FEDERAL COURT OF AUSTRALIA

Collard v The State of Western Australia [2008] FCA 1564

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 (Cth) - where application not likely to be amended in a way that would lead to a different outcome once considered by the Registrar of the Native Title Tribunal - where no other reason why the application should not be dismissed - application dismissed 

Native Title Act 1993 (Cth) ss 190A, 190E(1), 190F(1) and (6)

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

DONALD COLLARD and ANOR ON BEHALF OF THE NOONGAR PEOPLE v STATE OF WESTERN AUSTRALIA and ORS

WAD 6142 OF 1998

GILMOUR J

13 OCTOBER 2008

PERTH

THE COURT ORDERS THAT:

1.                  The application be dismissed.

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

REASONS FOR JUDGMENT

1                     On 13 October 2008 ex tempore reasons were given for dismissing the application.  The following are edited reasons.

Background

2                     On 11 December 2007 a delegate of the Native Title Registrar decided pursuant to s 190A of the Native Title Act 1993 (Cth) (Native Title Act) not to accept the application for registration.

3                     It was not submitted nor was there any evidence to suggest that since failing the registration test the Applicant has either applied to the National Native Tribunal pursuant to s 190E(1) of the Native Title Act for reconsideration of the Delegates decision or applied to the Court pursuant to s 190F(1) of the Native Title Act for the review of that decision. 

4                     In these circumstances the Court of its own motion listed the matter for a directions hearing on 9 April 2008.  At that directions hearing the Court directed the parties to file and serve submissions in relation to the disposition of the application pursuant to s 190F(6) of the Native Title Act on or before 7 May 2008.  Subsequent to this date and in light of the Full Court’s decision in the matter of Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 delivered on 27 August 2008, parties were invited by the Court to file and serve any further submissions prior to the hearing of the application.

Should the application be dismissed?

5                     On 21 May 2008 the applicant filed submissions in relation to all the Collard applications currently before the Court today (‘the Collard Submissions’) pursuant to the Order of the Court made on 9 April 2008.

6                     The effect of the Collard submissions across the applications appears to be to the effect that the Court should not dismiss them under s 190F(6) of the Native Title Act because they are likely to be withdrawn in exchange for some form of recognition by the South West Aboriginal Land and Sea Council.  It is not said in what way that is to be achieved or the terms in which it might be achieved.  Somehow, it is said, it would recognise the status of Mr and Mrs Collard who are the Applicants.

7                     The State of Western Australia submitted that neither these nor any of the other matters referred to in the Collard submissions provide any substantive reason why the applications should not be dismissed.

8                     In the Collard Submissions the Applicants state that they have not been able to obtain legal representation in preparing an amended application together with supporting evidence.  It is therefore conceded that the polygon claims in these applications are unlikely to be amended in the near future. 

9                     The question then is whether or not, in the opinion of the Court, under subsection 190F(6)(b) of the Native Title Act there is no other reason why the application in issue should not be dismissed.

10                  The Applicants submitted or pointed to negotiations having taken place to resolve the claims with the South West Aboriginal Land and Sea Council but that these are currently in abeyance.  They stated, however, that the Applicants remain keen on pursuing negotiations with the South West Aboriginal Land and Sea Council aimed at securing the withdrawal of their applications on terms that properly acknowledge their status as respected Noongar elders.  The Applicants point to the explanatory memorandum to the Native Title Amendment Bill 2006 which, at paragraph 4.331, it is submitted, suggests that the Court may consider that an application should not be dismissed if, despite being unregistered, it is close to reaching resolution.  That is not the position in this case.

11                  The Applicants advise that the land is said to include numerous sites of strong cultural significance, for example, the Hippo’s Yawn, which is a sacred women’s site where they gave birth.  They say that a mutual respect has developed between the claim group and the mining companies with whom they have developed a consultative relationship whereby community initiatives and support are negotiated and they submit that these matters together are good reasons, inferentially under s 190F(6)(b) of the Native Title Act, why their claims should not be dismissed.  None of these matters are of a kind which, in my opinion, might demonstrate another reason, in the circumstances where the criteria under s 190F(6)(a) of the Native Title Act have been satisfied, why the application should not be dismissed.  In my view, the application should therefore be dismissed and I so order.

Associate:

Dated:         21 October 2008