FEDERAL COURT OF AUSTRALIA

Taylor v State of Western Australia [2008] FCA 1675

NATIVE TITLE – court’s discretionary power to dismiss an application on its own motion if the application has not been amended since earlier failure of registration test and no evidence that likely to be amended in a way that would lead to a different outcome – no other reason why the application should not be dismissed

Held:  The application be dismissed.

Native Title Act 1993 (Cth) ss 61, 62, 190A, 190B(3), 190B(5), 190B(6), 190B(7), 190C(2), 190C(4), 190F(5), 190F(6)

Federal Court Rules  O 78 r 12

Christine George & Ors on behalf of the Gurambilbarra People v State of Queensland[2008] FCA 1518

KEVIN TAYLOR and ILDEPHONSE TAYLOR ON BEHALF OF THE AMANGU PEOPLE v STATE OF WESTERN AUSTRALIA, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC), COMMONWEALTH OF AUSTRALIA, SHIRE OF THREE SPRINGS, SHIRE OF CARNAMAH, SHIRE OF IRWIN, YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION, ARNOLD FRANKS, RAYMOND DANN & OTHERS REPRESENTING AMANGU CLAIMANTS, COCKBURN CEMENT LTD, LUZENAC AUSTRALIA PTY LTD, MAGNETIC MINERALS PTY LTD and TELSTRA CORPORATION LIMITED

WAD 6006 of 2001

MCKERRACHER J

12 NOVEMBER 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

INTRODUCTION

1                     Section 190F(6) of the Native Title Act 1993 (Cth) (the NTA), introduced in the amendments made to the NTA in July 2007, confers upon the Court a discretionary power to dismiss an application, either on the application of a party or on its own motion, if:

(a)        the Court is satisfied that the application has not been amended since consideration by the Native Title Registrar (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.

2                     Pursuant to s 190F(5), the new dismissal power applies where:

(a)        the Registrar does not accept the claim for registration because:

(i)         it does not satisfy all the merit conditions of the registration test; or

(ii)        it was so procedurally defective as to render it impossible to determine whether the claim satisfies the merit conditions; and

(b)        the Court is satisfied that the avenues for reconsideration and review have been exhausted without registration of the claim.

3                     Order 78 r 12 of the Federal Court Rules provides an application for review must be filed within 42 days of the notification of the Registrar’s decision.

4                     The Explanatory Memorandum to the Native Title Act Amendment Bill 2006 provides an insight into the rationale behind the introduction of the new dismissal power:

Currently, while unregistered applications do not receive certain procedural benefits that attach to registered claims (such as the right to negotiate), unregistered applications may still proceed to determination. There is presently no requirement on claimants to amend their claim to meet the requirements of the registration test. The amendments inserted by item 73 are intended to provide a greater focus on the responsibility of applicants to take steps to improve the quality of their claims, recognising that poor quality claims are a burden on the native title system.

5                     If the Court considers the application has been amended since consideration by the Registrar or is likely to be amended in a way that would lead to a different outcome once considered by the Registrar, it would be appropriate for the Court to await the outcome of the reapplication of the registration test before considering whether to dismiss the application.

6                     Pursuant to s 190F(6) of the NTA, the Court may consider any ‘other reason’ why an application should not be dismissed.  The Explanatory Memorandum to the Native Title Act Amendment Bill 2006 suggests that the criterion set out in s 190F(6):

... will ensure that applications are not dismissed where there is good reason for a claim remaining in the system, despite being unregistered.

7                     By way of example, the Explanatory Memorandum suggests that the Court may consider that an application should not be dismissed if, despite being unregistered, the claim is close to reaching resolution (para 4.331)

8                     As to the principles applicable to how s 190F(6) should operate, I refer to and respectfully adopt, (without repeating), the recent analysis by Logan J in Christine George & Ors on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518.

the application

9                     The Taylor Group application was filed in the Federal Court on 14 September 2001.  The application covers approximately 10,100 square kilometres in the south-west Geraldton region.

10                  The Taylor Group applicants are not currently represented by the representative Aboriginal/Torres Strait Islander body for the area Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (Yamatji) or otherwise legally represented.

First registration test

11                  The Taylor Group application first underwent the test for registration in s 190A of the NTA on 15 July 2002.  The delegate of the Registrar decided not to accept the application for registration.  No further steps in relation to the application have been taken by the applicants since that time.

Second registration test

12                  Because the Taylor Group's application was made after 30 September 1998 and before 15 April 2007, and was not on the Register of Native Title Claims when the Native Title Amendment Act 2007 (Cth) commenced, the Registrar was required to reconsider the application for registration.  This occurred on 8 November 2007, when the Registrar's delegate decided that the application should not be accepted for registration because it did not satisfy the following conditions:

(i)         Subsection 190C(2) - the delegate was not satisfied that the application contained all of the details and other information and documents required by s 61 and s 62 of the NTA;

(ii)        Subsection 190C(4) - the delegate was not satisfied that the persons named as the applicant had been authorised by the native title claim group;

(iii)       Subsection 190B(3) - the delegate was not satisfied that the description of the native title claim group was sufficiently clear that it could be ascertained whether any particular person is in the group;

(iv)       Subsection 190B(5) - the delegate did not consider that the factual basis on which it was asserted that the native title rights and interests claimed exist was sufficient to support each of the particularised assertions in s 190B(5);

(v)        Subsection 190B(6) - the delegate did not consider that, prima facie, at least some of the claimed native title rights and interests could be established; and

(vi)       Subsection 190B(7) - the delegate was not satisfied that at least one member of the native title claim group has a previous or current traditional physical connection with any part of the application area.

13                  Since the applicant was notified of the Registrar's decision, no application seeking leave to amend the Taylor Group application has been filed; nor has an application for review of the Registrar's decision been made.

Submissions filed by Yamatji

14                  Yamatji’s submissions make clear that, Yamatji is involved in discussions with the State, regarding a proposed Alternative Settlement Agreement under s 86F of the NTA to resolve native title claims in the Southern Yamatji region.

15                  Yamatji represents the Amangu, Naaguja and Hutt River native title claims, which cover an area of approximately 34,000 sq km in the southern Yamatji region.  The external boundary of the three claims extends from Northampton, south to Eneabba, and east to Perenjori and Yalgoo.  The area of land within that external boundary is, as a matter of convenience, referred to as the ‘Alternative Settlement Area’.

16                  In addition to the Amangu, Naaguja and Hutt River native title claims, there are five other native title claims that overlap parts of the Alternative Settlement Area; namely: Mullewa Wadjari (WAD 6119 of 1998), Franks (WAD 6273 of 1998), Taylor (WAD 6006 of 2001), Widi Mob (WAD 6193 of 1998) and Widi Binyardi (WAD286 of 2004).

17                  Of the five native title determination applications that overlap parts of the Alternative Settlement Area, Taylor, Widi Mob and Widi Binyardi are presently before the Court in relation to ss 190F(5) and (6) of the NTA.

18                  On 3 September 2004, the claims involved in the Alternative Settlement negotiations and Yamatji met with representatives from both the Office of Native Title (ONT) and Department of Planning and Infrastructure (DPI).  In the course of that meeting, the ONT representatives advised that the State is committed to negotiating an Alternative Settlement Agreement subject to the following conditions:

1.                  The agreement would need to be inclusive of all traditional Indigenous interests in the Alternative Settlement Area;

2.                  The State would need to be satisfied that it is dealing with the ‘right people’ for that area;

3.                  There would need to be a single agreement which includes all overlapping claim groups although that agreement may include subsidiary agreements with each of the overlapping groups; and

4.                  There would need to be a single entity, to sign the agreement, however that legal entity may consist of subsidiary legal entities.

19                  In his mediation progress report to the Court dated 23 June 2008, Member John Catlin of the National Native Title Tribunal states as follows:

On 11 December 2007 I reported to the Federal Court in relation to this and other applications in the Southern Geraldton region and recommended that the Tribunal continue to provide mediation to consider options for resolving the claim overlaps. Currently the option being pursued by the cluster of Southern Geraldton claims, including Taylor, is the proposed Southern Geraldton Alternative Settlement Agreement (ASA).

Some members of the Taylor Group have successfully sought representation on the working group of the overlapping registered Amangu claim. Taylor Group families are also accepted for representation on the combined working group for the proposed ASA. The Tribunal held a number of telephone discussions with the applicant regarding Taylor Group's inclusion in the proposed  ASA however, as noted above, Mr Taylor did not attend any of the assistance meetings arranged by the Tribunal.

The Tribunal remains willing to provide assistance to the claimants for the resolution of the four overlaps to this claim, however, based on my understanding that none of the respondents, including the State of Western Australia, intend to mediate with the Taylor Group claim in its own right it is my view that there is no scope for a mediated determination of this application.

20                  If the Taylor claim remains, but does not participate in the Alternative Settlement process, then it could prejudice the other claims in the process, including the Amangu claim, due to the State's requirements outlined above.

21                  Yamatji also states in its submissions that it is not aware of any reason why this claim should not be dismissed under ss 190F(5) and (6) of the NTA.

Submissions filed by the First Respondent

22                  Although the State filed submissions on 23 June 2008, it subsequently advised at the review hearing on 30 June 2008 that it withdrew those submissions and adopted the submissions filed by Yamatji.

Conclusion

23                  On the basis of the history, I am satisfied for the purposes of s 190F(6) of the NTA that the application has not been amended since it was considered by the Delegate.  There is no evidence or indication that the application is likely to be amended in a way that would lead to any different conclusion by the Registrar.  There is no other reason why the application should not be dismissed.  The application will be dismissed.

Associate:

Dated:         12 November 2008