FEDERAL COURT OF AUSTRALIA

Fazeldean on behalf of the Thalanyji People (No 2) v State of Western Australia [2012] FCA 1163

THE COURT ORDERS THAT:

1.    The application of the first respondent to dismiss the application under s 190F(6) of the Native Title Act 1993 (Cth) for abuse of process be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Application to DISMISS CLAIMANT application

1    On 6 May 2010 a native title determination application (claimant application) was filed in the WA District Registry of the Court by John Fazeldean, Brian Hayes, Albert Hayes, Rodney Hicks, Shirley Hayes and Anne Hayes (the applicants), on behalf of native title claimants identified as the descendants of the ancestors of Mick Fazeldean, Jack Hayes, Old Barn (Baron Tadpole) or Polly Hughes and who identify themselves as being people who can speak for the land and waters the subject of the application.

2    The claimant application is in the prescribed form 1 under the Native Title Act 1993 (Cth) (NTA) containing parts A and B. Part A contains schedules A-T. The information in these schedules sought to respond to the requirements of s 61 to s 62 of the NTA.

3    The boundaries identified in Sch B stated the area covered by the claimant application is shown as bordered in red in the map at Sch C marked “Attachment C” which comprises all that land and waters bounded by the following description:

The area of land and waters comprising claim WC99/45, excluding the area the subject of the Thalanyji Consent Determination of September 18 2008, and excluding the area of land the subject of the overlap with the PKKP claim and excluding the area the subject of the overlap with the Thudgari claim and excluding the area below the low water mark of the coastal sea.

4    The reference to “Thalanyji Consent Determination” of September 18, 2008 is a reference to the proceedings between Leslie Hayes, Glenys Hayes, Judy Hughes and others on behalf of the Thalanyji people and the State of Western Australia and others in WAD 6113 of 1998 in respect of which North J on 18 September 2008 at Onslow made an order in terms of a minute of proposed consent determination of native title dated 5 September 2008 between the parties: see Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487 (Thalanyji (No 1)).

5    The claim group on whose behalf the present proceedings are brought is accepted as being the same as that which has the benefit of the consent determination in Thalanyji (No 1).

6    As a result the present claimant application may be referred to as “Thalanyji (No 2)”.

7    As may be seen, the claimant application, Thalanyji (No 2), was lodged after the making of the consent determination in Thalanyji (No 1).

8    The State of Western Australia by interlocutory application filed 8 June 2012 seeks the following orders:

1.    The application be dismissed pursuant to s 190F(6) of the NTA on the basis that it is unregistered and that there is no reason why the application should not otherwise be dismissed;

2.    Alternatively, the application be dismissed pursuant to R 26.01(1)(d) of the Federal Court Rules 2011 (Cth) (Rules) on the grounds that it is an abuse of the process of the Court.

OBJECTIONS TO AFFIDAVIT

9    Before dealing with the two substantive issues raised by the State’s application, I should record my rulings on the objections to the affidavit of Ms Alicia Clare Warren filed by the State on 8 June 2010 which were taken by the applicants. The State’s application for dismissal under s 190F(6) of the NTA or for abuse of process is supported by the affidavit of Ms Warren. The affidavit purports to provide some background to the Thalanyji (No 1) consent determination, the current Thalanyji (No 2) application and, in the course of so doing, annexes a number of documents including the affidavit of Mr Gary Hamley, previously referred to, used in the initial Thalanyji application, the joint submissions, the Thalanyji (No 2) form 1 and accompanying affidavits, a transcript of preservation evidence from 14 September 2004, a letter dated 21 June 2010 from the State Solicitor’s Office (SSO) to the legal representatives of the Thalanyji (No 2) applicants, an email of 29 May 2012 from SSO to the legal representatives of the Thalanyji (No 2) applicants, an email dated 30 May 2012 from the legal representatives of the Thalanyji (No 2) applicants to SSO and a letter dated 31 May 2012 from SSO to the legal representatives of the Thalanyji (No 2) applicants.

10    In a proceeding of this kind, the primary documents referred to and attached to the affidavits of Ms Warren would appear to be unobjectionable and I receive them.

11    In broader terms, however, the Thalanyji (No 2) applicants object to the whole of Ms Warren’s affidavit or alternatively particular paragraphs. It is said, for example, that the entire affidavit refers to matters outside her personal knowledge, except where she discloses particular facts. A range of other paragraphs are objected to on the basis that they constitute a submission and not evidence or disclose Ms Warren’s state of mind and are irrelevant for that reason or otherwise constitute a submission.

12    On behalf of the State it is said that it is clear from [2] of Ms Warren’s affidavit that the information is within her personal knowledge and she identifies the source of the facts that are outside her knowledge. It is also said that it is not unreasonable for her to have regard to files and records maintained by the SSO in outlining the relevant facts. As to the objections on the ground of submission, the State says it is not clear what provisions of the Evidence Act 1995 (Cth) are said to have been offended, but some of those objections in any event relate to paragraphs where Ms Warren makes a reference to a statement of fact, for example, the date a claim was lodged with the National Native Title Tribunal. The State also accepts that in certain places Ms Warren’s affidavit does set out a state of mind or summarises an annexed document but submits that is a necessary result of R 26.01(2) of the Rules which require that where a party is seeking a summary judgment the application must be accompanied by an affidavit stating the grounds and the facts and the circumstances relied on and that this reasonably leads to the broader array of statements made.

13    In my view the objections taken to the affidavit largely fall away on closer analysis. The documents that have been produced and annexed to Ms Warren’s affidavit largely speak for themselves and are the subject of submission. To the extent that Ms Warren seeks to explain the relevance of the document or the part that it plays in the submissions being made on behalf of the State on either limb of the application, they are in my view perhaps unnecessary but do not create any particular prejudice or grounds for complaint.

14    To the extent that Ms Warren has sought to state what the position of the Thalanyji (No 2) applicants was at particular times, I would not regard the evidence or alternatively not give it any relevant weight.

15    In summary, however, the matters touched on or to which attention is directed by Ms Warren’s affidavit raise issues for the Court’s consideration but are not in any relevant respect determinative of them. What the State apparently considered to be the position at the time of or following the consent determination in Thalanyji (No 1) having regard to the materials produced is one thing, but it does not determine the proper construction of the order made by North J and the application now to be considered. I proceed generally on that basis.

ABUSE OF PROCESS GROUND

16    The consent determination in Thalanyji (No 1) was stated to be for the benefit of the Thalanyji people, who were described in the fourth schedule to the minute of proposed consent determination of native title as being persons who:

1.    are descended from Jack Hayes, Mick Fazeldean, Old Barn (Baron Tadpole) or Polly Hughes, or are adopted by such biological descendants in accordance with traditional laws acknowledged and the traditional customs observed by the Thalanyji;

2.    identify themselves as Thalanyji under traditional law and custom and are so identified by other native title holders as Thalanyji; and

3.    have a connection with the land and waters in the determination area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Thalanyji.

17    It may be seen the description of the claim group in Thalanyji (No 2) defines the native title holding group as persons descended from the same ancestors, Jack Hayes, Mick Fazeldean, Old Barn (Baron Tadpole) and Polly Hughes. The only difference in substance between the descriptions of the two groups is that in Thalanyji (No 2) the “Thalanyji” are not referred to by name in Sch A of the claimant application.

18    In the Thalanyji (No 1) consent determination, certain areas of land were excluded from the determination area, being:

1.    The land and waters of the Puutu Kunti Kurrama and Pinikura (No 2) application (WAD 126 of 2005) (PKKP # 2) which geographically overlapped the area of the Thalanyji application to the south-east.

2.    Land and waters seaward of the mean low water mark; and

3.    Certain land and waters in the north-eastern coastal component of the Thalanyji application east of the Onslow townsite and the Onslow Road.

19    As to the excluded area described in (3) of the preceding paragraph (the excluded area), the circumstances of the exclusion were referred to in the joint submissions of the applicant and the first respondent in support of the minute of proposed consent determination of native title (joint submissions) that were filed in the Court in Thalanyji (No 1) on 5 September 2008, where it was stated:

The parties have agreed that the ethnographic evidence does not presently support a determination that the entirety of the land the subject of the Thalanyji Application was traditionally Thalanyji country. Considered in its totality, the ethnography suggests that the northeastern coastal component of the Thalanyji Application was most likely the traditional territory of the Nhuwala people. Therefore, the State and the Applicants agree that the existence of native title rights and interests by the Thalanyji over this component of the Thalanyji Application cannot be recognised in the Minute.

However, the State and the Applicants acknowledge the possibility that there may exist surviving Nhuwala descendants who may, at some stage in the future, assert a relationship with this country. Consequently, the parties are not seeking a determination that no native title rights and interests exist in relation to this portion of the Excluded Area. Rather, the parties have consented to the dismissal of the Thalanyji Application over this area, leaving open the possibility for a potential new claim to be filed and argued on the basis of a continuing Nhuwala connection, should any Nhuwala people come forward in the future.

(Emphasis in original.)

20    It is largely against this background that on 6 May 2012 Thalanyji (No 2) was lodged by persons relying on the same claim group characteristics, and the same ancestors as the group who obtained the consent determination in Thalanyji (No 1). The State contends that Thalanyji (No 1), having been resolved by consent determination in respect of the land there described, where the land now the subject of Thalanyji (No 2) was expressly excluded from that consent determination, and where the Thalanyji (No 1) claim was otherwise dismissed, it is an abuse of process for the same claim group to now bring the Thalanyji (No 2) claimant application. As a consequence the State submits that judgment should be given against the applicants in Thalanyji (No 2) for abuse of process under R 26.01 of the Rules or pursuant to the implied incidental power to prevent abuse of its processes discussed in Dale v State of Western Australia [2011] FCAFC 26; (2011) 191 FCR 521 (Dale) at [112] (special leave application refused).

21    The State notes that there are many ways in which the processes of the Court may be abused. One form of abuse is to invoke the procedures of the Court to attempt to re-litigate controversies that have already been decided by the Court. The Court may be protected against such use of its procedures by the doctrines of res judicata and issue estoppel and their analogical extension to issues which ought reasonably to have been litigated in original proceedings, an enunciated in Port of Melbourne Authority v Anshun Proprietary Ltd (1981) 147 CLR 589 – the so called “Anshun estoppel”.

22    The State also notes that in Dale the Full Court held that an attempt by a native title claim group to prosecute a claim to a “Part B” area, in circumstances where the Court had made the finding in the earlier “Part A” proceeding that the relevant native title group was not a group capable of holding native title, was an abuse of process.

23    The State further points out that although it was not known to it at the time, it is now apparent that the present Thalanyji (No 2) claimant application was agreed upon and authorised by the claim group at a meeting on 17 September 2008, the day before the making of the consent determination in Thalanyji (No 1). All of the people providing affidavits indicating their involvement at the 17 September 2008 meeting and the decision to file the Thalanyji (No 2) application were Thalanyji people on whose behalf the Thalanyji (No 1) application was brought and a consent determination made. The State says the native title claim in Thalanyji (No 2) is inconsistent with the submissions made by the Thalanyji applicants to North J the following day in the joint submissions.

24    The State submits that the question of whether or not the Thalanyji people hold native title rights and interests in the Thalanyji (No 2) claim area was resolved by the consent determination in Thalanyji (No 1). The dismissal of the Thalanyji (No 1) application over the relevant excluded area and the reasons given by the Court for that dismissal were intended to, and did, dispose of the issue.

25    The State submits it is an abuse of the Court’s process for the Thalanyji (No 2) applicants to seek to re-litigate the issue of whether the Thalanyji people hold native title over the area the subject of the Thalanyji (No 2) application. The State submits that the circumstances may be sufficient to found an issue estoppel but it is not necessary for all elements of that doctrine to be established for the Court to dismiss the Thalanyji (No 2) application on abuse of process grounds.

26    Alternatively, the State submits that if the Court were to find that the consent determination did not dispose of the question of whether or not the Thalanyji people hold native title rights and interests in the Thalanyji (No 2) claim area, the proceeding before North J on the making of the consent determination was nevertheless the opportunity for the Thalanyji people to seek a determination in their favour over that area, a course that they did not pursue in that proceeding. It is now not open to them to come forward and pursue a native title claim over the excluded area in the Thalanyji (No 2) application. The State submits that although the circumstances may be sufficient to found an Anshun estoppel, it is not necessary for all elements of that doctrine to be established to obtain an order to dismiss the Thalanyji (No 2) application on abuse of process grounds.

27    The State submits that a strong public interest in efficiency, finality and integrity of judicial decision-making, which underlies the doctrine of abuse of process by attempted re-litigation has been frequently confirmed by the authorities, including the account of the law provided by French J (as his Honour then was) in Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 6) [2004] FCA 1699 relied on in Dale.

28    The applicants, however, submit that the type of abuse of process identified in Dale does not assist in this case as that was an instance of an attempt by a claim group to re-litigate an issue determined against it in an earlier proceeding. In this case, by contrast, no finding or determination was made in the proceeding before North J as to the existence of native title in the Thalanyji (No 2) claim area.

29    The applicants submit that it is important to appreciate that the determination in Thalanyji (No 1) was made following the conclusion of negotiations primarily between the applicant group and the State as to the terms of an agreement under s 87 of the NTA where it is said that in November 2006, after assessing the Thalanyji connection material, the State made an offer to enter into negotiations towards a consent determination with the applicants.

30    It is said the offer was made on the basis that the State’s view that the evidence received from the applicant did not support the recognition of native title over the land that is now the Thalanyji (No 2) claim area, which the State considered was traditional Nhuwala country. The State’s view was that the connection materials did not support the claim group’s case for inter-group succession (as it is put in the written submissions of the claim group) to the traditional land of the Nhuwala people within the Thalanyji (No 2) claim area.

31    The applicants submit that the State also said at that time that it was:

of the view that the issue is one of such complexity that it is unlikely to be resolved in the immediate future. Accordingly, the State’s proposal to draw back the Thalanyji boundary to exclude the area which the ethnography would support as being traditional Nhuwala territory allows for the resolution of the Thalanyji component of the claim and does not preclude future resolution of the traditional Nhuwala territory.

(Emphasis in original.)

32    Accordingly, it is submitted that the State’s proposal to draw back the Thalanyji (No 1) boundary was based in part on expediency in order to resolve as much of the Thalanyji (No 1) claim as was possible at that time. While the State was not persuaded on the connection materials then available, it did not rule out the existence of interests in the excluded area.

33    On behalf of the applicants it is further submitted that the State then said that its offer was “final” and that the :

State is not seeking additional material to attempt to resolve the components of the claim which have not been satisfactorily addressed to date

(Emphasis in original).

34    The applicants say that the State’s offer to consent to a determination on the terms proposed was expressed as a “take it or leave it” offer in relation to resolution of the Thalanyji (No 1) claim area on the basis that the resolution of the Thalanyji (No 2) claim area could not be resolved at that time, which offer was accepted.

35    They also say the parties’ agreement in this regard was reflected in [17c] of the joint submissions where it was stated:

The parties have agreed that the ethnographic evidence does not presently support a determination that the entirety of the land the subject of the Thalanyji Application was traditionally Thalanyji country. Considered in its totality, the ethnography suggests that the northeastern coastal component of the Thalanyji Application was most likely the traditional territory of the Nhuwala people. Therefore, the State and the Applicants agree that the existence of native title rights and interests by the Thalanyji over this component of the Thalanyji Application cannot be recognised in the Minute.

However, the State and the Applicants acknowledge the possibility that there may exist surviving Nhuwala descendants who may, at some stage in the future, assert a relationship with this country. Consequently, the parties are not seeking a determination that no native title rights and interests exist in relation to this portion of the Excluded Area. Rather, the parties have consented to the dismissal of the Thalanyji Application over this area, leaving open the possibility for a potential new claim to be filed and argued on the basis of the continuing Nhuwala connection, should any Nhuwala people come forward in the future.

(Emphasis in original.)

36    The applicants emphasise the joint submissions that the ethnographic evidence did not then “presently” support a determination in the excluded area and that the area was most likely traditional Nhuwala territory but that Thalanyji interests in that area could not be ruled out.

37    The applicants now say in respect of Thalanyji (No 2) that Mr Stephen Johnson, part of the anthropological team they have recently engaged, based on field work and research to date, considers it most likely that the Thalanyji (No 2) claim area is and always was Thalanyji territory and not traditional Nhuwala country.

38    The applicants note that in [11](c) of the reasons of North J for the making of the consent determination in Thalanyji (No 1), his Honour, drawing on the joint submissions, notes that whilst the ethnographic evidence “does not presently support the view that this area was traditional Thalanyji country”, the parties have not sought a determination that native title does not exist in that area and that the area was “most likely traditional Nhuwala country and there may be surviving Nhuwala descendants who may in the future wish to assert a relationship with that country”.

39    On behalf of the applicants it is submitted that the Thalanyji people have never conceded that the Thalanyji (No 2) claim area is not Thalanyji country and that the evidence of the authorisation for the making of the Thalanyji (No 2) claim on the day before the making of the consent determination in Thalanyji (No 1) is evidence to that effect.

40    In my view, this is not a case where one can conclude with sufficient confidence that the formal dismissal of the balance of the Thalanyji (No 1) proceeding as part of the consent determination of part of the original claim area had the legal effect of shutting out the possibility in the future of the Thalanyji people making a native title claim in respect of the excluded area. I accept that when one focuses on certain aspects of the background research and the communications between the parties, and what was said in the joint submissions, there are reasonable grounds for thinking that at material times when the consent determination was made, the State was entitled to consider that the Thalanyji people were abandoning their right to pursue any further native title claims over the excluded area.

41    At the same time, to finally rule that a doctrine of res judicata or issue estoppel applies on these facts is a difficult judgment call to make. There was no contested hearing before North J concerning the excluded area. Instead what one has is the settlement of a proceeding, reflected in a consent determination, where the parties have negotiated for a particular outcome and the balance of the proceeding was dismissed, with indications that native title in the excluded area may be in another named group. The joint submissions advert to the ethnography that lay behind the agreement they had come to and which was acted upon by North J in making the consent determination. That information and the joint submission and the material of Mr Hamley for the State that was provided to the Court provided evidentiary material to the Court that enabled it to conclude that it was appropriate to make the orders.

42    There had also been evidence taken in proceedings before the trial which was available to the Court. Justice North averted to the ethnographic material available in the submissions of the parties. At [29], North J noted that in a case such as that before him where parties seek orders under s 87 as the result of agreements reached after extensive negotiations “the Court is not privy to the basis on which agreement is reached”. He noted that negotiations are often confidential but in the present case the Fletcher document gave some insight into the approach taken by the State as to the information in its hands.

43    In all of the circumstances it is reasonable to say that North J did not make any ruling on the question of the existence of native title over the lands that were excluded in Thalanyji (No 1) and are now the subject of claim in Thalanyji (No 2). In these circumstances it is not possible, in my view, reasonably to conclude that the dismissal order has the effect that the native title claim in Thalanyji (No 2) cannot now be entertained in respect of the excluded area on the grounds of res judicata or issue estoppel. Nor in my view is it appropriate to say that an Anshun estoppel arises. Again, this is not the case of a determination following a trial where it might be said of a party that if it had wished to run another issue it should have done so at that time. Here instead there is a negotiated outcome where, for reasons expressed at the time, the applicant group accepted an offer made by the State to receive a consent determination of native title in certain lands claimed but not all of them.

44    Additionally, I think for those reasons it cannot be said that the broader basis upon which an abuse of process might be identified, as discussed in Dale applies. While it might be said, as the State does, that it seems a little strange that without the State being aware of it the same claim group that accepted the consent determination on 18 September 2008, should have authorised a further claim to be made in respect of the area to be excluded in the consent determination the day before, in the end I do not consider that there is anything that discloses bad faith or the like that should, taking all of the circumstances into account, be considered to amount to an abuse of process that should lead to the dismissal of the Thalanyji (No 2) claimant application.

45    I am left in sufficient doubt as to just what the ethnographic position was and what the state of the native title claim group collective view was at material times to rule that it and the Court proceeded on the basis that it could never claim the excluded area that is now the subject of Thalanyji (No 2). This is, as I noted above, a difficult judgment call, but that is the position I have ultimately arrived at. In my view, if the parties had come to a clear agreement that the terms of the consent determination, including the dismissal of the balance of the Thalanyji (No 1) claim, was intended to completely shut out the same claim group from ever proceeding with a subsequent claim in respect of the area excluded from the consent determination, then it should have been clearly spelled out. In my view, it was not.

46    In those circumstances, I am not prepared to find on these facts that the application should be dismissed for abuse of process.

Section 190F(6) GROUND

47    When the Thalanyji (No 2) claimant application was lodged for registration under the NTA, it failed the so called “registration test”. On 20 August 2010, a delegate of the Registrar determined that the claim should not be accepted for registration pursuant to s 190A of the NTA on the basis that it did not meet the following conditions specified in the NTA:

    Section 190B(2) – Identification of area subject to native title;

    Section 190B(5) – Factual basis for claimed native title;

    Section 190B(6) – Prima facie case;

    Section 190B(7) – Physical connection; and

    Section 190C(4) – Identity of claimed native title holders.

48    There is no evidence the applicants sought reconsideration of the decision of the delegate and I proceed on the basis it did not. Nor did they apply to this Court for a review of the decision taken by the delegate of the Native Title Registrar as they could have pursuant to s 190F(1) of the NTA.

49    At a regional directions hearing in the Court on 22 June 2010, the then counsel instructed by the then solicitors for the Thalanyji (No 2) applicants indicated that the application was to be amended to attempt to pass the registration test.

50    At a further regional directions hearing on 11 April 2011, counsel advised that the Thalanyji (No 2) applicants were then conducting anthropological research in an attempt to satisfy the State’s connection guidelines, even though counsel for the State advised that it was not proposing to mediate the claim, nor accept any connection material with it, and indeed the State would not look at any claim over the area which was brought on the same basis as the earlier Thalanyji (No 1) proceeding.

51    At a further regional directions hearing on 19 December 2011, counsel for the Thalanyji (No 2) applicants indicated that the connection material would be provided in any event to the State in May 2012.

52    In late April 2012, the Thalanyji (No 2) applicants changed legal representation. At that point the solicitors now on the record for the claim group indicated that the Thalanyji (No 2) applicants had just engaged an anthropologist.

53    In subsequent proceedings before me the question of the steps being taken on behalf of the applicants to conduct further anthropological or ethnographic research was outlined.

54    Section 190F of the NTA enables review by this Court where a native title determination application has failed the registration test or otherwise has not been registered. By s 190F(1) an unsuccessful applicant for registration may apply to the Court for review. Where there has been no application for review or the Court does not make an order under subsection (4) on review, then subsection (5) applies. Section 190F(5) provides as follows:

(5)    Subsection (6) applies in a case where:

(a)    the Registrar does not accept the claim for registration either because, in the opinion of the Registrar or, if the claim is reconsidered under section 190E, of the member of the NNTT reconsidering the claim:

(i)    it does not satisfy all of the conditions in section 190B; or

(ii)    it is not possible to determine whether all of the conditions in section 190B have been satisfied because of a failure to satisfy section 190C; and

(b)    the Court is satisfied that the avenues for:

(i)    the reconsideration under section 190E of the Registrar’s decision; and

(ii)    the review under this section of the Registrar’s decision; and

(iii)    the review of orders made in the determination of an application under this section; and

(iv)    the review of the Registrar’s decision under any other law;

have all been exhausted without the registration of the claim.

55    Section 190F(6) then provides as follows:

(6)    The Court may, either on the application of a party or on its own motion, dismiss the application in which the claim was made (the application in issue) if:

(a)    the Court is satisfied that the application in issue has not been amended since consideration by 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.

(Emphasis in original.)

56    Section 190F(6) therefore comes into play either through the satisfaction of subs (5) or independently. In the present case it is the State which has applied for the Court to dismiss the application and the Court has the power to do so if the conditions specified in subs (6)(a) and (b) are satisfied. The consideration in (b), reliant as it is on the “opinion of the Court” effectively confirms that the Court’s power to dismiss or to not dismiss an application is broad and that a wide range of reasons might be considered when forming an opinion that the application in issue should not be dismissed.

57    In a case such as the present therefore, the starting point is s 190F(6)(a) and whether the Court is satisfied that the application in issue has not been amended since consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar.

58    As noted above, there is no evidence that the application in issue has been amended since consideration by the delegate of the Registrar.

59    Thus the next consideration is whether the application in issue is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar.

60    In Christine George & Ors on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518, Logan J considered the meaning of the word “likely” in this s 190F(6) context. His Honour noted authority in other statutory contexts which suggested that the word “likely” can mean “more probable than not” or “some possibility, more than a remote or bare chance”. At [45], his Honour considered the occasion for affording the word “likely” the meaning “more probable than not” in a provision directed to the dismissal of a native title application without a hearing on the merits of that application was less compelling. His Honour then regarded secondary material and legislative history. He remained disinclined to construe the word “likely” as meaning “more likely than not”. His Honour, with respect, appropriately noted that the word appears in a composite phrase: “is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar”. His Honour noted that this “unusually requires the making of a predictive assessment by the Court not just of the prospect of amendment of the application but of the outcome of fresh consideration of the amended application by an administrative official”. His Honour ultimately concluded that the meaning of “likely” which should be preferred is what would “reasonably be regarded as a real chance irrespective of whether that chance is greater than 50 per cent, as opposed to nothing more than a mere possibility”.

61    Justice Logan, at [52], then observed that, in adopting this meaning, an understanding of the basis upon which either before the Registrar or on later review, it was considered that the conditions in s 190B of the NTA were not met is relevant to the making of a prediction of the fate or reconsideration of an amended application, but otherwise the inability of the application to meet those conditions is a given. His Honour expressly rejected a submission that the jurisprudence in relation to a strike out under s 84C is relevant to whether or not to dismiss an application under s 190F(6).

62    The approach adopted by Logan J is, I consider, generally appropriate. There is nothing in the particular context, as carefully analysed by Logan J, to suggest that the word “likely” in this context means a “mere possibility” that that amendment will lead to registration. Something more exacting than a mere possibility is required. That does not mean however, as Logan J stated, that it must be established that registration following amendment is more probable than not: the Court needs to be reasonably satisfied that there is something in the nature of a “real chance”, as Logan J put it, that registration following amendment will occur. What is clear is that a mere possibility is not enough.

63    I also agree that it is necessary for the Court to make the evaluative and predictive assessment identified by Logan J. To do this one must have regard to the reasons why the registration of the application has been refused by or on behalf of the Registrar and then to consider how the amendment in the way proposed is likely to lead to a different outcome upon reconsideration.

64    In this regard it is important to note that the question for the Court to consider is not whether the registration is “likely” but whether or not the application is “not likely to be amended in a way that would lead to a different outcome once considered” by the Registrar. In this regard, in my view, while it may be considered relevant and often very important for the native title claimant faced with a s 190F(6) dismissal application to show the Court a proposed amended native title determination application or a draft of it to illustrate that amendment is likely to occur in a way that would lead to a different outcome, this is not to say that other material might not be referred to in satisfying the Court that the application is likely to be amended in a way that would lead to a different outcome. For example, in this case, the native title claimant refers to affidavit material of an anthropologist who has conducted some preliminary research in relation to the claim as well as affidavit material filed on behalf of some of the third named claimants. Some or all of that is referred to in a draft amended native title determination application attached to the affidavit of Mr Morris Milder, filed 4 October 2012.

65    On the affidavit material before me I have little doubt that the native title determination application is likely to be amended and that it is likely to be amended in ways that reflect the preliminary anthropological research recently conducted by Mr Johnson and other information set out in the affidavit of the named claimants and in Mr Milder’s affidavits. The question is whether amendments to reflect that information are likely to lead to a different outcome once considered by the Registrar or delegate.

66    I should add that while the Court might consider the anthropological or ethnographic research material now put forward by or on behalf of the claim group, the Court should not speculate about other information that might be put forward. Thus it would not be open, in my view, for the Court to adopt a very broad proposition put on behalf of counsel for the applicants, that the Court should anticipate that additional information will be provided to the Registrar or delegate upon issues being raised by the Registrar or delegate after further consideration of an amended application. It is one thing for the Court to accept that further questions might be directed to the applicants by the Registrar or delegate upon further consideration of an amended application, but it is another to speculate about what that might be and to further speculate that the Registrar or delegate would be satisfied that registration is appropriate in light of such further material. The point is an obvious one: the claim group at this point is aware of the reasons why the application initially failed the registration test. Thus the claim group knows what sort of material it needs to put up to overcome the deficiencies earlier identified. If the applicants have information relating to those matters, then it no doubt should put that information forward at this point. In the absence of any evidence about those matters, or evidence pointing to those matters which suggest that there are indeed other items of information that might reasonably be put forward, then the Court simply would be speculating. There is a practical onus on the claim group therefore to put forward all relevant material at this point that it says would be reflected in an amended application, which amended application, in their view, would lead to a different outcome than occurred before.

67    I turn then to the document called the draft amended application form 1 attached to the affidavit of the claim group solicitor, Mr Milder, filed 4 October 2012 in order to understand and evaluate the changes currently proposed to enable registration. The first issue relates to s 190B(2) – identification of the area subject to native title. The claim group propose that Sch B, Att B and Att  C be amended or replaced to rectify the discrepancy noted by the Registrar concerning the eastern boundary of the claimed area. In light of the information supplied in Mr Milder’s affidavit, I expect there is likely – much more than a mere possibility – that the outcome of the registration process on this issue will be different if that amendment to the application is made.

68    The second issue relates to s 190B(5) – factual basis for claimed native title. Mr Milder says that Sch F and Sch G would be amended in the manner proposed in the draft application attached to his affidavit filed 4 October 2012. Section 190B(5) provides that:

(5)    The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:

(a)    that the native title claim group have, and the predecessors of those persons had, an association with the area; and

(b)    that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and

(c)    that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.

69    As may be seen, there are three aspects to this condition:

    that the claim group and their predecessors had an “association” with the area claimed;

    that the claim group acknowledge traditional laws and observe traditional customs that give rise to the claimed native title rights and interests;

    that the claim group has continued to hold native title in accordance with those traditional laws and customs.

70    In Gudjala People #2 v Native Title Registrar [2008] FCAFC 157; (2008) 171 FCR 317 (Gudjala People #2), at [92], the Full Court (French, Moore and Lindgren JJ) considered an appeal against the decision of the primary judge not to uphold a review of the decision of the Registrar that the native title determination application failed the registration test because it did not meet the requirements of s 62(2)(e), namely, that the application provide details which constitute a general description of the factual basis on which it is asserted that the native title rights and interest claimed existed and, in particular, the matters referred to in s 62(2)(e)(i), (ii) and (iii). The Court noted that those details are in aid of the description, with some particularity, required by s 62(2)(d) of the asserted native title rights and interests. The Court further considered the fact that the detail specified by s 62(2)(e) is described as “a general description of the factual basis” is an important indicator of the nature and quality of the information required by s 62. The Court stated:

In other words, it is only necessary for an applicant to get a general description of the factual basis of the claim and to provide evidence in the affidavit that the applicant believes the statements in that general description are true. Of course, the general description must be in sufficient detail to enable a genuine assessment of the application by the Registrar under s 190A and related sections, and be something more than assertions at a higher level of generality. But what the applicant is not required to do is to provide anything more than a general description of the factual basis on which the application is based. In particular, the applicant is not required to provide evidence of the type which, if furnished in subsequent proceedings, would be required to prove all matters needed to make out the claim. The applicant is not required to provide evidence that proves directly or by inference the facts necessary to establish the claim.

71    In this particular case, the Thalanyji (No 2) application in a number of respects would appear to rely upon the Thalanyji (No 1) determination as a foundation. For example, the claim group is the same in each case and regard may be had to the means by which membership is established – having regard to named ancestors.

72    In other respects, the information concerning the general description of the native title rights and interests claimed and, in particular, the factual basis to which Sch F of the application as originally lodged and which registration was refused, were at the “high level of generality” of which the Full Court in Gudjala People #2 indicated was not sufficient to meet the requirements of the NTA.

73    The application as it would be amended in the form attached to the affidavit of Mr Milder filed 4 October 2012 seeks to provide much greater factual particularisation of the general description and the factual basis of the asserted rights and interests. The position identified by the draft amended application is further supported by an affidavit of Mr Brian Hayes, filed 5 October 2012 and an affidavit of Ms Shirley Hayes filed 3 September 2012. Mr Hayes refers to the following matters:

    To the best of his knowledge, information and belief, in the early 1970s Mick Fazeldean (the Maatha) (boss) for the Thalanyji (No 2) claim area, gave approval for the conduct of an annual law camp on the banks of the Cane River approximately 25 kilometres east of Onslow, involving the Thalanyji people and other Aboriginal groups in the Pilbara and Kimberley region.

    The law camp is run each year around Christmas and involves the Thalanyji people as well as other Aboriginal groups in the Pilbara and Kimberley region.

    The main purpose is the initiation of young Aboriginal men.

    He has attended the law camp to support his sisters Shirley and Anne Hayes who are Thalanyji people, whilst they attended the law camp (for several months at a time) for the initiation of their sons and nephews.

    One of the other traditional activities undertaken by attendees during the time of the law camp is hunting and fishing, which often takes place on the Thalanyji (No 2) claim area.

74    Ms Shirley Hayes in her affidavit, amongst other things, says that in addition to a number of elders (whose ages range from in their 70s to in their 90s) there are a number of other Thalanyji people who speak for areas of cultural and historical concern within the Thalanyji (No 2) area, including herself.

75    The applicants’ position is also supported by the affidavit of Mr Johnson filed 4 September 2012, a consultant anthropologist employed by the School of Social Science at the University of Queensland. Mr Johnson indicates that from October 2011 he has conducted research, fieldwork and other steps in relation to the preparation of a connection report that UniQuest Pty Ltd has been engaged to produce by Desert Management Pty Ltd on behalf of the Buurabalayji Thalanyji Association Inc. The contract to produce this work includes not only him but also Professor David Trigger and Dr Andrew Sneddon.

76    Mr Johnson says he has conducted the following work:

    In October 2011 an initial overview of general literature and preliminary contact with the claimants and the making of requests for previous research.

    In November 2011 further requests for previous research.

    In December 2011 he received a limited number of essential documents and made further requests for other essential documents and then commenced background research.

    In March 2012 the first period of fieldwork was completed, with eight interviews with 10 (primarily senior) Thalanyji people. Due to cyclonic concerns on country trips were cancelled and other fieldwork was cancelled due to the wet season and law business.

    In April to June 2012 he conducted ongoing genealogical and ethnographic research and drafting of the connection report.

    In July 2012 he conducted ongoing genealogical and ethnographic research and drafting of the connection report and reviewed and considered a variety of documents, materials and matters referred to in paras 5(a)–(e) and 6(a), (c) and (d) of the affidavit of Mr Hamley, sworn 5 September 2008 but not provided to him until 6 August 2012.

    He considered the decision in the Thalanyji People (No 1) consent determination.

77    Mr Johnson says he anticipates the first draft connection report will be available for the review of the applicants and their legal advisors in or about November 2012.

78    Mr Johnson makes reference to observation in [11](c) of the reasons of North J in Thalanyji (No 1) that the excluded area was “most likely traditional Nhuwala country”. He says that he now considers based on his fieldwork and research to date that “it is most likely that Thalanyji (No 2) claim area is and always has been traditional Thalanyji country, and that that area is not traditional Nhuwala country”.

79    Mr Johnson says this opinion is based on the following factors in combination (which may be summarised as follows):

    There is support in the written ethnographic and historical record for the location of Nhuwala country somewhere well to the northeast of the Cane River (he refers to Radcliffe-Brown, Von Brandenstein and Tindale research of 1913, 1967 and 1974 respectively). However, he acknowledges that because of ambiguity in the ethnographic and historical record it is not in his opinion possible to define with certainty the location or boundaries of the Nhuwala and Thalanyji country (pre or post sovereignty) by sole reference to the ethnographic record. He expresses the view, however, that despite the ambiguity, the ethnographic and historical record generally points to Thalanyji rights and interests in and around the Ashburton River, the township of Onslow and north towards the Cane River, with Nhuwala located somewhere further to the northeast.

    Statements made by senior Thalanyji claimants (Les and Albert Hayes, Valerie Ashburton, Laura Hicks, Judy Hughes and Glenys Hayes) who are adamant that the Thalanyji (No 2) claim area always has been Thalanyji country, with Nhuwala on the other side of the river.

    Statements were made to him by Thalanyji claimants (Les, Albert and Glenys Hayes, Valerie Ashburton, Laura Hicks and Judy Hughes) which demonstrate a close affinity for, physical association with and detailed knowledge (geographical and cultural) of the Thalanyji (No 2) claim area. He says the familiarity was expressed to him principally in terms of Thalu sites (being traditional focal places with associated narrative) and Marbarn (special powers derived from spirits in country). He also says the term Maatha (bosses) was also used to refer to certain individuals and groups with particular authority over and knowledge of such places and powers on and in respect of the Thalanyji (No 2) claim area.

    There are a number of significant Thalanyji sites and associated narratives within the Thalanyji (No 2) claim area, being an artefact scatter and mythological site of great significance identified by Mr Albert Hayes in the vicinity of Mt Minnie (in the south-eastern portion of Thalanyji (No 2) claim area near Onslow Road and the Northwest Coastal Highway), and that Mr Albert Hayes indicated his father had told him the story for that clay pan area and that the site can also be a “dangerous place” and that Mr Albert Hayes described to him the site as a stopover for the old people in their “astral travels” and a similar story forms a link with most if not all sites in Thalanyji mythology and is a recurrent theme in Thalanyji tradition. Also, Ms Glenys Hayes has told him that an important women’s site (most likely a Thalu or increase site) is located somewhere in the centre of the Thalanyji (No 2) claim but he has been unable to obtain further details at this stage due to age and gender restrictions. He has been further advised by Ms Glenys Hayes that Mr Brian Hayes has told her that the coastal fringe from Onslow northeast to the Cane River is littered with sites of special significance, which may from what he has described be Thalu or Songline waypoints. Messrs Albert and Les Hayes have told him of the location of another significant mythological site in the north, central portion of the Thalanyji (No 2) claim area about which he is obtaining further detail. Ms Glenys Hayes has told him that a number of significant Thalanyji sites are also located on the western bank of the Cane River within the Thalanyji (No 2) claim area but no information has been forthcoming at this stage. Several site surveys have also been undertaken in company with Thalanyji claimants in the Thalanyji (No 2) claim area and substantial evidence of long-term use and occupation has been previously identified by earlier research.

    Messrs Les, Albert and Ms Glenys Hayes say that there were important differences between Thalanyji and Nhuwala although they were “close up” and that other Aboriginal groups did not dispute Thalanyji territorial claims and that a senior law man (Mr Algie Patterson) validated Thalanyji territorial claims at a public meeting in Onslow in 1986.

    Evidence of intra-group (i.e. Thalanyji only) succession to the Thalanyji (No 2) claim area that took place in Onslow in 1986, which is referred to in an account given to the State representatives in 2006.

    His field research supports the existence and application of the traditional laws and customs identified in the ethnographic and historical material with respect to the Thalanyji (No 1) claim.

    Mr Johnson also confirms that in his view the claim group description in Sch A of the Thalanyji (No 2) application accurately describes those who may hold native title rights and interests in the Thalanyji (No 2) claim area.

    As in the case of the affidavit of Ms Shirley Hayes, Mr Johnson confirms there are five senior Thalanyji people who are elders who possess the most substantial knowledge of Thalanyji traditional laws and customs, and in addition there are other Thalanyji people who speak for areas of cultural and historical concern within the Thalanyji (No 2) area.

80    The research and information assembled by Mr Johnson to date is in substance reflected in the draft amended application attached to Mr Milder’s affidavit filed 4 October 2012.

81    The native title rights and interests claimed are described in Sch E to the draft application. They are unamended from the application originally lodged. They include a range of usufructuary rights such as travelling over land, hunting, fishing and gathering, as well as ceremonial rights and the right to care for the land. They are plainly recognisable, having regard to native title jurisprudence, as possible native title rights and interests. Schedule F would now be amended to add precise examples of traditional activities supporting such rights of some members of the claim group as well as their ancestors/predecessors in the area. These have the capacity to show that the claim group and their predecessors had an “association” with the area.

82    As to whether the additional information in Sch F and Sch G provide the factual basis for traditional laws and customs acknowledged and observed and the maintenance of connection by those traditional laws and customs, the amendments to Sch F and Sch G proposed refer to the following:

    Schedule F(c) – rules governing the approach to dangerous places by reason of the water serpent in the case of sites associated with water;

    Schedule F(d) – traditional laws, legends or stories, coming from the dreamtime, including the water serpent, the observance of correct protocols and the effect of strangers to the country. In particular, reference is made to Boogarda, a mythical creature from the creation period, being little people who act as custodians for country being present around Peedamulla, an area south of the Cane River;

    Schedule F(f) – reference to Fazeldean country. This also includes a reference to intra-group succession;

    Schedule F(h) – reference to men’s business and important sites in the area of Thalanyji (No 2);

    Schedule F(j) – reference to burial grounds treated with respect and concern by the claim group;

    Schedule F(k) – reference to knowledge about Mt Minnie, a site of particular significance.

83    All of these additional factors may lend a factual basis if not for all then for some of the claimed native title rights, showing not only an association with the area but that there would appear to be traditional laws and customs that have been observed by predecessors and that the claim group continue to honour currently. It is difficult to make the predictive assessment whether the additional information supplied will bring about the registration of the application and it is also difficult to say that there is a likelihood that is greater than 50 per cent of that happening. It is enough however to say that, in my view, there is a chance which is much more than a mere possibility, which may be called real, that a different outcome will arise from the amendments that are likely in respect of the condition specified in s 190B(5).

84    The third issues relates to s 190B(6) – prima facie case. Section 190B(6) provides as follows:

(6)      The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.

85    In light of the proposed amendments to Sch F, discussed above, which are imported to Sch G by the proposed amendment to Sch G, there is a chance that the amendments proposed to the application will cause the Registrar to consider that prima facie at least some of the native title rights and interests claimed in the application can be established. The particular activities identified, including following the correct protocol when approaching country and dealing with strangers, the hunting and fishing example provided in respect of Ms Carolyn Fazeldean, the reference to camping in (d) of Sch F and the references to men’s law in (g) and (h) of Sch F and the other references to the country and the various amendments capable of supporting a number of the claimed rights and interests under native title. I consider the chance that the Registrar might consider that the condition is made out prima facie is more than a mere possibility and may be considered “real”.

86    The fourth issue relates to s 190B(7) - physical connection. Section 190B(7) provides as follows:

(7)    The Registrar must be satisfied that at least one member of the native title claim group:

(a)    currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or

(b)    previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by:

(i)    the Crown in any capacity; or

(ii)    a statutory authority of the Crown in any capacity; or

(iii)    any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease.

87    The claim group rely upon the proposed amendments to Sch M to satisfy the Registrar that at least one member currently has, or previously had, a traditional physical connection with any part of the land or waters covered by the application. In this regard, Albert Hayes, Les Hayes, R Campbell (deceased), Laura Hicks, Valerie Ashburton and Judy Hughes are all mentioned, as well as Shirley, Anne and Brian Hayes and the Hicks family. David and M Campbell (deceased) and Lennie Ashburton are also mentioned as regularly traversing the claim area to camp, fish and hunt and sometimes to attend initiation rituals. It is also said the immediate family of Shirley Hayes in particular has maintained a close and intimate physical connection with the claim area, frequently visiting country and tending to sites there. In view of the proposed amendment to Sch M, I am satisfied there is more than a mere possibility, something in the nature of a “real” chance that the condition of s 190B(7) can be satisfied.

88    The fifth and final issue relates to s 190C(4) – identity of claimed native title holders. Section 190C(4) provides as follows:

(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;

    Note: An application can be certified under section 203BE, or may have been certified under the former paragraph 202(4)(d). A representative Aboriginal/Torres Straight Islander body may certify the application, even if it is only the representative body for part of the area claimed.

(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.

    Note: The word authorise is defined in section 251B.

(Emphasis in original.)

89    In this case the claim group seeks to satisfy para (b), namely that the named applicants are members of the claim group and are authorised to make the application and deal with matters arising in relation to it by the other persons in the claim group. In this regard it is said that amendments will be made to Sch R(2) to reflect the authorisation process. In this regard, it is proposed that there be an authorisation meeting before the amended application is lodged for further consideration. In his affidavit filed 3 September 2012 the solicitor for the claim group, Mr Milder, says that he has been instructed to convene and facilitate an authorisation meeting by the end of November 2012 and to submit the amended application thereafter. He says he has been instructed that the decision as to authorisation will be made by Thalanyji elders and to ensure the meeting is convened in such a way as to give all members of the claim group a reasonable opportunity to attend the authorisation meeting.

90    While this authorisation meeting has not yet occurred, I am satisfied that there is a real chance that the authorisation meeting will occur and that there is a real chance that the outcome of the registration test, on this issue, would be different if Sch R is amended in the way anticipated.

91    In all of these circumstances, while these likely amendments to the claimant application have been a long time coming and while some of the amendments proposed – for example, in relation to authorisation – are yet to be finally stated, I am satisfied that the relevant likely amendments are sufficiently articulated in all cases and that, while it might be said that the material to be put forward in the amended application is relatively sparse, it is sufficient to form the view that there is a chance more than a mere possibility, that might be described as a real chance that it will lead to a different outcome when the registration test is applied.

92    Whether or not the Registrar or delegate will find that the application as amended satisfies the registration test is of course another matter. All that the Court has determined here is that it is not satisfied that the application in issue is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar. It remains for the Registrar to consider the amended application.

93    The next consideration is that arising under s 190F(6)(b), namely that “in the opinion of the Court, there is no other reason why the application in issue should not be dismissed”.

94     This is a case where the applicants have been tardy, to say the least, in advancing their claim. The former solicitors for the claim group at regional directions hearings, as noted above, indicated to the Court that work was to be done in advancing the claim. That did not happen under the direction of the former solicitors. I say that not intending any criticism of the former solicitors, for I simply do not know what the circumstances then were. What is evident, however, is that since the solicitors currently on the record have assumed direction for the proceeding, the anthropologist Mr Johnson has been engaged, with other anthropologists, through the University of Queensland. Preliminary anthropological research has been done which, in the opinion of Mr Johnson, suggests that there are good reasons to consider that the excluded area is traditional Thalanyji country, that the claim group can establish their antecedents to the former traditional owners of the country and that there is a range of knowledge and activity which suggests the maintenance of a connection with that country according to traditional laws and customs of the Thalanyji People. That at least is the thrust of the research which has not yet been completed. I am informed by the affidavit evidence of Mr Johnson that his “connection report” will be completed later this year, in November. These circumstances in my view constitute a reason why the application should not at this point be dismissed.

95    However, if, in the long run, this proceeding is to avoid being dismissed, for example on the motion of the Court under s 190F(6), then a number of things must happen in a timely way. First, the anthropological research needs to be completed in the timeframe identified by Mr Johnson. Secondly, the claimant application will need to be amended in the ways that have been foreshadowed in the further draft amended form 1 claimant application annexed to Mr Milder’s affidavit filed 4 October 2012, and perhaps in either ways suggested by the forthcoming connection report. Thirdly, the amended application will then need to be considered by the Registrar or delegate for registration purposes.

96    If at that point the claimant application again fails the registration test, and depending on the nature of the issues that might be raised if it does so, then the Court will no doubt consider of its own motion whether the application should be dismissed under s 190F(6).

97    Of course, if the anthropological research is not completed in a timely way and/or the claimant application is not amended and lodged for consideration by the Registrar or delegate in a timely way, then the Court may also, having regard to the long and unsatisfactory history of the progress of this proceeding, move for its dismissal under s 190F(6).

Conclusion

98    For these reasons I am not satisfied that the maintenance of the claimant application in Thalanyji (No 2) constitutes an abuse of process on the grounds contended for by the State or that the requirements of s 190F(6) have been satisfied to justify dismissal of the proceeding at this point.

99    I note that the solicitor for the claim group says there are a number of elderly or infirm members of the claim group whose evidence should be preserved in this proceeding. That is not currently the subject of any application before the Court and I will, at this stage, leave it open to the applicants to make an appropriate application for the taking of what is called “preservation evidence” if they consider it appropriate.

ORDER

100    The Court orders that:

1.    The application of the first respondent to dismiss the application under s 190F(6) of the Native Title Act 1993 (Cth) for abuse of process be dismissed.

Associate:

Dated:    23 October 2012