FEDERAL COURT OF AUSTRALIA

Strickland v State of Western Australia [2013] FCA 677

THE COURT ORDERS THAT:

1.    The application in this matter be dismissed.

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

REASONS FOR JUDGMENT

1    These reasons for judgment concern a Form 1 application filed by the applicants on 14 October 2010, which has failed the native title registration test on four occasions. This hearing arose by the Court’s own motion, pursuant to s 190F(6) of the Native Title Act 1993 (Cth) (the Native Title Act), which provides:

(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.

2     The applicant filed an interlocutory application application on 14 June 2013 seeking leave to amend the Form 1 application. Supporting the interlocutory application was the affidavit of Mr Ronald Bower. The affidavit of Mr Bower includes as an annexure an affidavit of Marjorie May Strickland which attaches, amongst other things, a series of agreements and authorisations in accordance with the minutes of a meeting held on 19 January 2013 for those persons who could attend in person, and documents evidencing agreement and authorisation for those who could not attend in person. The essence of the resolution which was agreed by apparently 38 of the 42 persons either actually or notionally in attendance of the meeting was as follows:

We authorise Marjorie May Strickland and Anne Joyce Nudding to continue as applicant for the Maduwongga claim WC10/14, WAD301/2010, and amend the claim group to the descendants of Kitty Bluegum.

3    It is explained in the evidence and in the written submissions of both parties that the primary reason that the delegate of the Native Title Registrar (the Delegate) refused registration was the conclusion reached that the application did not satisfy s 190C(4)(b) of the Native Title Act because the Delegate could not be satisfied that the applicant was authorised by all the persons in the native title claim group who according to their traditional laws hold the common or group rights and interests comprising the particular native title claimed. The reason for this is that it was apparent on the face of the Form 1 application that the native title claim group was a subgroup only of the local descent group comprising the descendants of Kitty Bluegum.

4    According to the applicants’ submissions, it therefore follows that if the native title claim group had been claimed to be comprised of all of the descendants of Kitty Bluegum, the native title application would likely have satisfied all the conditions in the Native Title Act to enable it to be accepted for registration. For this reason, the applicants submit that the conditions precedent to the exercise of power in s 190F(6) of the Native Title Act are not satisfied, in that it could not be said that the application is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar, the result being, according to the applicants, that the Court may not dismiss the application pursuant to s 190F(6).

5    The first respondent, the State of Western Australia, says that there is no power to amend the application in the way in which the applicant seeks. The reason for this is the terms of s 61 of the Native Title Act, which provide that a native title determination application may be made by a person or persons authorised by all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, and the reasoning of McKerracher J in the matter of Velickovic v State of Western Australia [2012] FCA 782 (‘Velickovic), particularly at [37].

6    It appears that in Velickovic, the applicants were not authorised in any way by any persons. However, they sought to persuade the Court that their application should not be summarily dismissed on the basis that there could be an adjournment granted in order to enable the application to be amended, in effect, by obtaining the authorisation which had not been obtained before the commencement of the proceedings and the making of the native title determination application. McKerracher J refused the adjournment and dismissed the application, stating at [36] that:

The central difficulty is that convening a meeting [to authorise the application] cannot cure the problem. As Mr Ranson for the first respondent (the State) noted in supporting the strike out application, there are three difficulties.

7    Those difficulties are identified at [37], which is in the following terms:

The first is that what is now proposed is that a different set of people or a different claim group is going to reauthorise the claim made on behalf of an earlier set of people. A different set of people cannot reauthorise a claim brought on behalf of another set of people. What is required is a fresh claim. While the NTA does make provision for amendment of claims which includes an amendment to the claim group or to the applicant, the difficulty is in a different group of people seeking to amend a claim originally brought on behalf of another group. The NTA provides for amendment of a claim and amongst other things to the claim group itself. There could, in theory, be many reasons for such amendment – a particular person may have been overlooked, or another may have died or someone may have been mistakenly included. There might be a description of a group which requires better specificity than was originally used. But in this case when there is no evidence of any authorisation at all and when it is accepted that there was never any proper authorisation the position is different. There can not be some process of ratification or re-authorisation to ratify or confirm an authorisation which never occurred at all. There can not be as Widji describe it a ‘re-authorisation’ when the group said to be doing the authorising is differently constituted from the group who supposedly authorised the representative applicants in the first place (and there is no evidence of that original authorisation process, traditional or otherwise, in any case).

8    The first respondent relies upon the reasoning in [37]. The proposition is that the original native title claim group in the present case on the evidence must be a subset of the 38 people who agreed to the amendment in January of this year. However, the balance of that 38, being the other descendants of Kitty Bluegum who were excluded from the original native title claim group, are strangers to the application. They were not and are not as at January of this year part of the original native title claim group. While it might be assumed that the members of the original native title claim group all voted in favour of the amendment, the fact is that they themselves are not all of the people in the native title claim group as required by s 61 of the Native Title Act. Accordingly, the first respondent submits, there is simply no way to get around s 61 when, as in this case, an application has purportedly been brought on behalf of what is now effectively acknowledged to be a part only of a native title claim group. In addition to that, the first respondent says that in the factual circumstances of this case, while there is no discretion, there being no power to permit the amendment, if there were power the history of the applications made by these applicants is one in which there should not be an exercise of discretion in favour of the making of the proposed amendment. Rather, the current proceeding should be dismissed, and if another claim is properly authorised, then that claim might be brought.

9    According to the applicants, however, there is power to enable the amendment. At [37], McKerracher J identified three circumstances in which he said there could in theory be amendments, including to the claim group itself. There is also no express limit on the power of amendment as set out in s 64 of the Native Title Act. In addition, the power of amendment generally of an originating process is contained in r 8.21 of the Federal Court Rules 2011. The terms of s 84D(4) of the Native Title Act also provide a suggestion that a defect in authorisation is not necessarily fatal and so by extension there is no reason to assume that the power to amend does not include the amendment of the native title claim group as currently proposed. In terms of discretion, the applicant emphasises the terms of the report in respect of registration where registration was refused, in effect, because of the exclusion of part of the native title claim group in circumstances where the person so excluded, at least at that time, identified with another native title claim group and, indeed, were part of another native title claim.

10    For my own part, I find the issue of power extremely difficult to determine. It seems to me that the issue of power involves close consideration of the provisions of the Native Title Act, in particular ss 61- 251B, 64, with 84D(4) also being potentially relevant to how the provisions should be construed. It is true that s 61 says that a person who may make an application is:

A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed …

11    There is no express power of amendment of a native title claim group in the Native Title Act. Section 64 does provide that “an application may at any time be amended to reduce the area of land or waters covered by the application.” It then states, importantly, that “this subsection does not, by implication, limit the amendment of applications in any other way.” There are also procedural provisions in the Native Title Act such as s 66A which deals with notice of an amended application, as well as s 66B dealing with replacing an applicant, and other provisions concerning how an application which has been amended must be dealt with. But there is not a provision which identifies the scope of the power of amendment. There is also the intersection with the Federal Court Rules 2011, and I have referred above to r 8.21 which, in subs (1) provides that an applicant may apply to the court for leave to amend an originating application for any reason, including, relevantly:

(a)     to correct a defect or error that would otherwise prevent the court from determining the real questions raised by the proceeding; or

(b)     to avoid the multiplicity of proceedings; or

(c)    to correct a mistake in the name of a party to the proceeding; or

(d)    to correct the identify of a party to the proceeding

12    The native title claim group is represented by the applicants who are parties to proceedings and therefore, at least theoretically under r 8.21 their identity can be corrected. However that, of course, would have to be read subject to the provisions of the Native Title Act. The difficulty I have with the logical conundrum which the first respondent submits is presented by this case is that it would preclude, if taken to its logical conclusion, any change to a native title group whatsoever, no matter what stage of the proceedings had been reached and no matter what the reason for the change. This is because, as soon as it is proposed to add in any person to a native title claim group because it is accepted that that person should be a part of the native title claim group, then the application will never be one which was authorised by all persons as required by s 61. This is an unattractive proposition to say the least, because it is not difficult to think of many circumstances in which the interests of justice might well be served by enabling the identification of a native title claim group to be changed including by way of the addition of a person who is recognised, albeit belatedly, to be a proper member of the native title claim group.

13    Ultimately, I do not consider that it is necessary for me to resolve the issue of power in this case. The reason for this is that the facts of this case are that a deliberate decision was made at the time this native title determination application was filed not to include the whole of the native title claim group. The reasons for so doing no doubt appeared rational at the time. Certain persons who were not members of the native title claim group did not, apparently, identify as such, and were claimants to another native title claim. Nevertheless it was a deliberate decision, in this case, to make a native title determination application on behalf of what could only ever be a sub-group of the persons who could, according to traditional laws and customs, hold common or group rights and interests comprising the particular native title claimed.

14    The application to amend was made in response to the court listing the matter for determination as to whether or not the proceeding should be dismissed under s 190F(6). The application has not been registered and the proceedings are not in any way well advanced. These are all relevant discretionary factors, as is the complicated history of the application including multiple different applications which have variously been either discontinued or dismissed as set out in the registration report. All of these factors weigh against an exercise of discretion in favour of the applicant in this case to permit the amendment in circumstances where the way in which the original application was framed was not by reason of any form of mistake or oversight but was a deliberate decision based upon relevant circumstances at that time.

15    It might be assumed in favour of the applicant that, as submitted at paragraph 7 of the written submissions, had the claim as originally lodged comprised all of the descendants of Kitty Bluegum, the native title application would have been likely to have satisfied all the conditions in the Native Title Act to enable it to be accepted for registration. As I have said, let that be assumed in the applicants’ favour, although the factual foundation for that submission is not necessarily accepted having regard to the terms of the registration report. In any event, even when that is assumed in the applicants’ favour the circumstances to which I have otherwise referred remain. Namely, the decision was deliberate to constitute the native title claim group in a particular way. The applicants for the present application have made multiple applications for determinations of native title with a complicated history resulting in what is described in the first respondent’s written submissions as “multiple failures both registration, tests and in court at trial”. As the present application is not registered, what is also put by the first respondent is that “its dismissal will not disrupt any commercial agreements or other transactions”. It is also a very significant amendment to the constitution of the native title claim group which is proposed. In these circumstances I am minded to accept the first respondent’s submission that the history of the present application does not warrant the exercise of any discretion in the applicants’ favour.

16    Rather, if the applicants now do accept that any native title application must be brought, and indeed can only be brought, in accordance with the terms of s 61, namely that the person or persons who are the applicants must be authorised by all the persons who, according to their traditional laws and customs hold the common or group rights and interests comprising the particular native title claimed, then, given the history of this matter and the stage at which these proceedings are at (and that is not particularly well-advanced at all), the proper course is that the amendment (assuming there is power to amend as proposed) should not be granted.

17    In these circumstances, in accordance with s 190F(6), it can be said that the application is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar because I am not minded to permit the amendment application. Accordingly the preconditions in s 190F(6) are satisfied. In short, a decision was made to file an application that was patently by a subgroup only of a native title claim group and in those circumstances the application was not one authorised or permitted by s 61(1) and an amendment of the magnitude and significance proposed should not be permitted even if it is within power. It follows that the order I will make is that the application in this matter should be and is dismissed.

Associate:

Dated:    3 July 2013