FEDERAL COURT OF AUSTRALIA

Lapthorne v Indigenous Land Corporation [2008] FCA 682

ANDREW LAPTHORNE v INDIGENOUS LAND CORPORATION

WAD 33 of 2008

SIOPIS J

7 MAY 2008

PERTH

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant is to pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                          There is on foot in this Court a native title claim which is brought on behalf of the Thudgari people.  That claim is WAD 6212 of 1998.  The applicant, Mr Lapthorne, is a member of that Thudgari people claim group but he is not one of the persons named as the applicant in that claim.  The land over which that claim is made includes land known as Edmund Station.

2                          The respondent is a statutory corporation which is established by the Commonwealth to assist Aboriginal and Torres Strait Islander peoples to acquire and manage land to provide economic, environmental, social or cultural benefits.

3                          Under the Aboriginal and Torres Strait Islander Act 2005 (Cth) (the ATSI Act), the respondent may acquire by agreement interests in land for the purpose of granting interests in that land to an Aboriginal or Torres Strait Island corporation.

4                          On 24 February 1999, the respondent purchased the leasehold of the property known as Edmund Station for the cultural needs of the Gnulli people.

5                          In June 2006, the respondent’s board determined that neither the Gnulli people nor any other Aboriginal corporation had demonstrated an ability to manage the property and, accordingly, the determination was made to dispose of the leasehold in the Edmund Station property pursuant to s 191J(2) of the ATSI Act.

6                          On 27 November 2007, the respondent entered into a contract for the sale of the pastoral lease over Edmund Station.

7                          On 19 February 2008, the applicant, Mr Lapthorne, who is unrepresented, commenced this proceeding by filing an application.  The substantive claim made in the application is that “[t]he Thudgari Native Title Group be granted Native Title rights over the area of land which part of the land is known as Edmund Station”.

8                          The part of the application form which provides for the applicant to include a claim for interlocutory relief was left blank.  In the accompanying affidavit sworn 19 February 2008, Mr Lapthorne deposed that:

The Thudgari Native Title Group are pursuing the grant of Native Title rights over the area of land which part of the land is known as Edmund Station.

9                          Mr Lapthorne deposed that he was an Elder of the Thudgari people and a member of the Thudgari Native Title claim group.  He said that:

The land on which Edmund Station is situated is of great cultural significance to the Thudgari peoples and me.  That land also holds great emotional and spiritual value to the Thudgari peoples and me.  It is the duty of the Thudgari peoples and me to maintain the culture and spiritual to [sic] connection to the land.

10                        Mr Lapthorne went on to depose that he had heard that the respondent intended to dispose of Edmund Station and that in December 2007 he lodged a caveat on the title of Edmund Station in accordance with the consent of the Thudgari Elders and a number of people who had signed a document attached to his affidavit.  Mr Lapthorne went on to say that:

If the sale of Edmund Station is allowed to proceed, the Thudgari peoples will loose [sic] the chance to have the land granted to them and the land will be lost to us.

11                        On 2 April 2008, the respondent filed a notice of motion in which it seeks that summary judgment be given to the respondent pursuant to s 31A of the Federal Court Act 1976 (Cth), alternatively, that the proceeding be dismissed under O 20 r 5 of the Federal Court Rules.  It is this motion which I have heard today.

12                        In support of its application, the respondent relied upon an affidavit of Ms Rebecca Margot Butler sworn 2 April 2008.  Ms Butler deposed that in December 2007, Mr Lapthorne sought to prevent the sale of the pastoral lease of Edmund Station by registering a caveat over the property.  Ms Butler went on to depose that on 8 January 2008, the respondent registered an application to terminate the caveat.  This resulted in Mr Lapthorne applying to the Supreme Court of Western Australia for the caveat to be extended.  Mr Lapthorne’s application to the Supreme Court was dismissed by an order of the Chief Justice of Western Australia made on 19 February 2008.  Ms Butler deposed that following the dismissal of Mr Lapthorne’s caveat application, the sale of Edmund Station was effected on 13 March 2008.

13                        In my view, Mr Lapthorne’s application should be dismissed.  Proper authorisation is an essential element for the commencement of a claim for native title.  Mr Lapthorne has not satisfied the requirements of s 61(1) of the Native Title Act 1993 (Cth) (the Act) by producing evidence required by that section read with s 251B, to show that he has been authorised by the Thudgari people to make this claim.  Nor has he produced the necessary evidence to show that he is entitled under s 66B of the Act to replace the persons named as the applicant in the native title claim WAD 6212 of 1998 which has been brought by the Thudgari people in respect of the same land.

14                        Mr Lapthorne sought to rely upon a document which was Annexure C to his affidavit to comprise the necessary evidence of authorisation to bring this claim for native title on behalf of the Thudgari people.  However, that document does not deal with the matters in s 251B of the Act and goes no further than to authorise Mr Lapthorne to act on behalf of what he described as the “Thudgarri [sic] Elders and Work Party people” to lodge a caveat in respect of Edmund Station.  That document does not comprise a sufficient authorisation such as to constitute compliance with either of s 61(1) or s 66B of the Act.

15                        Failure to provide evidence of authorisation is fatal to the bringing of a native title claim.  Accordingly, there is no reasonable prospect of Mr Lapthorne’s claim succeeding and I dismiss the claim on that ground.

16                        Further, insofar as the claim is a claim which was brought for the purposes of seeking to enjoin the sale of the leasehold interest, that is a futile exercise because the property has already been sold and transferred.

17                        For those reasons, I would dismiss the application which has been brought by Mr Lapthorne.  I will hear the parties as to the question of costs.

Associate:

Dated:         15 May 2008