FEDERAL COURT OF AUSTRALIA

Champion v State of Western Australia (No 2) [2011] FCA 345

THE COURT ORDERS THAT:

1.    The Court’s own motion under s 190F(6) of the Native Title Act 1993 (Cth) is adjourned for eight months.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1    The following reasons address a motion instigated by the Court to consider whether the application for native title in this matter should be dismissed pursuant to s 190F(6) of the Native Title Act 1993 (Cth) (the Act).

2    As noted in Strickland v Western Australia [2010] FCA 272 (at [4]-[10]):

4    Section 190F(6) of the Act, introduced in the amendments made to the Act on 20 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.

5    Pursuant to s 190F(5) of the Act, 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.

6    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.

7    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.

8    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.

9    Pursuant to s 190F(6) of the Act, 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 190F(6) ‘…will ensure that applications are not dismissed where there is good reason for a claim remaining in the system, despite being unregistered’ (at para 4.331).

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

BACKGROUND

3    This application (the Kalamaia application) initially failed the registration test on 26 July 1999. Affidavits required by s 62(1)(a) of the Act had not been provided. It followed the delegate was not satisfied that the applicant had complied with s 190C(2) and s 190C(4) of the Act, each of which provide as follows:

190C    Registration: conditions about procedural and other matters

…

Information etc. required by sections 61 and 62

(2)    The Registrar must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62.

…

Identity of claimed native title holders

(4)    The Registrar must be satisfied that either of the following is the case:

(a)    the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; or

(b)    the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.

4    The delegate did not at that stage go on to apply the merits test set out in s 190B of the Act to the application.

5    On 19 December 2000, the application was further amended. However, on 29 March 2001, the delegate refused to accept the amended application for registration on the grounds that the delegate could not be satisfied that:

    the persons in the native title claim group formed a properly constituted native title claim group as required by s 61(1) of the Act;

    there had been compliance with s 61(4) in relation to a clear description of the claim group;

    the application met the requirements of ss 190C(2), 190C(3), 190C(4)(b), 190C(5) and 190B(3).

6    In other respects, the delegate considered the application satisfied the registration test. In particular that:

    at least some of the applicants to the amended Kalamaia application and their predecessors had an association with the area for the purpose of s 190B(5)(a) of the Act;

    there existed traditional laws acknowledged by, and traditional customs observed by, the native title claim group giving rise to the claim to native title rights and interests for the purpose of s 190B(5)(b); and

    the native title claim group had continued to hold native title in accordance with traditional laws and customs for the purpose of s 190B(5)(c) of the Act.

7    Item 90 of the transitional provisions to the Native Title Amendment Act 2007 provided:

90    Transitionals-applications made before 1998 amendments

(1)    This item applies to a native title determination application made by a person or persons claiming to hold native title if:

(a)    the application was made before the day on which Schedule 2 to the Native Title Amendment Act 1998 commenced; and

(b)    either:

(i)    the claim was not considered by the Registrar under item 11 of Schedule 5 to that Act; or

(ii)    the claim was considered by the Registrar under that item but not accepted for registration; and

(c)    the claim is not one that, because it was amended on or after the day on which Schedule 2 to the Native Title Amendment Act 1998 commenced:

(i)    was considered under section 190A of the Native Title Act 1993; and

(ii)    is on the Register of Native Title Claims on the day on which this Schedule commences.

(2)    The Registrar must:

(a)    consider the claim under section 190A, or if the claim has already been considered under that section, reconsider the claim under that section; and

(b)    use his or her best endeavours to finish doing so by the end of one year after the commencing day.

If the Registrar does not do so by that time, the Registrar must consider, or reconsider, the claim under that section as soon as reasonably practicable afterwards.

…

8    The registration test was then triggered again. On 24 August 2007, a delegate again refused to accept the application for registration due to non-compliance with ss 61(1), 190B(3), 190B(5), 190B(6), 190B(7), 190C(2), 190C(3) and 190C(4).

9    On 7 October 2009, in Champion v State of Western Australia [2009] FCA 1141 (Champion 1) I determined a motion to amend the current application pursuant to s 64(1A) of the Act. In that decision, I concluded that the applicants were authorised to make the amendments sought to significantly reduce the area of the claim. Although there had been some delay in light of that decision, any question of a dismissal under s 190F(6) fell away. I also considered whether it was appropriate to defer consideration of the amendment pending a mediation between the Ngadju application (WAD 6020 of 1998) and the current application. I was not persuaded that to do so was appropriate in the absence of any demonstrated prejudice.

10    The matter proceeded to mediation within the National Native Title Tribunal (the Tribunal). The application was considered for registration once again on 11 December 2009 but, yet again, a delegate refused to accept the application for registration on the grounds that the requirements of s 190C(2) of the Act were not met as there was no compliance with s 61(1) and s 61(4) regarding the claim group description, there was no compliance with s 190C(3) and s 190C(4) regarding overlapping applications and authorisation and the application did not comply with s 190B(2) of the Act as no map was included with the application.

CONSIDERATION

11    The applicant has made submissions in opposition to any dismissal of the application under s 190F(6) of the Act.

12    As noted in George v Queensland [2008] FCA 1518 and also in Strickland, the question is whether there is a real chance not a mere possibility that an application will be amended in a way that would lead to a different outcome once considered by the Registrar.

13    In that regard, the applicant points to the fact that the principal reasons for the failure of the claim to meet the registration test relate to the claim group description. Relevantly, in the view of the various delegates, the claim group description on its face did not encompass the entire native title claim group in the sense discussed by O’Loughlin J in Risk v National Native Title Tribunal [2000] FCA 1589; the claim group description had members in common with the registered overlapping Ngadju claim; because the claim group description did not encompass the entire native title claim group, the claim had not been properly authorised; and because of the limitations of the claim group description, there was insufficient evidence to satisfy the delegate that the ‘claim group as a whole’ had sufficient connection with the claim area to satisfy the merits requirements of the registration test.

14    On the other hand, the applicant points out that on the one occasion in which there has been examination of the merits of the material, a delegate of the Registrar has concluded that there was evidence to establish the connection of the applicant to the claim area subject to resolution of the claim group definition.

15    For some time, the claim has been in mediation pursuant to s 86B of the Act together with the overlapping Ngadju claim. A mediation protocol has been agreed which sets out the terms for the engagement of a qualified senior anthropologist and to provide a report that addresses the issue that has proved fatal thus far to the registration of the existing claim. Attempts are under way to address the identity of the normative system under which the native title rights and interests are held and the protocol contemplates that the anthropologist will engage with other Kapurn people who assert native title rights and interests in the area. Steps would then be taken to advance the amendment of the claims in the area so as to include the whole of the native title holding group or relevant normative society. There is a real chance, the applicant argues, that the mediation will result in the reconfiguration by way of amendment to the existing claim so as to satisfy all the issues relating to claim group description on the current application thereby enabling it to pass the requirements of the registration test.

16    It is also argued that if I am not satisfied as to a real chance of the claim being amended so as to satisfy the registration test, there are other important discretionary considerations going to the ‘any other reason’ test in s 190F(6)(b) of the Act. It is argued that the referral to mediation under s 86B of the Act is still being pursued and it is submitted that it is unlikely that Parliament would have intended s 190F(6) of the Act to operate inconsistently with a procedure otherwise designed to achieve mediated outcomes. The applicant argues that it would not be in the interests of justice to dismiss the existing claim in circumstances where there is genuine uncertainty as to the group or society who hold native title rights and interests in respect of the overlap area and progress has been made with the assistance of the Tribunal in mediation under s 86B of the Act in respect of the current application to resolve that uncertainty.

CONCLUSION

17    I accept those submissions as to ‘any other reason’ for present purposes at least. However, progress in this application having been so slow, I am disinclined to dismiss the present s 190F(6) motion which has been instigated at the Court’s direction. Having regard to the assurances received and the fact that some progress is taking place, I will adjourn this motion for a period of eight months.

18    The Court’s own motion under s 190F(6) of the Act will be adjourned for eight months.

Associate:

Dated:    12 April 2011