FEDERAL COURT OF AUSTRALIA

Champion v State of Western Australia (No 3) [2014] FCA 280

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    These reasons address the question of dismissal of this application (known as the Kalamaia Kabu(d)n application) pursuant to s 190F(6) of the Native Title Act 1993 (Cth) (NTA). Consideration of dismissal of the application comes about as a result of the Court’s own motion. As the history discussed in the reasons reveals, consideration of dismissal pursuant to s 190F(6) has been raised on two previous occasions but, in effect, adjourned pending the outcome of further attempts to mediate the application. Further submissions updating the current position have now been filed by the first respondent (the State). Although the applicant has filed no submissions, I am satisfied that the applicant has had more than sufficient opportunity to do so for reasons which follow.

LEGISLATIVE FRAMEWORK

2    Section 190F NTA relevantly provides as follows:

190F    If the claim cannot be registered—review by Federal Court

…

Where no application for review, or Court does not make order under subsection (4) on review

(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.

(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 added)

recent PROCEDURAL BACKGROUND

3    The State contends that pursuant to s 190F(6) NTA the Court should dismiss the present claim. On 6 December 2013, I made orders following a directions hearing (which were subsequently varied on 31 January 2014) for the filing of submissions by the State on 5 February 2014. Those submissions were filed. Pursuant to the orders, the applicant and any other respondents who chose to do so were to file any responsive submissions by 5 March 2014. No submissions have been filed in response.

4    The applicant is self-represented but through Mr Brian Champion has been kept informed of the orders and requirements of the Court. On 15 January 2014 Mr Champion contacted the Registry seeking clarification as to the orders made at the directions hearing on 6 December 2013. In response, the Registrar provided a letter dated 15 January 2014 to ensure he was clear about the orders made. Mr Champion was also advised that if there were any further queries, to contact the Registry. The letter was sent to both of Mr Champion’s addresses which had been provided to the Registry.

5    On 31 January 2014, the Registry contacted Mr Champion by telephone to advise that the orders made on 6 December 2013 had been varied at the request of the State. It was confirmed that the change meant that the State could file submissions by 5 February 2014 and the applicant could file responsive submissions by 5 March 2014. Mr Champion confirmed his understanding of that variation and the Registry advised a copy of the orders made on 31 January 2014 varying the orders dated 6 December 2014 would be sent and also emailed to Mr Champion. They were sent on 3 February 2014.

6    On 6 February 2014, the Registry contacted Mr Champion by telephone advising that the State had filed its submissions. Mr Champion had received a telephone call from the State confirming arrangements to send the documents to the applicant. The applicant was advised to contact the Registry if the State’s submissions were not received.

7    On 10 February 2014, the Registry received a telephone call from Mr Champion advising that the submissions had not been received from the State and that the applicant would contact the State about this to follow up.

8    The Registry was not contacted by the applicant again until 20 March 2014 when the Registry received a phone call from Mr Champion querying whether there was a Court hearing on 18 March 2014. The Registry confirmed that the matter was not listed for hearing on 18 March 2014. Mr Champion confirmed that the applicant had not filed anything in relation to the matter as he thought ‘I’ll just let it go’. The time for filing reply submissions expired on 5 March 2014.

9    Provision was made under my original orders, as varied, for the matter to be determined on the papers.

EARLIER BACKGROUND

10    As long ago as 9 December 2008, orders were first directed to the question of whether there should be dismissal pursuant to s 190(f)(6) NTA. The applicant (then represented) filed submissions in opposition to any proposed dismissal on 3 March 2009 to which the Nadju respondent responded on 1 May 2009. The applicant then filed reply submissions on 22 May 2009 and on the same day applied for leave to amend the application. As a consequence, the amendment of the claim area took precedence over the dismissal issue for a period.

11    Following the further amendment of the application on 11 November 2008, orders were not again directed to the question of whether there should be dismissal pursuant to s 190F(6) NTA until 9 June 2010 (2010 Consideration). The applicant filed submissions in opposition to any proposed dismissal on 3 March 2009 to which the State responded on 30 July 2010.

12    The events which gave rise to the 2010 Consideration were the initial failure of the application to pass the registration test on 26 July 1999.

13    This gave rise to amendments on 19 December 2000.

14    On 29 March 2001, the delegate of the Native Title Registrar (delegate) refused to accept the amended application for registration under the NTA on the grounds that:

(a)    The delegate was not satisfied that the persons in the native title claim group formed a properly constituted native title claim group as required by s 61(1);

(b)    The delegate was not satisfied that there had been compliance with s 61(4) in relation to a clear description of the claim group;

(c)    For the reasons set out in (a) and (b) above the application did not meet the requirements of s 190C(2);

(d)    The delegate was not satisfied that the application met the requirements of s 190C(3) relating to the issue of whether members of the claim group were members of a previous registered application (Ngadju);

(e)    The delegate was not satisfied that the application was authorised under s 190C(4)(b) and s 190C(5); and

(f)    The delegate was not satisfied that the persons in the claim group were identified sufficiently for the purposes of s 190B(3).

15    However, the delegate considered that otherwise the application satisfied the requirement of the registration test. In particular, the delegate was satisfied that:

(a)    at least some of the applicants to the amended Kalamaia Kabu(d)n application had, and their predecessors had, an association with the area for the purposes of s 190B(5)(a);

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

(c)    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).

16    The registration test was then triggered again pursuant to item 90 of the Transitional Provisions of the Native Title Amendment Act 2007 which commenced on 15 April 2007. On 24 August 2007, the delegate, once again, refused to accept the application for registration under the NTA on the grounds that the requirements of s 190C(2) were not met as the application did not comply with s 61(1) regarding claim group description and, further, the application did not comply with ss 190C(3), 190C(4), 190B(3) and 190B(5), (6) and (7).

17    The delegate also found that the application did not comply with merits based aspect of the registration test in s 190B NTA, as the fact that the application was not apparently made or authorised by a properly constituted native title claim group was fatal to the applicant being able to prove a sufficient factual basis to support the assertions in s 190B(5) NTA relating to the existence of the claimed native title rights and interests.

18    In Champion v State of Western Australia [2009] FCA 1141 (Champion No 1) I considered a motion to amend the application pursuant to s 64(1A) by reducing the area in respect of which the claim was pursued. I considered that the amendment proposed should be permitted. The effect of the amendment was to substantially reduce the claim area to the overlap area with the Ngadju claim.

19    Mediation assisted by the National Native Title Tribunal (NNTT) then ensued. Following the amendment, the application was again considered for registration on 11 December 2009. Again, the delegate refused to accept the application for registration on the grounds that:

(a)    the requirements of s 190C(2) were not met as there was no compliance with s 61(1) and s 61(4) NTA regarding the claim group description;

(b)    there was no compliance with s 190C(3) and s 190C(4) regarding overlapping applications and authorisation; and

(c)    the application did not comply with s 190B(2) as no map was included with the application.

20    In summary, the principal grounds of rejection according to the various delegates were that:

(a)    the claim group description on its face did not encompass the entire native title claim group: Risk v National Native Title Tribunal [2000] FCA 1589;

(b)    the claim group description had members in common with the registered overlapping Ngadju claim;

(c)    because the claim group description did not encompass the entire native title claim group the claim had not been properly authorised; and

(d)    because of the limitations of the claim group description there was insufficient evidence that the ‘claim group as a whole’, which is said to be a much larger group than the present applicant, had sufficient connection to the claim are to satisfy the merits requirements of the registration test.

MEDIATION IN THIS COURT

21    The claim remained in mediation by the NNTT from November 2009 until 13 December 2012 when, by order of Deputy District Registrar, it was moved to mediation by this Court. Whilst the claim remained in mediation with the Court, I withheld judgment on the s 190(F)(6) issue which had arisen again in July 2010.

22    However, it transpires that little progress had been made in mediation until a report was provided on 2 October 2013 by the Deputy District Registrar that the Court mediation had been unable to resolve the overlap of the Kalamaia Kabu(d)n claim with the Ngadju claim. A recommendation was made that the mediation should be terminated. The mediation was duly terminated by an order made on 25 October 2013.

23    The State had in directions hearings before the Court, been active in trying to progress the Kalamaia Kabu(d)n claim on several occasions but considerable tolerance was allowed by the Court in order to attempt to resolve both the Kalamaia Kabu(d)n claim and two other potentially affected claims.

ANALYSIS

24    In the end, however, the position is that the Kalamaia Kabu(d)n claim was lodged over 14 years ago. It has failed the registration test on four occasions during that period. Despite several amendments, it remains unregistered.

25    It is four years since the most recent amendment to the claim and there is no evidence of any effort being made to remedy the defects identified in the claim. No indication has been given as to any further attempts which may be under way to prepare the claim properly for registration. Indeed, as observed, no submissions have been made at all in response to the State’s submissions in support of dismissal of the application.

26    There is no evidence before the Court that any efforts successful or otherwise have been pursued to overcome the persistent problem repeatedly identified in the rejection of the registration of the claim, namely, the inadequate identification of the native title claim group and its concomitant problem of inappropriate authorisation of the claim.

27    As also noted by the State, the claim group description has members in common with the registered overlapping Ngadju claim. That claim has now been determined, save for any overlap area, in Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1455 and in State of Western Australia v Graham on behalf of the Ngadju People [2013] FCAFC 143. I accept the submission for the State that this determination would limit, if not close, any scope for agreement between the Ngadju claim members and the Kalamaia Kabu(d)n claimants as to the composition of the latter’s claim group.

28    There is no basis on which the Court could be satisfied that the application could be amended in a way which could lead to an outcome different from the four previous rejections. This is so having regard to the length of time which has passed, during which these deficiencies have been the central issue at all times. There has been ample opportunity for the claim to be appropriately amended, if amendment were possible, however, no such action has been forthcoming.

CONCLUSION

29    In all the circumstances, the factors in s 190F(6) NTA are satisfied and, in my view, the claim should be dismissed. The following orders are made:

1.    The application is dismissed.

2.    There be no order as to costs.

Associate:

Dated:    25 March 2014