FEDERAL COURT OF AUSTRALIA

Whalebone v State of Western Australia [2008] FCA 1678

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 62(1)(a), 190A, 190A(6), 190B, 190B(5), 190B(5)(a), 190B(5)(b), 190B(5)(c), 190B(6), 190B(7), 190C, 190C(2), 190C(4), 190F(5), 190F(6), 190F(6)(b)

Federal Court Rules O 78 r 12

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

RALPH WHALEBONE, JOHN LOCKYER, ANN SIBOSADO and VINCENT LOCKYER v STATE OF WESTERN AUSTRALIA, YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION, FOURSEASONS CORPORATION PTY LTD, PEDO PTY LTD and TELSTRA CORPORATION LIMITED

WAD 8 of 2005

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 applicants represent the Bindurrna people.  The application was filed in the Federal Court on 14 January 2005.  The application, which lies in-between the Ngarluma Yindjibarndi determined area and the Kariyarra claim (WAD 6169/98) in the north-west Pilbara, covers approximately 1,500 square kilometres of land.

10                  The applicants are not currently represented by the representative Aboriginal/Torres Strait Islander body for the area (Yamatji Marlpa Bama Baba Maaja Aboriginal Corporation) or otherwise legally represented although counsel has filed submissions on behalf of the applicant in relation to the s 190F(6) issues which have been raised by the court with the parties.

First registration test

11                  The Bindurrna application first underwent the test for registration in s 190A of the NTA on 9 September 2005.

12                  The conditions of the registration test are set out in section 190B and 190C of the NTA.  Subsection 190A(6) provides that the Registrar must be satisfied that the application meets all of the conditions in s 190B (which deals mainly with the merits of the claim) and s 190C (which deals with procedural and other matters) before the claim in the application can be accepted for registration. 

13                  The delegate of the Registrar decided not to accept the application for registration because it did not pass the authorisation condition in s 190C(4).  The delegate did not consider the application against the remaining conditions in s 190C and s 190B due to findings that the shortcomings in the authorisation process were so fundamental that any consideration of the application against the remaining conditions was not warranted.

14                  No further steps in relation to the application have been taken by the applicants since that time and the application has never been amended.

Second registration test

15                  Because the Bindurnna 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 21 September 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 application was not accompanied by an affidavit that complied with s 62(l)(a) of the NTA and the delegate was not satisfied that the application was accompanied by the document prescribed by s 62(l)(a) of the NTA;

(ii)        Subsection 190C(4) - the delegate was not satisfied that the application was certified by the representative Aboriginal/Torres Strait Islander body for the application area and was not satisfied that the applicant was authorised to make the application and to deal with matters arising in relation to it by all the other persons in the native title claim group;

(iii)       Subsection 190B(5) - the delegate was not satisfied that the factual basis on which it was asserted that the native title rights and interests claimed exist was sufficient to support the assertions in subs 190B(5)(a), (b) and (c) of the NTA;

(iv)       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

(v)        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.

16                  Since the applicants were notified of the Registrar's decision, no application seeking leave to amend the Bindurrna application has been filed; nor has an application for review of the Registrar's decision been made.

Submissions filed by the Applicants

17                  The applicants, by counsel, Mr Marsh, filed brief submissions in opposition to the application being dismissed.  Those submissions were directed primarily to s 190F(6)(b).

18                  It was submitted that the provision required the Court to take into account issues of fairness and opportunity and that in the present application:

(a)        The applicants have had no significant legal assistance to date;

(b)        The s 136G(3) report demonstrates the difficulty the applicants have in dealing with the procedures before the Court and the Tribunal;

(c)        The applicants have not yet been able to put their case at its best before the Court;

(d)        There is now a reasonable prospect that the applicants will be able to present their case more effectively in the near future; and

(e)        The applicants are not legally represented, but there is a strong probability of solicitors being appointed and of funding being available.

19                  Although no evidence was provided in support of the submissions, it was accordingly submitted that the application be adjourned to December at which time a better assessment of the merits may be possible.  

20                  Alternatively, it was argued that the resolution of the issues raised by s 190F should not be undertaken without a full examination of the evidence and an opportunity to call witnesses and cross examine them. 

21                  I did permit the applicants to file more substantive submissions before determining the position.  However in my view nothing in the submissions of the applicants raises any more than generalised hopes and possibilities. 

22                  There is no clear evidence that an amended application (at all) will be filed, let alone one that is likely to lead to a different outcome once considered by the Registrar.

23                  It can not be argued that the applicant has not had the opportunity to address the issue and provide evidence and submissions in support of the likelihood of a different outcome.

24                  It is open to the Court to dismiss the matter 'on its own motion' - this just means that it has raised the issue itself.  Directions have been made in relation to dismissal of the application and the parties have been given the opportunity to provide submissions.   French J on  18 December 2007 ordered that

3.         The applicants, the State and any other interested party are to file submissions no later than 7 days prior to the review hearing in relation to the disposition of the application having regard to the outcome of the registration test.

25                  In relation to the suggestion that there should be further evidence, the applicant has not specified any further material at all that would be relied upon.

Submissions filed by the First Respondent (the State)

26                  The State advises that the National Native Title Tribunal has attempted, and will continue to, mediate a dispute between the Bindurrna claimants and the neighbouring Kariyarra claimants (WAD 6169/98) in relation to land over which both groups claim an interest.  The Tribunal (in its regional report prepared for the Pilbara regional directions hearing 30 June 2008) has advised that, unless resolved, the dispute may affect the negotiated resolution of both claims.

27                  As the State has not been directly involved in the Tribunal's mediation efforts, it is not aware of all of the details of the dispute between the Bindurrna and Kariyarra applicants.  Accordingly, it is not in a position to make an informed submission to the Court as to whether or not a valid ‘other reason’ (s l90F(6)(b) of the NTA) currently exists not to dismiss the Bindurrna application. 

28                  There is simply no basis for concluding that there is any ‘other reason’.

CONCLUSION

29                  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. 

30                  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. 

31                  There is no other reason why the application should not be dismissed. 

32                  The application will be dismissed. 

Associate:

Dated:         12 November 2008