FEDERAL COURT OF AUSTRALIA

 

Christine George & Ors on behalf of the Gurambilbarra People v

State of Queensland [2008] FCA 1518

NATIVE TITLE - notice on Court's own motion to show cause why application should not be dismissed pursuant to s 190F(6) of the Native Title Act 1993 (Cth) - construction of s 190F(6) - relevance of general law with respect to summary dismissal - where general law held not relevant - where application has not been amended since consideration by the Registrar - where application not likely to be amended in a way that would lead to a different outcome once considered by the Registrar - where no other reason why the application should not be dismissed - application dismissed

Federal Court of Australia Act 1976 (Cth) s 31A

Acts Interpretation Act 1901 (Cth) s 15AB

Evidence Act 1995 (Cth)

Native Title Act 1993 (Cth) ss 44A, 61, 62, 63, 64, 66, 81, 84C, 99, 190A, 190B, 190D, 190E, 190F

Native Title Amendment Act 1998 (Cth)

Native Title Amendment Act 2007 (Cth)

Native Title Amendment (Technical Amendments) Act 2007 (Cth) s 3

Trade Practices Act 1974 (Cth) s 45D

Federal Court Rules O 20 r 4

Bodney v Brophy [2004] FCAFC 226 cited

Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 cited

Dey v Victorian Railways Commissioner (1949) 78 CLR 62 considered

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 considered

Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 considered

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 cited

Northern Territory v Doepel (2003) 133 FCR 112 considered

The Wahlabul People v Registrar National Native Title Tribunal [2000] FCA 1330 distinguished

Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees’ Union (1979) 42 FLR 331 considered

Western Australia v Strickland (2000) 99 FCR 33 considered

Williams v Grant [2004] FCAFC 178 cited

CHRISTINE GEORGE, ANGELINA AKEE, ALICE DOWDEN, PETRINA PAM HEGARTY, BEVERLEY UNDERWOOD AND VIRGINIA WYLES ON BEHALF OF THE GURAMBILBARRA PEOPLE v STATE OF QUEENSLAND

QUD97 of 2005

 

LOGAN J

10 OCTOBER 2008

BRISBANE (HEARD IN TOWNSVILLE)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD97 of 2005

 

BETWEEN:	CHRISTINE GEORGE, ANGELINA AKEE, ALICE DOWDEN, PETRINA PAM HEGARTY, BEVERLEY UNDERWOOD AND VIRGINIA WYLES ON BEHALF OF THE GURAMBILBARRA PEOPLE Applicant
AND:	STATE OF QUEENSLAND Respondent

 

JUDGE:	LOGAN J
DATE OF ORDER:	10 OCTOBER 2008
WHERE MADE:	BRISBANE (HEARD IN TOWNSVILLE)

 

THE COURT ORDERS THAT:

 

1.                  The application is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD97 of 2005

BETWEEN:	CHRISTINE GEORGE, ANGELINA AKEE, ALICE DOWDEN, PETRINA PAM HEGARTY, BEVERLEY UNDERWOOD AND VIRGINIA WYLES ON BEHALF OF THE GURAMBILBARRA PEOPLE   Applicant
AND:	STATE OF QUEENSLAND Respondent

 

JUDGE:	LOGAN J
DATE:	10 OCTOBER 2008
PLACE:	BRISBANE (HEARD IN TOWNSVILLE)

REASONS FOR JUDGMENT

How the “show cause” proceeding arose

1                     On 4 April 2008, for reasons which were appended to her decision, a delegate (the Delegate) of the Native Title Registrar (the Registrar) decided, pursuant to s 190A of the Native Title Act 1993 (Cth) (Native Title Act), not to accept for registration an application for a determination of native title made by the above-named persons on behalf of the Gurambilbarra People. A power of delegation is conferred on the Registrar by s 99 of the Native Title Act.

2                     Pursuant to s 190D of the Native Title Act, the Delegate notified the Applicant of her decision and her reasons on 7 April 2008. Thereafter, the Applicant neither applied to the National Native Title Tribunal (NNTT) pursuant to s 190E(1) of the Native Title Act for the reconsideration of the Delegate’s decision nor applied to this Court pursuant to s 190F(1) of the Native Title Act for the review of that decision.

3                     Against this background, at a directions hearing held before Dowsett J in Townsville on 26 May 2008, the Court of its own motion called on the Applicant to show cause at the next directions hearing why the application should not be dismissed pursuant to s 190F(6) of the Native Title Act. That directions hearing was held in Townsville on 3 October 2008. Prior to that hearing and in accordance with directions made for that purpose, the Applicant’s solicitor, Mr Michael Owens, made submissions in writing as to why the application ought not to be dismissed. The Crown Solicitor also made written submissions on behalf of the State. The State did not itself apply for the dismissal of the application but did submit that, in the circumstances obtaining, it was open for the Court to dismiss the application pursuant to s 190F(6) of the Native Title Act.

4                     On 3 October 2008 each party appeared in response to the Court’s notice to show cause and adopted their respective written submissions. In deference to the submissions made and in light of the apparent present dearth of authority in respect of s 190F(6), I reserved judgement on the question of whether the application ought to be dismissed.

5                     Subsection 190F(6) must be read in conjunction with s 190F(5) of the Native Title Act. Those subsections provide:

Where no application for review, or Court does not make order under subsection (4) on review 

(5)       Subsection (6) applies in a case where:

(a)        the Registrar does not accept the claim for registration either because, in the opinion of the Registrar or, if the claim is reconsidered under section 190E, of the member of the NNTT reconsidering the claim:

(i)         it does not satisfy all of the conditions in section 190B; or

(ii)        it is not possible to determine whether all of the conditions in section 190B have been satisfied because of a failure to satisfy section 190C; and

(b)        the Court is satisfied that the avenues for:

(i)         the reconsideration under section 190E of the Registrar’s decision; and

(ii)        the review under this section of the Registrar’s decision; and

(iii)       the review of orders made in the determination of an application under this section; and

(iv)       the review of the Registrar’s decision under any other law;

have all been exhausted without the registration of the claim.

(6)       The Court may, either on the application of a party or on its own motion, dismiss the application in which the claim was made (the application in issue) if:

(a)        the Court is satisfied that the application in issue has not been amended since consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and

(b)        in the opinion of the Court, there is no other reason why the application in issue should not be dismissed. (Emphasis in original)

6                     The State’s submission that, in the circumstances obtaining in this case, it was open for the Court to dismiss the application pursuant to s 190F(6) of the Native Title Act was not misplaced. Having regard to the criteria specified in s 190F(5), s 190F(6) is engaged in the circumstances of this case for the following reasons:

(a)                in the opinion of the Delegate the claim for registration did not satisfy all of the conditions in s 190B (q.v. below), thereby meeting the criterion specified in s 190F(5)(a)(i) ; and

(b)               on the evidence before the Court I am satisfied that the avenues for the reconsideration under s 190E of the Delegate’s decision or for the review of the Delegate’s decision either under s 190F or otherwise have been exhausted (and exhausted in circumstances where there has been no occasion for the making of orders in the determination in respect of an application under s 190F, because no such application has been made and hence no occasion for the review of such orders has arisen), thereby satisfying the criterion specified in 190F(5)(b).

7                     The Applicant did not contest that these conditions precedent to the engagement of s 190F(6) of the Native Title Act were present.

8                     It will be necessary later in these reasons to delve in greater detail into the history of the native title determination application and why the Delegate decided not to accept the claim for registration. Before so doing it is desirable to chart out further material provisions of the Native Title Act.

Registration of a claim and its consequences

9                     A native title determination application is made to this Court under s 61 of the Native Title Act. Section 63 of that Act requires this Court’s registrar to give the Registrar a copy of the application, accompanying affidavits and accompanying prescribed documents as soon as practicable after the application is filed. Having thus been given these materials, s 190A of the Native Title Act obliges the Registrar to consider the claim made in the application in accordance with that section. The end to which the Registrar considers the claim is to decide whether the claim is one which either must or must not be accepted for registration in the Register of Native Title Claims (the Register).

10                  An entry of a claim on the Register does not, it should be emphasised, determine native title. Registration is an administrative procedure. The determination of native title is an exercise of judicial power. This Court has jurisdiction to determine applications filed under s 61 and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court: s 81 Native Title Act.

11                  The entry of a claim on the Register is nonetheless a significant step. A study of the Native Title Act discloses that registration is a condition precedent to the enjoyment of a wide variety of rights by the applicant pending the determination of the claimed native title. These rights include entitlements to notification, to consultation, to hearings and, in respect of future acts, to negotiate. A summary of the principal rights is to be found in Professor Bartlett’s work, Native Title in Australia, 2nd Ed, para 11.51 at pp 186-187:

·                    ‘Right to negotiate’ process, including notice, negotiation in good faith and arbitral body determination of whether an act might be done (ss 29, 31, 38).  Rights under the negotiation process are attached as long as registration is effected within four months of the s 29 notice (s 30(1)(a));

·                    Notification of proposed determination of an ‘approved opal or gem mining area’ (s 26);

·                    Notice, hearing and consultation with respect to ‘approved exploration etc acts’ (s 26A) and ‘approved gold or tin mining acts’ (s 26B);

·                    Notice, objection, consultation and hearing with respect to acts in alternative provision areas (s 43A);

·                    Notice and opportunity to comment on the grant of timber and non-mining resource rights on non-exclusive pastoral and agricultural leases (s 24GE), and on acts respecting water, living aquatic resources or airspace (s 24HA);

·                    Procedural rights with respect to acts regarding public infrastructure (s 24KA) and the offshore (s 24NA);

·                    Non-discriminatory procedural rights with respect to compulsory acquisition for government (s 24MD (6A));

·                    Notice, objection, hearing and consultation with respect to compulsory acquisition for a third party (s 24MD(6B), (6C)) and the lengthening or making perpetual of a non-exclusive pastoral or agricultural lease (s 24JB(7)).

…

Registration also prevents the accrual of ‘section 24FA protection’ entailing validation of future acts pursuant to a non-claimant application:  ss 24FB, 24FC.

All registered native title claimants must be parties if indigenous land use area agreements are negotiated:  s 24CD.

12                  Registration also confers the benefit of a statutory right of access on a non-exclusive pastoral or agricultural lease: s 44A Native Title Act.

13                  The effect of s 66(6)(a) of the Native Title Act is that it is not until the Registrar has decided under s 190A to accept a claim for registration that the Registrar is obliged under s 66(3) to take the following notification measures:

(a)                give notice containing details of the application to the following persons or bodies (other than the applicant in relation to the application):

(i)                  any registered native title claimant in relation to any of the area covered by the application; and

(ii)                any registered native title body corporate in relation to any of the area covered by the application; and

(iii)               any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and

(iv)              subject to s 66(5), any person who when the notice is given, holds a proprietary interest, in relation to any of the area covered by the application, that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth, a State or Territory; and

(v)                the Commonwealth Minister; and

(vi)              any local government body for any of the area covered by the application; and

(vii)             if the Registrar considers it appropriate in relation to the person—any person whose interests may be affected by a determination in relation to the application; and

(b)               give a copy of the notice to the Federal Court; and

(c)                if any of the area covered by the application is within the jurisdictional limits of a State or Territory—give a copy of the notice to the State Minister or Territory Minister for the State or Territory; and

(d)               notify the public in the determined way of the application.

14                  As can be seen, the notification measures are extensive. In themselves they must necessarily entail an administrative burden on the Registrar in undertaking them. It is also not difficult to apprehend that, for recipients of notice of an application, significant devotion of time, expense and perhaps concern in relation to a potential change to the status quo or the affecting of future plans may consequentially be entailed. Notification is, inter alia, a precursor to the ability of those given notice under s 66(3)(a)(i) to (vi) readily to be joined under s 84(3)(a) of the Native Title Act as a party to the application for the determination of native title.

15                  In considering whether the claim is one which either must or must not be accepted for registration the Registrar is not confined just to a consideration of the information to be found in the materials provided by this Court’s registrar pursuant to s 63. Rather, s 190A(3) of the Native Title Act provides:

Information to be considered

(3)       In considering a claim under this section, the Registrar must have regard to:

(a)        information contained in the application and in any other documents provided by the applicant; and

(b)        any information obtained by the Registrar as a result of any searches conducted by the Registrar of registers of interests Commonwealth, a State or a Territory; and

(c)        to the extent that it is reasonably practicable to do so in the circumstances—any information supplied by the Commonwealth, a State or a Territory, that, in the Registrar’s opinion, is relevant to whether any one or more of the conditions set out in section 190B or 190C are satisfied in relation to the claim; and may have regard to such other information as he or she considers appropriate.

16                  There are a number of tests for the registration of a claim. Materially, s 190A(6)(b)(i) of the Native Title Act provides that the Registrar must accept the claim for registration if it satisfies all of the conditions in s 190B. Conversely and materially, s 190A(6B) provides that, if s 190A(6) does not apply, the Registrar must not accept the claim for registration. It was because she had decided in the present case that the claim did not meet all of the conditions in s 190B that the Delegate was obliged not to accept the claim for registration.

17                  So far as material, s 190B of the Native Title Act provides:

190B Registration: conditions about merits of the claim

(1)       This section contains the conditions mentioned in subparagraph 190A(6)(b)(i).

…

Factual basis for claimed native title

(5)       The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:

(a)        that the native title claim group have, and the predecessors of those persons had, an association with the area; and

(b)        that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and

(c)        that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.

Prima facie case

(6)       The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.

Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a “right to negotiate” process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a “right to negotiate” process).

Physical connection

(7)       The Registrar must be satisfied that at least one member of the native title claim group:

(a)        currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or

(b)        previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by:

(i)         the Crown in any capacity; or

(ii)        a statutory authority of the Crown in any capacity; or

(iii)       any holder of a lease over any of the land or waters, or

any person acting on behalf of such a holder of a lease.

18                  The note to s 190B(6) accurately highlights some important consequences that attend the Registrar’s considering that some at least of the native title rights and interests claimed in the application can be established.

Why the claim in the application was not accepted for registration

19                  In its original form the application was filed in the Court on 11 April 2005. A preliminarily assessment of the application in its then form, but at that stage no registration decision, was made by a delegate of the Registrar on 22 June 2005. Amendments were made to the application on 16 December 2005. Thereafter, on 5 April 2006, a delegate of the Registrar considered the application in its then amended form and decided that the claim should not be accepted for registration.

20                  Further amendments to the application were sought to be made in June 2007. The Court did not then grant leave to amend but instead adjourned the notice of motion for leave to amend to 26 November 2007. On that date, leave to amend was granted with the Applicant filing a further amended application for determination of native title pursuant to that leave on 23 January 2008. There are no overlapping applications.

21                  One of the effects of the transitional provisions of the Native Title Amendment Act 2007 (Cth) (the 2007 Amendment Act) was that any native title claimant application made in the period between 30 September 1998 and 15 April 2007 and not on the Register when that Act commenced had to be reconsidered by Registrar.

22                  In its presently amended form the application seeks a determination of a native title claim in respect of, subject to identified excluded areas, a large area covering Townsville and environs running north to Bluewater Creek, west to Harvey’s Range and South to Woodstock. It includes the inter-tidal zone in Cleveland and Halifax Bays.

23                  The Delegate considered that the application did not satisfy any of the conditions in s 190B(5) of the Native Title Act. Her reasons disclose that was because she considered that the factual basis provided in the application was not sufficient to support each or any of the subjects to which paras (a), (b) and (c) of that subsection are directed. She furnished an elaborate explanation for why she had reached that view. This is not a proceeding for the judicial review of the Delegate’s decision on an administrative law error ground, much less is it an application under s 190F(1) for the review of that decision by the Court. Nonetheless, in my opinion, at least in the present case, it is helpful to excerpt what seem to me to be particular key passages from the Delegate’s reasons.

24                  The Delegate commenced her consideration of whether the application’s factual basis supported the assertions set out in subparas 190B(5)(a) to (c) by reminding herself of what Mansfield J had said of s. 190B(5) of the Native Title Act in Northern Territory v Doepel (2003) 133 FCR 112 at 120, [17]:

Section 190B(5) is carefully expressed. It requires the Registrar to consider whether the “factual basis on which it is asserted” that the claimed native title rights and interests exist “is sufficient to support the assertion”. That requires the Registrar to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests. In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions. The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts.

I note that this particular passage from Doepel’s Case was recently expressly approved by the Full Court in Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 (French, Moore and Lindgren JJ) at [82]. The emphasis evident in the passage quoted is that which the Full Court gave to those words in the Gudjala People # 2 Case. For reasons which will become apparent, it will be necessary later to return to the Full Court’s reasons in the Gudjala People # 2 Case.

25                  Having quoted from Doepel’s Case, the Delegate made the following general observation about Schedule F to the application:

At Schedule F of the application, five statements are made and described as ‘examples of facts giving rise to the assertion of native title’.  I consider these statements to be too general and formulaic – they do not provide the level of detail required for me to be satisfied they are a sufficient factual basis to support any of the assertions under s 190B(5).

26                  As to the factual basis for the assertion described in s 190B(5)(a) of the Native Title Act, the Delegate stated, inter alia:

I have turned my mind to the activities that are said to be currently carried out on the application area.  Ms George states in her June 2007 affidavit that the contemporary observance of traditional laws and customs includes the continuation of ritual male initiation ceremonies at Sandlfy Creek (within the application area); the retention and recounting of scared stories about Gabul, sacred places and dreaming tracks; consumption of bush foods and the use of bush medicines; the practice of smoking ceremonies and corroborees; the use of a system of dispute resolution involving elders; the observance of access to country rules and the practice of ‘singing out’ when on country, to name only some.

I am satisfied that this information supports the assertion that these activities amount to the claim group’s current association with the application area.  It is clear to me that the claim group as a whole, but not necessarily all the members of the group at all times, have an association with the application area.  I draw support for my view from the supplementary affidavit of Ms George dated 25 June 2007 in particular.

However, I am of the view that there is insufficient information provided for me to be satisfied the predecessors of the whole claim group had an association with the area since sovereignty.  There is simply not enough information, and too much generality in what that has been provided, for me to be satisfied that there is a sufficient factual basis to support the assertion made under s 190B(5)(a).  The supplementary affidavit of Ms George dated 25 June 2007 provides no further detail with respect to apical ancestors Peter Hegarty and Emily Underwood and their association with the application area – I know no more than the previous delegate who tested the application about the events that occurred in the lives of these apical ancestors, despite the supplementary material.

In fact, what is suggested in the material presented is that Emily Underwood and James White were removed from the application area, as the above quotes show.  There is some further indication of this in the anthropological report prepared by Mr Heijm for the purposes of authorisation.  At page 7, he suggests that although not detrimental to the decision-making process for authorisation of the applicant, ‘for the Ada Underwood descendants, and several other subordinate family lines, living a long way away from several generations has physically limited their participation’.  He suggests that there are cultural reasons, unknown to those still living on or near the application area, that proscribe the participation of certain family lines in the native title process.  While I find this latter statement somewhat vague, it does further suggest to me that there has been a removal of descendants from the application area.  Additionally, I have not been provided with any further information about any other predecessor’s association with the area since sovereignty.  As such, I cannot be comfortably satisfied that there is a sufficient factual basis to support the assertion made under s 190B(5)(a).

27                  In respect of the factual basis for the assertion described in s 190B(5)(b) of the Native Title Act, the Delegate’s reasons include the following statement:

[The] material in the application indicates that the society as it exists today is perhaps not the one that existed at sovereignty.  I quote the following from Attachment F:

[t]he ethnographic and historical evidence indicates that the contemporary family descent groups originated in a period of social consolidation immediately following the first European occupation of the claim area.  Various rights and interests that were valorised by traditional law, particularly rights and interests in country, came to be vested in the family groups along with other central values, such as the authority and status of elders and consensual decision making.

Otherwise, I am provided with scarce detail as to the normative society that existed at sovereignty.  I have been provided with the following at supplementary Attachment F:

… the contemporary native title claim group are descended from the original Gurambilbarra People encountered by early pastoralists, settlers in Townsville and ethnographers.  Amongst the members of the group there is a high degree of mutual recognition as being part of the one Gurambilbarra community.  There is an identifiable Gurambilbarra society.

This does not assist me in understanding whether there are relevant traditional laws and customs that give rise to the claim group’s native title rights and interests, because at sovereignty, a society defined by recognition of those laws and customs existed.

28                  Later, the Delegate stated:

I am not satisfied that there is a sufficient factual basis to support the assertion that there was an identifiable society at sovereignty, the type the Act requires there to have been, as there is insufficient material to this effect.  And there is no substantive information as to why the claim group is made up of the people that it is.  The application suffers from scarce details in this regard and I would be forced to infer too many details to be satisfied of this.

29                  As to the factual basis for the assertion in s 190B(5)(c) of the Native Title Act, the Delegate stated, inter alia:

The reasons for my decision here and at ss 190B(5)(a) and (b) are closely linked.  I am not satisfied that there is a sufficient factual basis to support the assertion that native title rights and interest of the claim group exist because I am not satisfied that there is a sufficient factual basis to support the assertion that the laws and customs acknowledged and observed by that group are ‘traditional’, in the Yorta Yorta sense.  I have formed this view due to the lack of information I have been given about the existence of a society at sovereignty and moreover, the removal of two of the three apical ancestors from the application area.  I draw on the statements I considered under ss 190B(5)(a) and (b) with respect to the removal of the two of the apical ancestors from the application area, namely, Emily Underwood and James White and their respective descendants. Attachment F goes further – it talks of James White and his family being removed to the Palm Island settlement in 1920, with the members of this family returning to live permanently on the claim area in the 1980s.  It also said in Attachment F that ‘once it was possible (from the 1970s onwards) to move back to the Townsville [sic] many descendants of the Disapora community did so’.  The information speaks of James White, but also Ada Underwood’s descendants living ‘a long way away for several generations’ (from page 7 of the report authored by Mr Heijm).

I consider that these 50 to 60 years represent a significant break in the continuity of observance and acknowledgement of the law and customs of the group.  In light of this information, it is not possible that I can be satisfied that there is a sufficient factual basis to support the assertion that the native title claim group has continued to hold its native title rights and interests by acknowledging and observing traditional laws and customs in a substantially uninterrupted way.  And as reasoned above, I am not satisfied that the factual basis provided shows that the laws and customs are ‘traditional’.

The Delegate’s reference to “Yorta Yorta” in the passage quoted is a reference to Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.

30                  As to s 190B(6) of the Native Title Act, the Delegate was not satisfied that there was a sufficient factual basis to support the assertion that the native title rights and interests claimed in the application could be established, prima facie.

31                  In respect of s 190B(7) of the Native Title Act, the Delegate stated:

In accordance with my reasoning at ss 190B(5) and (6), I cannot be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application. This is the case as I am not of the view that the requirement of ‘traditional’ has been established in this application. I accept that Ms George currently has a physical connection with the application area but I am not able to establish that it is a ‘traditional’ connection in the Yorta Yorta sense.

Should the application be dismissed?

32                  A noteworthy and commendable feature of the submission made by the Applicant’s solicitor and of the supporting affidavit evidence was their candour. It was stated in the Applicant’s written submission:

The Applicant has not yet sought to again amend the Application since the date of the registration test decision. However such a course of action has not been dismissed by the Applicant. The Applicant cannot properly consider its position in this regard until such time as there is further anthropological research undertaken in respect of the claim.

The Applicant apprehended that there were two primary reasons why the claim had failed the registration test. As put in the written submission, these were submitted to be:

(a)                The initial decision of Justice Dowsett in The Gudjala People # 2 v Native Title Registrar [2007] FCA 1167 was the applicable law at the time of the registration test.. The requirements for registration testing as enunciated in that decision (particularly those as apply to s 190B(5)(a) and (b)) have been softened somewhat by the recent full court decision in that matter.

(b)               There was a lack of material placed before the registration test delegate such that would allow her to satisfy herself as to the requirements of a factual basis to the claim as required by s 190B(5)(c).

[sic]

33                  Regard to the Delegate’s reasons confirms a reference by her to the judgement of Dowsett J in The Gudjala People # 2 v Native Title Registrar in the course of her consideration of the factual basis for the assertions described in s 190B(5)(a) and (b), but not in her consideration of s 190B(5)(c). His Honour delivered judgment in that case on 7 August 2007. There was delay in the institution of an appeal against his Honour’s decision. Further, the appeal was not heard until 14 May 2008, i.e. after the Delegate had made her decision. On 27 August 2008 the Full Court allowed the appeal. At the time when she reached her decision reference by the Delegate to the judgment of Dowsett J in The Gudjala People # 2 v Native Title Registrar was both understandable and appropriate.

34                  My assessment of why, having regard to the Delegate’s reasons, she decided not to accept the claim for registration accords with that of the Applicant’s solicitor.

35                  It was submitted on behalf of the Applicant that the jurisprudence which has developed in this Court in relation to the striking out under s 84C of the Native Title Act of an application on the basis of a failure to comply with the requirements of that Act was relevant by analogy to the dismissal of an application pursuant to s 190F(6). That jurisprudence, of which Williams v Grant [2004] FCAFC 178 and Bodney v Brophy [2004] FCAFC 226 are exemplars at intermediate appellate level, evidences an application in the particular context of the dismissal of a native title application, of the reticence which customarily attends the summary dismissal of a proceeding under a rule such as, in this Court, O 20 r 4 of the Federal Court Rules, having regard to root authorities on the subject such as General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 and Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91.

36                  Section 84C of the Native Title Act highlights an ability to strike out an application on a particular basis. It expressly recites that it is not exhaustive of the making of any other application to strike out the application for the determination of the native title claim: s 84C(4). Other bases which suggest themselves are pursuant to O 20 r 4 of the Federal Court Rules or under s 31A of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act). Another is pursuant to s 190F(6) of the Native Title Act.

37                  Section 31A of the Federal Court of Australia Act expressly modifies the position which would otherwise prevail, having regard to the root authorities mentioned, in the determination of whether an application has reasonable prospects of success. A question which emerges is whether s 190F(6), like s 84C, merely highlights a particular basis for summary dismissal leaving the general law on that subject applicable or whether it, too, should be regarded as providing a unique power of dismissal which “is to be construed and applied according to its terms, not under the influence of ‘muffled echoes of old arguments’ concerning other legislation”: Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404, at 414.

38                  Subsection 190F(6) is found within Pt 7 of the Native Title Act, which is concerned with the registration of native title claims on the Register established under that Part. It was added to the Native Title Act last year by the Native Title Amendment (Technical Amendments) Act 2007 (Cth) (The Technical Amendments Act); by s 3 and Sch 1, Pt 1, item 107 of that Act.

39                  On its face, s 190F(6) of the Native Title Act appears to provide for a wholly self-contained power of dismissal. The ability to exercise that power is engaged only by the fulfilment of conditions precedent which are set out in s 190F(5). Once engaged, the subsection itself sets out, in para (a) and para (b) the considerations which are relevant.

40                  Paragraph (a) of s 190F(6) is concerned both with the then present and the predicted state of the application for determination of the native title claim, with what the subsection terms “the application in issue”. The immediate end to which the paragraph is directed is whether there is any feature of the application which has changed or is “likely” to change in the future which would lead to a different registration decision by the Registrar. The amendment of an application by leave of the Court gives rise to an obligation on the part of the Court’s registrar to give the Registrar a copy of the amended application: s 64(4) Native Title Act. In turn, and subject to exceptions which it is not necessary to detail, that triggers an obligation on the part of the Registrar to consider whether to accept for registration the claim as made in that amended application: s 190A(1) Native Title Act.

41                  Paragraph 190F(6)(b) seems to have been added out of an abundance of caution as something of a “fail safe” so as to enable justice to be done in the circumstances of a particular case. It is joined by the conjunctive, “and” to paragraph (a), which indicates that the opinion for which it provides must also be formed before the s 190F(6) dismissal power may be exercised.

42                  That is not to say that it constitutes an invitation to preserve an application on the basis of whimsy or sympathy.  Paragraph 190F(6)(b) contains a double negative – “no other reason why the application in issue should not be dismissed”. Casting the paragraph in that way and using the adjective “other” might be thought infelicitous drafting given that s 190F(6)(a) supplies a reason why an application should be dismissed.  Be this as it may, given the terms of s 190F(6)(a) and as a matter of construction, the “other reason” must be found in something other than the prospect that the amendment of the application will occasion a different outcome in relation to the s 190B conditions when the amended application is considered by the Registrar. When it is recalled that the opinion based on that “other reason” would provide a basis for the preservation of an application even though the claim made in that application had not been accepted for registration because a condition in s 190B was not met, even though review remedies had been exhausted, even though there had been no subsequent amendment of the application and even though the Court could not be satisfied in relation to the prospect of any amendment of the application in the way described in s 190F(6)(a), one might think that, the circumstances warranting the formation of that opinion would be very singular indeed. It is though, neither necessary nor appropriate, to delineate in advance what those circumstances might be. Trite though the observation may be, they will be case specific.

43                  Within s 190F(6)(a), the meaning to afford the word “likely” is elusive. The judgments delivered by Bowen CJ (with whom Evatt J agreed) and Deane J in Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees’ Union (1979) 42 FLR 331 in relation to the meaning of that word as it appears in s 45D of the Trade Practices Act 1974 (Cth) nicely illustrate why this is so. Sir Nigel Bowen observed (at 339-340):

The word "likely" is one which has various shades of meaning. It may mean "probable" in the sense of "more probable than not" - "more than a fifty per cent chance". It may mean "material risk" as seen by a reasonable man "such as might happen". It may mean "some possibility" - more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified.

In Australian Telecommunications Commission v Kreig Enterprises Pty. Ltd. (1976) 27 FLR 400 Bray C.J. had to consider the meaning of the word "likely" in s. 139B of the Post and Telegraph Act 1901-1973 (Cth). The context, of course, was different. However, Bray C.J. concluded it meant "more probable than not" in that context. His Honour expressed the view that that was the natural and ordinary meaning of "likely", though he referred also to the rules of construction applicable where the statute being interpreted is a penal statute or one which, as in the case of s. 139B, imposed an additional liability beyond the liability in tort.

It was suggested by Joske J. in Trade Practices Commission v Total Australia Ltd. (1975) 24 FLR 413 that "likely" in s. 47 (5) of the Trade Practices Act was equivalent to "calculated" and he referred to Thurley v Hayes (1920) 27 CLR 548, at p 551 . However, in that case "calculated" was interpreted to mean "likely" in order to rid the word of its overtones of intention.

…

The circumstances to which s. 45D may apply are so various that I hesitate to place a gloss on the section by preferring one meaning of "likely" rather than another for the determination of this particular case. It is unnecessary to do so, because I have formed the view that whichever meaning is adopted the evidence leads me to the conclusion that the likelihood of substantial loss or damage has been established.

Mr Justice Deane observed (at 346-347):

The word "likely" can, in some context, mean "probably" in the sense in which that word is commonly used by lawyers and laymen, that is to say, more likely than not or more than a fifty per cent chance ("an odds-on chance", per Lord Hodson in Koufos v. C. Czarnikow Ltd. [1969] 1 AC 350, at p 410 and see, as to the meaning of the word "probable", Eggleston Evidence, Proof and Probability (1978), p. 10 et seq). It can also, in an appropriate context, refer to a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to "prone", "with a propensity" or "liable". When so used, it is sometimes equated with the concept of foreseeability in the law of negligence (see, for example, Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. Ltd. (Wagon Mound No. 2) [1967] 1 AC 617, at pp 634-635 ; Callaghan v. Wm. C. Lynch Pty. Ltd. (1962) 79 WN (NSW) 830, at p 835 ). Thus, if I fire a rifle through drawn curtains into a quiet lane in a country village, it is not likely, in the sense of more likely than not or an odds-on chance, that I will injure anyone. It would, however, be difficult to deny that there was a real chance or possibility (or likelihood in that sense) that an occasional passer-by would be wounded by the bullet. Plainly, the act of firing a rifle through drawn curtains into a lane used by pedestrians would be an act which was, in the circumstances, prone or liable (likely in that sense) to cause injury to a passing pedestrian.

In Australian Telecommunications Commission v. Krieg Enterprises Pty. Ltd. (1976) 27 FLR 400, Bray C.J., after an instructive consideration of relevant authorities, expressed the view that the ordinary and natural meaning of the word "likely" is synonymous with the ordinary and natural meaning of the word "probable" and both words mean that there is an odds-on chance of the thing happening. His Honour added that statutes containing the words have usually been construed that way, particularly so where the statute is a penal statute or is imposing an additional liability in tort. This view, if accepted, would lead to the conclusion that, prima facie, the word "likely" in s. 45D (1) means probably in the sense of more likely than not. While dictionary definitions and examples of judicial and lay usage can be adduced to offer strong support for that view, I am unable to accept that likely is synonymous with "more likely than not" or that if there is a 49.9 per cent chance of an event occurring it would ordinarily be denied that it was likely (or "quite likely") that the event would occur. Nor does it appear to me that there is a presumption that, in a legislative provision proscribing conduct that is likely to cause loss or damage to another, the legislative intent was that conduct which had a 49.9 per cent chance of causing such damage was to be outside the proscription.

44                  Thus, depending upon the context in which it appears, “likely” can mean “more probable than not” or it can mean “some possibility, more than a remote or bare chance”. Tillmanns Butcheries and, in turn, Australian Telecommunications Commission v Kreig Enterprises Pty. Ltd, referred to in each of the substantive judgments delivered in Tillmanns Butcheries, demonstrate the importance of context in the determination of the meaning of the word. For example, that there was a reticence on the part of this Court in Tillmanns Butcheries to confine the meaning of the word to “more probable than not” in the context a provision directed in the public interest to the proscription of a form of behaviour in trade or commerce considered by Parliament to be undesirable is, with respect, readily comprehensible. 

45                  The occasion for affording the word “likely” the meaning “more probable than not” in a provision directed to the dismissal of a native title application without a hearing on the merits of that application is less compelling. It is true that the occasion for the exercise of the dismissal power in s 190F(6) of the Native Title Act may arise after the Registrar’s registration decision has either been administratively reviewed on the merits by the NNTT or reviewed by this Court. In the latter form of review the Court may make such decision in respect of issues of fact and law on the material then available as will do justice: Western Australia v Strickland (2000) 99 FCR 33 (Full Court). Yet the focus of these review alternatives remains the Registrar’s registration decision, not a determination of the merits of the native title claim made in the application.

46                  Regard pursuant to s 15AB of the Acts Interpretation Act 1901 (Cth) to secondary materials concerning the Bill which became the Technical Amendments Act offers no assistance either in the preferable meaning to afford the word “likely” in s 190F(6)(a) or, for that matter, in the ascertainment of the purpose of the power conferred on the Court by the sub-section.

47                  The reference in the explanatory memorandum to the clause which became s 190F(6) is nothing more than a paraphrase of the provision. The Ministerial Second Reading Speech (Commonwealth Parliamentary Debates, House of Representatives, 29 March 2007, p. 1) in respect of the Bill which became the Technical Amendments Act is brief, the then Attorney remarking generally of the amendments proposed in that Bill, “While these amendments are minor and technical in nature, they will substantially improve the workability of the Native Title Act.” There is no reference to the proposed empowerment of the Court to dismiss an application as a sequel to a decision by the Register not to accept for registration the claim made in it and after exhaustion of review remedies in respect of that decision.

48                  Amendments to that Bill were proposed in the Senate following a report by the Legal and Constitutional Affairs Committee of that House. Both in that committee’s report and in Parliamentary debates one finds reference to the report of a review commissioned by the then Attorney-General of native title claims resolution processes by two members of the Queensland Bar, Mr Hiley RFD, QC and Dr Levy RFD (Hiley and Levy, Native Title Claims Resolution Review, Commonwealth of Australia, released on 31 March 2006).  The report of that review was made public but it was not tabled in the Parliament. Further, the extent of its influence on the presence in the Native Title Act of what is now s 190F(6) is not made clear either in an explanatory memorandum or the Second Reading Speech. In these circumstances, I do not consider that it would be appropriate to refer to that review report for statutory construction purposes.

49                  A study of secondary materials confirms what a perusal of the 2007 Amendment Act andthe Technical Amendments Act would in any event suggest, which is that the two Acts were the culmination of an endeavour to address inadequacies perceived by the Parliament in native title law and practice under the Native Title Act even after major amendments were made to that Act by the Native Title Amendment Act 1998 (Cth) (1998 Amendment Act).

50                  Part 7 was inserted into the Native Title Act by the 1998 Amendment Act. In Donnelly for The Wahlabul People v Registrar National Native Title Tribunal [2000] FCA 1330 at [6], Hely J remarked of the claim registration regime introduced by Pt 7 that:

6          The registration test is not a screening mechanism for access to the Federal Court. A claim which is not registered may proceed to determination in the Court. But when a claim is on the Register the applicants are afforded significant procedural rights, including the right to be consulted upon, or to comment, on specific classes of future acts, and the right to negotiate over the grant of mining tenements or compulsory acquisition of the land. Given those statutory benefits, the purpose of the registration test is to ensure that only those claims with merit are registered.

Strictly, even after the amendments made by the Technical Amendments Act, it remains true that the registration test found in Pt 7 is “not a screening mechanism for access to the Federal Court” (my emphasis). That is so if for no other reason than that satisfaction of the registration test is not a condition precedent to the ability to file in the Court an application for determination of a native title claim. However, the presence now of s 190F(6) in the Native Title Act and the particular occasion for its engagement provided by s 190F(5) does indicate that satisfaction of the registration test has ramifications for whether an application should be allowed to remain on the Court’s list. Further, given that the Act confers the choice of a full right of review by the Court of the registration refusal decision and vests in the Court a discretion as to whether the application should be dismissed, that the registration decision is initially made by an administrative official is not indicative of an impermissible interference by the Executive with the exercise of the judicial power of the Commonwealth. It is s 190F(6) which provides the “screening mechanism”.

51                  Even though regard to secondary materials does not offer any particular assistance, that dismissal without a hearing on the merits may be a consequence of the Court’s absence of satisfaction in relation to the criteria mentioned in s 190F(6)(a) of the Native Title Act offers one reason why I am inclined not to construe the word “likely” in that provision as meaning “more likely than not”. Another is that the word appears as part of the composite phrase “is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar”. Within s 190F(6)(a) that composite phrase unusually requires the making of a predictive assessment by the Court not just of the prospect of amendment of the application but of the outcome of fresh consideration of the amended application by an administrative official. To construe the word “likely” as meaning “more probable than not” carries with it a potential for embarrassment not just of the Court as constituted when making that prediction but also of the Registrar when making that fresh registration decision and, on any later review, of the NNTT or, as the case may be, of a differently constituted bench if review by the Court is the alternative chosen. The meaning of “likely” which is more consonant with such considerations is a  what would reasonably be regarded as a real chance irrespective of whether that chance is greater than 50 per cent, as opposed to nothing more than a mere possibility.

52                  That Parliament has provided a particular basis in s 190F(5) of the Native Title Act upon which the power to dismiss in s 190F(6) is enlivened and that, within s 190F(6), para (a) itself provides for an evaluative and predictive judgment for the Court to make in relation to an application indicates that the question of whether an application ought to be dismissed is not to be approached by reference to an a priori assumption that the jurisprudence which attends, for example, dismissal of an application under s 84C of the Act is relevant. An understanding of the basis upon which either before the Registrar or on later review it was considered that the conditions in s 190B of the Native Title Act were not met is relevant to the making of a prediction of the fate on reconsideration of an amended application but otherwise the inability of the application to meet those conditions is a given. I reject the submission that submission that the jurisprudence in relation to s 84C is relevant by analogy to the question of whether or not to dismiss an application under s 190F(6).

53                  In the result, it is unnecessary to reach a final conclusion as to the meaning of the word “likely” in s 190F(6)(a) of the Native Title Act. That is because the evidence in relation to the prospect of amendment of the application did not rise beyond the level of a mere possibility.

54                  In response to the call to show cause, an affidavit of Mr Dore, the Principal Legal Officer of the North Queensland Native Title Representative Body Aboriginal Corporation (NQLC) was read on behalf of the Applicant. There was no challenge to Mr Dore’s affidavit by the State. I had occasion to form an impression of Mr Dore’s knowledge, experience and sense of duty to the Court in relation to native title matters when he appeared before me either on behalf of an Applicant or as amicus curiae in other native title matters on the list in 3 October 2008. In light of that, I have no reason to doubt the accuracy of what he deposes to in his affidavit. From his affidavit and from statements made in the Applicant’s written submissions, to which no objection was made by the State, it emerges that the NQLC is, in respect of this matter, now the relevant representative body in succession to the Central Queensland Land Council Aboriginal Corporation (CQLC). Difficulties have attended that succession. It is not necessary to detail them.

55                  In or about April this year the NQLC commissioned a consultant anthropologist to review all of the anthropological material held by the CQLC, not just holdings pertinent to this application. The purpose of that review was to enable the NQLC to obtain a clear picture of the nature and extent of the material on the various claims in what had hitherto been the region for which the CQLC had had responsibility. A preliminary report was received from this consultant anthropologist in June this year. This report indicates that a detailed analysis of existing material in relation to the claim made in the present application as well as a review of material relating to two other groups will need to be done before a research programme can be put in place “to provide the necessary material for connection”. I infer the latter to be a reference to material which would go to the satisfaction of s 190B(7) and also s 190B(5)(c) of the Native Title Act. Mr Dore attests that, “It would be anticipated that this research would assist with the Registration Test and that it would provide information as to whether the claim as currently formulated needs to be amended.” He further attests that, “The extent to which this process can be implemented is dependent upon funding from the Department of Families and Housing and Community Services and Indigenous Affairs ... and availability of consultant anthropologists.”

56                  I do not in any way suggest that the material necessary favourably to be satisfied for the purposes of s 190F(6)(a) of the Native Title Act must take the form of further affidavit material, be that from an anthropologist or otherwise, going to the conditions in s 190B and a related draft amended application. That would be a counsel of perfection. There must be something though which provides a reasonable foundation for the predictive value judgment called for in s 190F(6)(a) to be made. The evidence before me did not arise above the raising of a possibility that, at some uncertain time in the future, further evidence might possibly be obtained which might, in turn, possibly generate an amendment of an unidentified kind of the application in its present form. That is a long way short of what is needed, even taking a benign view of the meaning to be given to the word “likely”. Further, it is quite impossible on the evidence to reach any predictive conclusion at all as to whether any amendment would lead to a different result upon reconsideration of an application so amended by the Registrar.

57                  In voicing these opinions, I do not ignore but rather accept as inherently likely that either because of the very nature of the task or availability of financial resources or trained personnel (or a combination of such factors) a long lead time might attend the obtaining of anthropological evidence.

58                  The Applicant’s submission, it may be recalled, contended that the Full Court’s decision in the Gudjala People # 2 case (supra) had “softened somewhat” the requirements for registration testing (particularly in relation to s 190B(5)(a) and (b) of the Native Title Act). The relevance of this contention was not developed in the submission.

59                  In the Gudjala People # 2 case (supra, at [90] to [92] ) the Full Court offered the following guidance as to the inter-relationship between s 62 of the Native Title Act, which relevantly governs the material to be contained in a claimant application such as the present and the consideration of a claim for registration for which s 190A of that Act provides and the ramifications of that inter-relationship in terms of satisfaction by the Registrar or the NNTT or the Court on review that the conditions in s 190B of the Act are or are not met.

[90]     A convenient starting point, in considering the correctness of his Honour’s approach, is to consider the interaction between s 62 and s 190A in the terms they were in at the time the application was lodged. The former provision prescribes what an applicant must do to commence an application. The latter provision establishes a statutory regime under which the Registrar of the Tribunal assesses the application to determine whether it should be accepted. It is tolerably clear that what the assessment entails is informed by what is required of an applicant to commence an application. Indeed, there is no reason to doubt that this statutory scheme contemplates that it would be open to the Registrar to accept an application based on the application, including the accompanying affidavit, without having regard to other information of the type referred to in s 190A(3). Accordingly, the statutory scheme appears to proceed on the basis that the application and accompanying affidavit, if they, in combination, address fully and comprehensively all the matters specified in s 62, might provide sufficient information to enable the Registrar to be satisfied about all matters referred to in s 190B. This suggests that the quality and nature of the information necessary to satisfy the Registrar will be of the same general quality and nature as the information required to be included in the application and accompanying affidavit. Of course, if an applicant fails to fully and comprehensively furnish the information required by s 62 then there is a risk that the Registrar will not accept the claim although that risk is ameliorated by the power of the Registrar to consider information additional to that contained in the application, including documents (other than the application) provided by an applicant: see s 190A(3)(a).

[91]     What then is the nature and quality of the information required by s 62? In substance, s 62(1) requires that the accompanying affidavit must contain evidence that the applicant believes the claimed rights have not been extinguished, believes none of the claimed area is covered by an entry in the Register, believes all the statements made in the application are true and that the applicant is authorised to make the application. The application must contain the details specified in s 62(2) and may contain details of the matters referred to in s 62(1)(c). There is an obvious link between the requirement that the evidence of the applicant include a statement that the applicant believes that all the statements in the application are true and the requirement that the application contain the details specified in s 62(2) together with the identification of the details in that subsection.

[92]     Of central importance in this appeal are the details specified by s 62(2)(e), namely details which constitute a general description of the factual basis on which it is asserted that the native title rights and interests claimed existed and, in particular, the matters referred to in ss 62(2)(e) (i), (ii) and (iii). Those details are in aid of the description, with some particularity, required by s 62(2)(d) of the asserted native title rights and interests. The fact that the detail specified by s 62(2)(e) is described as “a general description of the factual basis” is an important indicator of the nature and quality of the information required by s 62. In other words, it is only necessary for an applicant to give a general description of the factual basis of the claim and to provide evidence in the affidavit that the applicant believes the statements in that general description are true. Of course the general description must be in sufficient detail to enable a genuine assessment of the application by the Registrar under s 190A and related sections, and be something more than assertions at a high level of generality. But what the applicant is not required to do is to provide anything more than a general description of the factual basis on which the application is based. In particular, the applicant is not required to provide evidence of the type which, if furnished in subsequent proceedings, would be required to prove all matters needed to make out the claim. The applicant is not required to provide evidence that proves directly or by inference the facts necessary to establish the claim. (Emphasis added).

60                  The Full Court observed (supra, at [93]) that, “[We] think there are observations of the primary judge in his reasons which suggest that his Honour approached the material before the Registrar on the basis that it should be evaluated as if it was evidence furnished in support of the claim. If, in truth, this was the approach his Honour adopted, then it involved error.” This observation though did not form the basis upon which the appeal in the Gudjala People # 2 case was allowed. The appeal was allowed on the basis of an error perceived by the Full Court in the way that learned trial judge had evaluated and come to discount the report of an expert anthropologist, Mr Hagen which formed part of the application for determination of native title. That evidence had been criticised or in many respects rejected on the basis that it “provides opinions and conclusions rather than any alleged factual basis for such opinions and conclusions or for the claim”.

61                  That was held to be in error for two reasons. It was inconsistent with the position under the Evidence Act 1995 (Cth) in which a “basis rule” requiring facts upon which an expert opinion or conclusion is based to be established before that opinion or conclusion is admissible does not prevail. Rather, under that Act, an absence of establishment of such facts may diminish the weight to afford that opinion or conclusion.  Further, it ignored the position that expert anthropological evidence may not necessarily be opinion evidence at all but rather be direct evidence of the anthropologist’s observations and thus admissible in the ordinary course. Even though Mr Hagen’s report did not fall for consideration by reference to questions of admissibility that would arise on a trial of the application, the Full Court (supra, at [96]) considered that his Honour’s erroneous conception “affected his approach in assessing the matters required to be considered by s 190B(5)”.

62                  Certainly, in evaluating for the purposes of s 190F(6)(a) of the Native Title Act the prospect of a different outcome an amended application was considered by the Registrar, it is necessary to make that evaluation informed by what was said by the Full Court in the Gudjala People # 2 case, particularly in the parts I have emphasised in the passage from the Full Court’s judgement quoted above

63                  Even though, by the time when a show cause proceeding under s 190F(6) is conducted, the occasion for the review of an adverse registration decision will have passed, I am prepared to accept that, for the purposes of s 190F(6)(b), an “other reason” might be found for not dismissing an application in circumstances where later judicial authority in another case disclosed that the Registrar’s approach to whether the conditions in s 190B had been satisfied had been overly rigorous.

64                  Even allowing for such matters, it seems that the Applicant acknowledges that in its present form the application is wanting in detail, especially in the provision of a factual basis for an assertion that the native title claim group have continued to hold the native title in accordance with acknowledged traditional laws (s 190B(5)(c)). It is not clear to me, having regard to what I have regarded as key passages in the Delegate’s reasons and quoted above, that her conclusions in relation to s 190B(5) were wholly attributable to the influence of decision of Dowsett J in the Gudjala People # 2 case. In the absence of a more developed and particularised submission as to the ways in which, having regard to her reasons, his Honour’s reasons for judgment in the Gudjala People # 2 case impacted upon the Delegate’s reasons and how the outcome may have differed in light of the observations of the Full Court further consideration of this subject is not, in my opinion, warranted.

65                  It was further submitted on behalf of the Applicant that the State was aware of the status of the application.

66                  It is relevant to note that the State has not moved under s 190F(6) to strike out the application but neither is it necessary that it do so. The Court is empowered under this sub-section to dismiss an application of its own motion. That may perhaps evidence a recognition by the Parliament that, even where the claim made in an application has proved incapable of furnishing, even at the registration stage, a factual basis for the assertions mentioned in s 190B, a respondent body politic may be unable or unwilling to seek dismissal of that application. If so, that recognition is unarticulated in secondary materials.

67                  It does not do to speculate further on the Parliament’s motivation for conferring such a power on the Court. The fact is that the power exists and its exercise is necessarily attended with a procedural fairness obligation; hence a need for a show cause proceeding.

68                  While the State did not move to seek the dismissal of the application, it did submit that it was open for the Court to take this course of its own motion. I infer from this that the State did not consider that there was, in terms of s 190F(6)(b) of the Native Title Act, some “other reason” why the application should not be dismissed.

69                  The stance adopted by the State does not, in my opinion, provide a basis for the preservation of this application.

70                  The Applicant also referred in submissions to leadership which the authorised persons had provided to the native title claim group in various activities including the negotiation of an indigenous land use agreement under the Native Title Act. It was said that none of this was possible prior to the filing of the application and that “All of that progress would be lost were the application to be struck out.” None of this was challenged by the State.

71                  Regard to s 61(1) of the Native Title Act discloses that a native title determination application must be made by persons authorised by all the persons in the native title claim group. Want of due authorisation was not the reason why the claim made in the application was not accepted for registration. I am certainly prepared to infer that, in this case, those who came to be authorised persons for the purposes of the application gained recognition as leaders which facilitated other beneficial endeavours. It is not at all clear to me why their qualities of leadership would be lost if the application is dismissed. In any event, collateral advantages only at best tangentially related to the presence of a native title application on the Court’s list do not, in my opinion, provide a reason not to dismiss this application.  I should add that I have not formed any adverse view whatsoever about the character of the authorised persons.

72                  Such anthropological and other evidence as has been gathered to date to provide a factual basis for the application will not be destroyed by the dismissal of the application. Neither will dismissal result in a determination on the merits of the application. It will be for the members of the native title claim group or of such other claim group as further evidence may suggest to take such action as they may be advised in relation to the bringing of a fresh application. Dismissal under s 190F(6) of this application will not prevent the bringing of a further application if that is the course advised.

73                  I am satisfied that the application has not been amended since it was considered by the Delegate. I am also satisfied that the application is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar. I am further of the opinion that there is no other reason why the application should not be dismissed.

74                  In these circumstances, the application must be dismissed.

 

I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:         10 October 2008

Solicitor for the Applicant:	Michael Owens & Associates
Solicitor for the Respondent:	Crown Solicitor

Date of Hearing:	3 October 2008
Date of Judgment:	10 October 2008