland [2002] FCA 259 at [25]; Moran v Minister of Land and Water Conservation for New South Wales [1999] FCA 1637 at [48]; Daniel v Western Australia [2002] FCA 1147 at [11].

14                  It is, therefore, hard to resist the temptation of determining such a fundamental issue as authorisation before a full trial of the native title determination application with the very substantial resources which are then involved.  To do so has the attraction of expedition and economy.  Certain recent decisions of the Court have illustrated that proper authorisation is a matter which should not be overlooked, and the possibility of a challenge, at an early point in the proceeding:  see e.g. Risk v Northern Territory [2006] FCA 404; Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1.  The mere complexity of an issue, or the fact that extensive argument may be necessary to demonstrate that the claim is untenable, is not a reason not to dispose of an application summarily:  General Steel Industries Inc v Commissioner for Railways (NSW) 112 CLR at 130 per Barwick CJ.

15                  Section 84C(2) requires the Court to consider an application under s 84C(1) before any further proceedings take place in relation to the main application.  But that does not require the Court to hear and determine the question as to whether the application has, in fact, been authorised as required by s 251B in all cases.  It is only where the application is obviously without merit, that is, where there is no realistic prospect on the material before the Court of the authorisation being shown to have existed at the time it was purportedly granted, that an order will be made summarily dismissing or striking out the main application under s 84C.  Sometimes an applicant faced with an application under s 84C may seek to amend the application to cure an identified deficiency (as discussed by Lander J in Williams v Grant at [57]).  Where the application is not clearly without merit, so that it is not dismissed summarily or struck out, the Court may consider directing that an application under s 84C be heard and determined at the same time as the main application.  That is a course of action which Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [45] suggested.  The Court may also consider directing that the question of authorisation be heard and determined as a separate question, and be heard and determined prior to the hearing of the main application, under O 29 of the Federal Court Rules.  That is a matter for each particular case and its particular circumstances.  Whether such an order were appropriate would depend upon the extent to which there would be an overlap in the evidence likely to be called relating to authorisation and on the main application and a range of factors.  The apparent attraction of expedition and economy may be misleading.  Very often, the proposed evidence of authorisation is to be given by persons who also will give “connection” evidence and evidence of traditional laws and customs.  There  are often sound reasons in such circumstances why the separate trial of issues should not be ordered:  Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406; Energy Australia v Australian Energy Ltd [2001] FCA 1049 at [8] per Stone J.  There are also countervailing considerations of potential delay through splitting of issues and the separate processes which follow that course:  Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130.  So, not uncommonly, as occurred in both Risk and Harrington-Smith (referred to above) the issue of authorisation was heard and determined as part of the principal hearing of the main application.

16                  Consequently, despite the obvious advantages to the first applicants of having the issue of the authorisation of the Town of Batchelor No 2 application generally heard and determined on its strike out motion, it can only succeed if upon the whole of the evidence on the motion it satisfies the Court that there is no real prospect of the second applicants in the Town of Batchelor No 2 application establishing that they are authorised in terms of s 61(1) of the Act and in accordance with s 251B of the Act to have brought the Town of Batchelor No 2 application, and that they have complied with s 62.

THE CONTENTIONS

17                  The first applicants have made three principal contentions in relation to their strike-out motion.  They are:

(1)               that Thomas Petherick, May Stevens and Captain Wodidj have not been authorised by all members of the native title claim group as described to bring the Town of Batchelor No 2 application as amended;

(2)               that the members of the Emu Clan and the Blue Tongue Lizard Clan are not a native title claim group, so that those persons are not the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claim, but are only part of the claim group; and

(3)               that the second applicants have not complied with the requirements to provide affidavits and other information under ss 61 and 62 of the Act, in particular that, contrary to s 62(1)(a) of the Act, the Town of Batchelor No 2 application as amended was not accompanied by affidavits of the second named applicants deposing to the matters referred to in s 62(1)(a)(i)-(v). 

18                  The first of those contentions is then given a series of sub-contentions which I identify, as it is helpful when considering the material before the Court on the motion.  The sub-contentions are:

(a)                the Town of Batchelor No 2 applicants have not been authorised by all members of the native title claim group as described;

(b)               that there has been a disavowal of rights and interests by or on behalf of a large part of the native title claim group as described;

(c)                that the material simply does not indicate that the applicants, or any particular person, was authorised to bring the application on behalf of the identified native title claim group; and

(d)               that the applicants had been authorised to bring the claim by persons outside the native title claim group as described, at least in part;

(e)                that the alleged decision-making process by which the authorisation claim was given was not an authorisation process within the meaning of s 251B of the Act; and

(f)                 that the evidence about the “special purpose meeting for authorisation” held at Palmerston on 23 August 2005 by members of the Blue Tongue Lizard Clan is conflicting, and is therefore evidence upon which no weight should be attached.

THE EVIDENCE

19                  There were a number of affidavits relied upon by the first applicants in support of the strike-out application.  The second applicants relied upon the material in the main application, together with two further affidavits of Thomas Edward Petherick sworn on 5 December 2006 and on 23 April 2007, the latter of which contained extensive annexures.

20                  There was an objection to my receiving in evidence a small part of Thomas Petherick’s affidavit of 23 April 2007 on the grounds that it was unsupported hearsay.  The particular passage objected to quotes entries from a diary of his father, Ray Petherick about an alleged meeting on the morning of 10 April 2006 at Palampa, some 200 km south-west of Batchelor.  The meeting allegedly involved Captain Wodidj and other members of his family in which it was agreed that the Petherick family would be responsible for the Batchelor area of the Emu Dreaming, together with the Litchfield National Park and Welltree areas, and that Captain Wodidj and his family would be responsible for the Emu Dreaming when it came south-west into Palampa.  At that time, apparently, Captain Wodidj signed a document apparently constituting his affidavit filed in support of the Town of Batchelor No 2 application as amended.

21                  The objection is not simply that hearsay evidence cannot be received on an application such as the present.  As I have said, it is common ground that the application is an interlocutory one in respect of which hearsay evidence may be admitted by reason of s 75 of the Evidence Act 1995 (Cth):  see e.g. Bodney v Bropho (2004) 140 FCR 77 at 92 [64] per Stone J.  Section 75 requires evidence of the source of the hearsay material within the affidavit.  It is contended that such evidence has not been given, so that that particular part of Mr Petherick’s affidavit of 23 April 2007 should not be received, or alternatively that it should not be received by reason of s 135 of the Evidence Act.  There is no explanation as to why Ray Petherick should not have given evidence of those facts directly.  There is nothing to verify on his part the reliability of his diary, although it has considerable detail within it.  However, I think it identifies the source of the information, namely Ray Petherick and there is some independent confirmation of the events to which it refers by Captain Wodidj having signed the affidavit on 10 April 2006 which was filed in support of the Town of Batchelor No 2 application as amended.  It is a different question as to the weight to be given to that affidavit of Captain Wodidj generally upon the whole of the evidence.

22                  I propose to receive that part of the affidavit of Mr Petherick, but I indicate that I do not think it carries much weight.  There is direct evidence from Captain Wodidj as to the fact that he did not intend to authorise the bringing of the Town of Batchelor No 2 application as amended as an authorised applicant or on his behalf as an asserted member of that native title claim group, or to authorise the claim to be brought as a senior member of the Emu Clan.  He plainly disavows any interest as a member of any native title claim group which may have native title rights and interests in respect of the Batchelor area.  Nevertheless, there is some evidence of attempts made by Thomas Petherick through Ray Petherick to secure Captain Wodidj’s agreement to being a nominated applicant for the claim group, and to indicate his preparedness to be a member of the claim group.

23                  For reasons which appear below, nothing turns upon the receipt of that evidence in all the circumstances.

24                  What is apparent is that the FRBG comprises at least the eight clan groups referred to in [2] above, and for many years has been seeking to have its interest in the claim area of the Town of Batchelor No 2 application, in Litchfield National Park, and in surrounding areas recognised firstly by the Aboriginal Land Rights Commissioner under the Aboriginal Land Rights (Northern Territory) Act (1976) (Cth) and, secondly, in various claims made under the Act in relation to areas in which the FRBG claims to have an interest in a number of areas, including the Bachelor area.  Both the Aboriginal Land Rights Commissioner in relation to the Finniss River Land Claim 1980 and the Northern Land Council (the NLC) as the representative body responsible for the area in which the relevant claims under the Act have been made, have declined to recognise that interest.  The NLC has also declined to provide financial or other support to the FRBG to pursue its claims, variously to pursue its claimed interests in the Batchelor and other areas.  Consequently, but not surprisingly, the Town of Batchelor No 2 application and other documents prepared by and on behalf of the FRBG have some unsatisfactory aspects.  The process of making such an application is complex and the information required is detailed.  It is not surprising that the FRBG or more specifically the Petherick family, who appear to have been carrying the primary responsibility for furthering the interests of the FRBG, have not completed that process in a way which a more formal analysis and professional care might have done.

25                  However, the Court’s function is to determine the motion to strike out the Town of Batchelor No 2 application having regard to the principles applicable to determining an application under s 84C, and on material before it.

26                  The nominated apical ancestors of the Emu Clan in the Town of Batchelor No 2 application as amended are set out in [4] and [5] above.  There is clear evidence from Captain Wodidj and from several of his brothers that Captain Wodidj does not claim to be a member of the native title claim group or of any native title claim group which has native title rights and interests in the Town of Batchelor area.  He and his brothers all say that they are elders of the Rak Palampa Clan or estate group, an estate area some 200 km south-west of Batchelor.  That is a place where there is an Emu Dreaming.  It says that membership of the Rak Palampa Clan is determined on a patrilineal descent rule, and that they each have membership of that clan with its Emu Dreaming by descent from their father Miren, also known as Chugulla.  That is another name which appears as an apical ancestor of the Emu Clan in the Town of Batchelor No 2 application.  Each of those men confirms that their father was a member of the Rak Palampa estate group who made claim to, and who had no, native title rights and interests in respect of the Batchelor claim area.  The second named person, Mr Tjalma Tiger Jongman, is also addressed in the evidence through Ambrose Jongman, who says that that man was his grandfather, and that he and his father and his grandfather were members of the Ma Muthirr estate group in Maringar country, also well remote from the Batchelor claim area.  He says that that estate group also has patrilineal descent rules, and shares the Emu Dreaming which moves into the Palampa area.  Both the Wodidj deponents and Mr Jongman expressly disclaim any interest to native title rights and interests in the Batchelor claim area, and say that the Emu Dreaming which they share must be different from any Emu Dreaming in the Batchelor claim area (if there is one).  Each says also that the decision-making processes of those two clans was a traditional one involving the senior elders of those clans.

27                  The only direct evidence of knowledge of the third apical ancestor identified, Madntingi, is that he was otherwise known as Jack Mumbe, and that he was also a member of the Ma Muthirr estate group in Maringa country, remote from the Batchelor claim area.  The fourth named apical ancestor of the Emu clan is Thullumbun.  The evidence is that he is a member of the Rak Peppimenarti estate group, again remote from the Batchelor claim area, and not in respect of an area with an Emu Dreaming. 

28                  Mr Petherick’s affidavit of 23 April 2007 does not directly dispute much of that material.  He acknowledges that it was necessary to get authorisation from two sub-groups of Emu Clan members that were living at Palampa and Wadeye (Maringar country) and who had very little association with the Woolaning area (nearby to the Batchelor area) over many years.  It was for that reason that he sought the approval of Captain Wodidj, and Ambrose Jongman for the purposes of the claim.

29                  In my view, that is sufficient to determine the application adversely to the Town of Batchelor No 2 applicants.

30                  Section 61(1) of the Act requires that each of the named and authorised applicants to the Town of Batchelor No 2 application be included in the native title claim group.  Clearly, Captain Wodidj is not in the identified native title claim group.  He says so, and Mr Petherick in effect acknowledges that.

31                  The thrust of the material presented through Mr Petherick is that the FRBG is a separate claim group, made up of a number of clans, who claim native title rights and interests within the Batchelor area and surrounding areas.  The FRBG does not claim native title rights and interests in the Palampa area in which Captain Wodidj says that his native title rights and interests exist, and which Mr Petherick acknowledges is the area in which ultimately his native title rights and interests exist, even if they are tied together by the Emu Dreaming.  On the material, there is simply a contest as to whether the Emu Dreaming of Palampa is the same as such Emu Dreaming as exists in the Batchelor claim area.  But I do not think that matters.  Even if the Emu Dreaming is the same dreaming, it is not really disputed that the native title claim group for the Town of Batchelor No 2 claim, whether it comprises all of the FRBG clans or only the two clans (namely the Emu Clan and the Blue Tongue Lizard Clan) does not claim native title rights and interests extending beyond the Batchelor area as remotely as Palampa country or Maringar country where the Ma Muthirr estate group exists.

32                  In those circumstances, I do not need to determine whether the evidence adduced on behalf of the second applicants is sufficient to overcome the quite strong evidence to which I have referred indicating that the apical ancestors identified in the Town of Batchelor No 2 application for the Emu Clan are not in fact apical ancestors for a clan within the native title claim group which claims native title rights and interests in respect of the Batchelor area.  The evidence to the contrary seems to be quite strong.

33                  Nor do I need to determine whether the evidence adduced by the second applicants, but in particular through Mr Petherick, is sufficient to demonstrate, in the face of quite strong evidence to the contrary, that the relevant decision-making processes to which he refers are adequate to establish authorisation in accordance with s 251B of the Act.  There is, as I have noted, significant evidence that at least in respect of three of the named apical ancestors of the Emu Clan the relevant decision-making processes requires decisions in relation to land to be made in a traditional way by the men and women whose fathers and father’s fathers come from the relevant country.  There is also strong evidence that neither the Wodidj family or the Jongman family would expect to participate in any authorisation meeting in accordance with their traditional laws and customs involving the making of a native title determination application in respect of the Batchelor claim area, and did not do so.  Such authorisation as there was, in any event, would not appear to satisfy a process of traditional decision-making to which that evidence refers.  I appreciate that there is some evidence from Mr Petherick to the contrary.  As I have said, I do not need to decide whether it is of sufficient strength to resist the strike-out motion, because there is in my view a clear answer in support of the application being struck out.

34                  There is a second reason why, in my view, the strike out motion should succeed.  There is no evidence that Thomas Petherick himself was authorised either by a traditional meeting of the members of the identified native title claim group (either the Emu Clan or the Blue Tongue Lizard Clan together or separately) to bring the application on their behalf.  He certainly took an active role in assembling information and encouraging members of the FRBG to support the bringing of an application.  But there is no evidence to suggest that he was authorised by all members of the native title claim group as he has described it, or as it is described in the Town of Bachelor No 2 application as one of the persons authorised to bring the application and to deal with matters in relation to it.  At best, he is described in both attachments R2 and R3 to the Town of Batchelor No 2 application, as a spokesperson interpreter in the courts representing the FRBG itself, and not the two particular clans.  Those documents have two other headings:  Authorised Persons, and Clan Group Representative Spokespersons.  He does not appear in those sections of those documents.  The extensive process of consultation to which he refers does not indicate that at any particular meeting or meetings he was expressly authorised by the identified native title claim group to bring the Town of Bachelor No 2 application on its behalf or to deal with matters in relation to it.  I do not think Attachment R4 to the Town of Batchelor No 2 application as amended demonstrates more than a thorough and conscientious attempt by Mr Petherick to consult as widely as he could, and as he did, with many persons who may have had an interest in the Batchelor claim area, but it does not demonstrate any traditional form of decision-making by the native title claim group itself in terms of s 61(1) of the Act in relation to him.

35                  There is a third reason why, in my view, the necessary authorisation is shown not to have been given.  The native title claim group as presently expressed is confined to members of the Emu Clan and the Blue Tongue Lizard Clan.  However, the material presented by Mr Petherick indicates that his inquiries have been on behalf of the FRBG generally.  In various parts of the extensive material to which he refers, he identifies in a collective way the various clans comprising the FRBG as the group which claims native title rights and interests in respect of the Batchelor area.  Those clans extend beyond the Emu Clan and the Blue Tongue Lizard Clan.  The number of the persons to whom he has spoken, as he himself records, are persons who are not members of the Emu Clan or the Blue Tongue Lizard Clan but are members of other clans such as the Cycad/Glider Possum Clan and the Werak Goanna/Pulini Clan and the King Brown Snake Clan.  He asserts variously that every member of the FRBG claims to have native title rights and interests in the Batchelor claim area, with particular responsibility for particular sites.

36                  In my view, on his own material, those two clans are a mere subset of the FRBG.  It is therefore inappropriate that they should constitute the native title claim group:  see e.g. Ward v Western Australia (1998) 159 ALR 483 at 581; Risk v National Native Title Tribunal [2000] FCA 1589 at [60]; Tilmouth v Northern Territory [2001] 109 FCR 240 at 241-242; Dieri People v South Australia (2003) 127 FCR 364 at [55]; Landers v South Australia [2003] 128 FCR 495 at 504; and Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 at [1209]-[1217]. 

37                  It is not necessary to address the further contentions on behalf of the first applicants.

38                  In my judgment, there are clear reasons why the Town of Batchelor No 2 application, as presently expressed is not capable of being maintained in its present form.  I propose to strike it out.  I will give the second applicants 14 days within which to apply by motion for orders which may save the application:  see the discussion in [14] above.  The strike out order is therefore not to be sealed for that time.  I do not suggest that the second applicant should make any such application, but I think it appropriate to give them the opportunity to do so.

Associate:

Dated:         6 March 2008