FEDERAL COURT OF AUSTRALIA

Champion v State of Western Australia [2009] FCA 941

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

Native Title Act 1993 (Cth) ss 190A, 190B, 190C, 190D, 190F, 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

BRIAN CHAMPION, CLEM DONALDSON, DENNIS SAMBO, CADLEY SAMBO AND LYLE WILSON v STATE OF WESTERN AUSTRALIA, COMMONWEALTH OF AUSTRALIA, CITY OF KALGOORLIE  - BOULDER SHIRE OF COOLGARDIE, STANLEY NORTHCLIFFE BEATON, JOSEPH MICHAEL GUERINI, ARTHUR ROBERTS, JOHN MAXWELL ROBERTS AND RENA ANN ROBERTS, RT BAYLEY, AE BAYLEY, JACQUELINE PAM CARTER, PETER MATTHEW CARTER, ALAN FRANK CLAUSSEN, TOM COCK, ROBERT LEO DELLA BOSCA, HORACE ANTHONY DELLA BOSCA, LAURENCE PAUL DELLA BOSCA, MEGAN FUNSTON, TIMOTHY FUNSTON, GENTSCH, JARAC PTY LTD, CHARLES BARTON CECIL JONES, JOHN LOAD CECIL JONES, BARTON CECIL JONES, BURCHILL FRANCIS CECIL JONES, KEITH MADER, ARTHUR MAXWELL ROBERTS, HAYDEN CHRISTOPHER SCANLON, NANCY FAYE SCANLON AND RUSSELL TRURAN, ARCHAEAN GOLD NL, MARIO BALMER, OLIVER BERTONCINI, CENTRAL KALGOORLIE GOLD MINES NL, STANLEY EVANS, FORRESTANIA GOLD NL, BRIAN GALAN, LAKESIDE PTY LTD, CHARLES LEMANN, LUCKE BAY MINING & RESOURCES, KEVIN MAHONEY, MARK NOMINEES PTY LTD, BRIAN MASON, JACKQUELINE MASON, CHARLES DAVID MCCORMICK, PLUTONIC RESOURCES LTD, GEORGE LEO POLLOCK, JOHN PRIOR, MARIO ROMEO, SANCAILO HOLDINGS PTY LTD, HECTOR SMITH, ROBERT TEASDALE, ALAN THOMAS, MICHAEL JOHN TILY-LAURIE, ERIC EWAN TILY-LAURIE, WA SALT KOOLYANOBBING PTY LTD, BHP BILLITON NICKEL WEST PTY LTD AND DALRYMPLE RESOURCES NL, KALGOORLIE LAKE VIEW PTY LTD, NEWMONT KALTAILS PTY LTD AND NORTH KALGURLI MINES PTY LTD, ANGLOGOLD ASHANTI AUSTRALIA LIMITED AND ANGLOGOLD AUSTRALIA (BROCKS CREEK) LTD, CEDRIC ANDERSON, ARTHUR H CORUNNA (DECEASED) AND ALBERT CORUNNA, GOLDFIELDS LAND & SEA COUNCIL and TELSTRA CORPORATION LIMITED

WAD 2 of 1998

MCKERRACHER J

24 AUGUST 2009

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.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                                             At the Goldfields Regional Case Management Conference conducted on 22 June 2009, this application was dismissed.  I indicated that I would publish short reasons for doing so. 

2                                             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.

3                                             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.

4                                             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.

5                                             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.

6                                             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.

7                                             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.

8                                             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).

9                                             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 HISTORY

10                                          By letter dated 30 August 2007, the delegate of the Native Title Registrar pursuant to ss 190, 190A, 190B, 190C and 190D NTA rejected the claim for registration purposes pursuant to s 190A NTA concluding that it was not possible to determine whether the claim satisfied all of the conditions in s 190B because of a failure to satisfy s 190C NTA.  On 13 December 2007, French J (as his Honour then was) ordered that all matters within the Goldfield region which had failed the registration test on the merits were to be listed for directions as to the disposition on 26 March 2008.  Submissions in relation to that directions hearing were filed on the part of the Goldfields Land and Sea Council which did not represent the applicants in this claim but did represent applicants in overlapping claims.  The Court ordered that the disposition of the application under s 190F was to be stood over for further directions. 

11                                          Siopis J on 9 December 2008 ordered that the applicant was to file and serve on the respondents then represented in Court any submissions in relation to the disposition of the application in relation to s 190F(6) on or before 28 February 2009.  Consequential orders were made to provide for parties wishing to respond.  No submissions were filed in response to his Honour’s orders. 

CONCLUSION

12                                          It is clear that there has been no amendment since the matter was considered and rejected by the delegate.  There is also, notwithstanding opportunities being provided, no evidence or indication that the application is likely to be amended in any way that would lead to any different conclusion by the Registrar.

13                                          There is no other reason why the application should not be dismissed.  The application will be dismissed. 

Associate:

Dated:         24 August 2009