FEDERAL COURT OF AUSTRALIA

Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application be summarily dismissed.

2.    The applicant pay the costs of each of the respondents, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1    The Applicant (Mr Prior) applies for judicial review of a purported decision of the Registrar of the National Native Title Tribunal pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and r 31.01 of the Federal Court Rules 2011 (Cth) (Mr Prior’s application). Mr Prior’s application sets out seven grounds (quoted verbatim):

1.    Natural Justice in Minister of State for Immigration and Ethnic Affairs v Teoh

2.    The British did not settlement or colonise Western Australia and Noongar Nation.

3.    The British defraud the Western Australian First Nations and the Noongar Nation of their land and minerals by conquest or invasion.

4.    For Native Title Act to be valid the British would have to have come to Western Australia and Noongar Nation by settlement or colonisation but this did not happened [sic] they came by force and invasion.

5.    Noongar Nation cultural protocol and framework was not followed by the SWALSC, United Kingdom Government, Queen of Australia and Queen Britain United Kingdom, Western Australian government and Governor Western Australia and Governor General Australia and All local governments from Geraldton to Southern Cross to Esperance, Australian Government, Noongar Nation had decision making process which every0ne below did not follow.

6.    Fraud stealing Noongar land and mineral. SWALSC, United Kingdom Government, Queen of Australia and Queen of Britain United Kingdom, Western Australian government and Governor Western Australia and Governor General Australia and All local governments [from Geraldton to Southern Cross to Esperance, Australian Government] did not include the Noongar Nation and Australian Electoral Commission and Noongar People.

7.    criminal Conduct leading to collusion, fraud and extortion of the Indigenous Land Use Agreement.

2    These reasons address an interlocutory application filed by the State of Western Australia seeking summary dismissal of Mr Prior’s application pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and/or r 26.01 of the Federal Court Rules.

BACKGROUND

3    As explained in McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) (2019) 374 ALR 329 (at [1]-[11]), the Registrar of the Tribunal determined to register six Indigenous Land Use Agreements (ILUAs). That proceeding involved a challenge to the Registrar’s decisions concerning her registration of the six ILUAs on the Register of Indigenous Land Use Agreements under s 199A of the Native Title Act 1993 (Cth) (the NTA).

4    The six ILUAs pertain to a large area in the South West of Western Australia (the Settlement Area). The Settlement Area has been the subject of numerous native title determination applications or claims by the Noongar people. The Noongar people are indigenous Australians who claim native title rights in respect of land and waters in the South West of Western Australia. The Settlement Areas covers over 200,000 square kilometres from Geraldton on the west coast to Esperance on the south coast. There are between 30,000 and 40,000 Noongars in Western Australia. Most of them live in Perth. Some of the claims date back to the 1990s. None of them, however, has led to a successful determination that the Noongar people hold native title rights and interests over any part of the Settlement Area. The ILUAs, taken as a totality would implement an agreement between the State and representatives of the Noongar people that would have the effect of settling all native title claims of those people.

5    The ILUAs are intended to give effect to a final settlement of native title claims that had been negotiated by the first respondent, the South West Aboriginal Land & Sea Council Aboriginal Corporation (SWALSC), and the State over several years (the Settlement). SWALSC’s involvement in these negotiations accorded with instructions given to it by representatives of family groups represented in registered Noongar claims, as well as input obtained from other Noongar people, including through dozens of community meetings.

6    Under the Settlement, the State would provide a package of benefits (with an estimated value of $1.3 billion) in return for the Noongar people surrendering all native title rights and interests in relation to the land and waters in the Settlement Area, consenting to determinations that native title does not exist, and validating potentially invalid acts that have been carried out by the State in the Settlement Area.

7    Part of the Noongar history concerning the NTA proceedings includes Bennell v Western Australia (2006) 153 FCR 120 where Wilcox J recognised (at [841]-[848]) the right of the Noongar people to occupy, use and enjoy lands and waters in the Perth metropolitan area, subject to the principle of extinguishment. That decision, finding the existence of native title rights, was reversed on appeal in Bodney v Bennell (2008) 167 FCR 84. Since that time, the State and other parties have engaged in negotiations resulting in the six ILUAs.

8    The six registered ILUAs the subject of these judicial review proceedings are:

(a)    the Wagyl Kaip and Southern Noongar Indigenous Land Use Agreement, WI2017/014 (the Wagyl Kaip & Southern Noongar ILUA);

(b)    the Ballardong People Indigenous Land Use Agreement, WI2017/012 (the Ballardong People ILUA);

(c)    the South West Boojarah #2 Indigenous Land Use Agreement, WI2017/013 (the South West Boojarah #2 ILUA);

(d)    the Whadjuk People Indigenous Land Use Agreement, WI2017/015 (the Whadjuk ILUA);

(e)    the Gnaala Karla Booja Indigenous Land Use Agreement, WI2015/005 (the Gnaala Karla Booja ILUA); and

(f)    the Yued Indigenous Land Use Agreement, WI2015/0019 (the Yued ILUA).

9    It was the authorisation process mandated by the NTA for the registration of ILUAs which was the focus of attention in the challenges in McGlade. Many of the same arguments are raised by Mr Prior in these proceedings.

10    Between January and March 2015, there were six authorisation meetings conducted. Persons identified as holding native title in respect of the area covered by each ILUA were invited to the meetings, as well as persons who claimed they were entitled to hold native title in respect of those areas. A central feature of the meetings was that they were held ‘on country’, being locations within the Settlement Area for each of the proposed ILUAs. Thus:

(a)    the meeting to authorise the Gnaala Karla Booja ILUA took place on 31 January 2015 in Bunbury (approximately 173 km from Perth);

(b)    the meeting to authorise the South West Boojarah #2 ILUA took place on 14 February 2015 in Busselton (approximately 195 km from Perth);

(c)    the meeting to authorise the Wagyl Kaip & Southern Noongar ILUA took place on 21 February 2015 in Katanning (approximately 250 km from Perth);

(d)    the meeting to authorise the Yued ILUA took place on 7 March 2015 at Gingin (approximately 68 km from Perth);

(e)    the meeting to authorise the Ballardong People ILUA took place on 14 March 2015 at Northam (approximately 83 km from Perth); and

(f)    the meeting to authorise the Whadjuk People ILUA took place on 28 March 2015 in Cannington in Perth.

11    The applicants in McGlade were in two groups, being the McGlade applicants and the Mackay applicants. The McGlade applicants contended, as does Mr Prior in effect, that the Registrar erred in finding that the authorisation conditions for registration were satisfied. In particular, they submitted that the Registrar could not have found, as she did, that all the people identified as holding native title rights in respect of the Settlement Area had authorised the making of each ILUA.

12    In the claims brought by the Mackay applicants, it was contended that the subject of each of the ILUAs was native title held by all Noongar people. However, it was contended that the notices inviting attendees to each authorisation meeting did not invite all Noongar people who held that native title to the meetings to consider the six ILUAs. Rather, it is said that those invitations were limited to descendants of particular Noongar people. This point was raised with the Registrar, but the Registrar, it was contended, failed to consider the point and reached a conclusion on the basis that a subgroup of the common law native title holders could authorise each ILUA. The Mackay applicants argue that this is an error of law.

13    A direction was given under s 20(1A) of the Federal Court Act for the judicial review applications to be heard and determined by a Full Court.

14    The Full Court heard arguments and delivered a reserved decision in McGlade rejecting the applications. In his submissions, Mr Prior raises many of the same matters but his application is more broadly based and raises amongst other things, questions of sovereignty.

15    While Mr Prior’s application refers to applying to the Court to review a decision of the Tribunal of 18 July 2018, no relevant decision was made on that date within the meaning of s 3(1) of the ADJR Act, but, rather, an announcement was made that the Tribunal had advised the State and SWALSC that the Registrar expected to make a decision in relation to the registration of each of the six ILUAs on the Register of Indigenous Land Use Agreements established under s 199A of the NTA. It is clear from Mr Prior’s submissions that the decisions that are intended to be the subject of Mr Prior’s application are all six of the Registrar’s decisions made on 17 October 2018 pursuant to s 24CJ and s 24CK of the NTA to register the six ILUAs (Registration Decisions). As noted above (at [4]-[5]), the six ILUAs comprise the Settlement for the resolution of all current and future native title claims over the south-west of Western Australia in exchange for a comprehensive package of benefits.

16    On 21 December 2018, the State filed an interlocutory application seeking the summary dismissal of Mr Prior’s application pursuant to s 31A(2) of the Federal Court Act and/or r 26.01 Federal Court Rules on the grounds that:

(1)    Mr Prior has no reasonable prospect of successfully prosecuting the proceedings; and/or

(2)    no reasonable cause of action is disclosed; and/or

(3)    the proceedings or part thereof are frivolous or vexatious or an abuse of the process of the Court.

17    The State relies upon affidavits of Mr Gorman filed 21 December 2018 (the first Gorman Affidavit), Dr Mills filed 21 December 2018 (the Mills Affidavit) and Mr Gorman’s affidavit of 25 March 2020 (the second Gorman Affidavit).

18    On 5 February 2019, Mr Prior filed an affidavit sworn on 18 December 2018 in response to the Interlocutory Application (Mr Prior’s Affidavit). In addition, Mr Prior filed the following documents on 5 February 2019:

(a)    written submissions (the Prior submissions);

(b)    an affidavit of Mr Hedley Raymond Hayward sworn on 5 February 2019;

(c)    an affidavit of Ms Adaline Slater sworn on 5 February 2019;

(d)    an affidavit of Ms Lynette Minson sworn on 4 February 2019;

(e)    an affidavit of Mr Herbert Bropho sworn on 5 February 2019;

(f)    an affidavit of Mr Fabian Yarran sworn on 4 February 2019; and

(g)    an affidavit of Mr Mervyn Eades sworn on 5 February 2019.

SUBMISSIONS FOR MR PRIOR

19    At the hearing of the application, Mr Prior was represented by leave of the Court, and without opposition from the respondents, by a person whom he described as being his ‘advocate’, Ms L Minston. In addition to oral arguments advanced for Mr Prior at the hearing by Ms Minston, I take Mr Prior to also be relying upon the filed Prior submissions. In those submissions Mr Prior said (verbatim – errors in the original):

Submissions;

We reject the Respondents claims as misleading and unfounded.

We believe SWALSC breech the Laws of Natural Justice and procedural fairness in paragraphs 1-8.

1.    It appears that SWALSC did not give fair and accurate information about both sides of the Noongar ILUA. They mainly presented the positive aspects of the deal. They did not properly or fully explain both sides of the Noongar ILUA. Nor were the negative aspects of the deal discussed properly and there was no opportunity for input or negotiation. Noongars were told this is the deal and there won't another opportunity as good as this. Some of the information they gave appears misleading. (Affidavit Mervyn Eades, Hedley Hayward).

2.    On page 3 of the summary guide they stated that the ILUA would not interfere with a treaty, now Noongars have been told that the Noongar ILUA is a treaty. In Harry Hobbs "the noongar settlement" Auspub Law, 24th Oct 2018, he states that Roger Cook (Former Shadow Minister) said in Parliament 19th Nov 2015 that the Noongar ILUA is a classic treaty.

Harry Hobbs also states that Glen Kelly says that the Noongar ILUA is a small treaty. Early last year on the ABC news Mr Bill Shorten spoke about the Noongar Treaty. Mid last year at a community meeting in Victoria Park Ben Wyatt the Western Australian Minister for Aboriginal Affairs, when asked the question is the Noongar ILUA a treaty he replied yes. (Affidavit Fabian Yarran, Lynette Minson). Noongars should have been told they were entering into a treaty and SWLASC should have explained why a usual treaty framework was not used in the making of this treaty. They should have also explained the effects the ILUA has on sovereignty and self-determination. In the Summary Guide page 3 it states that the Noongar ILUA will have no effect on a treaty or sovereignty. That the only thing that it will stop is litigation in the courts over Native Title. This statement appears misleading.

3.    Locking people out of the Authorization Meetings; It appears that some people who were entitled to vote and who had made the long journey to participate in the Authorization poll were prevented from entering the hall and denied the right to vote. This is unfair and unjust and a breach of natural justice. It is also a breach of the [NTA]. (Affidavits Herbert Bropho, Mervyn Eades, Hedley Hayward).

4.    Buses; We reject the claim that buses were an adequate form of transport to the Authorization meetings as misleading. Buses left from the SWALSC office in Cannington. It is a long walk from the Cannington train station. The Buses left very early often before public transport commenced. The Katanning bus left at 0530hrs. You would have needed a lift or a taxi. No children were allowed on these buses. The meeting were held during school holidays. Noongars are experiencing a baby boom. Many Elders have full time care of their young grandchildren. Yet no child care was provide in Perth or at the meeting location. As shown by the low turnout lack of suitable transport and lack of finances was a big barrier preventing many Noongars from voting. Also having to be on country at such an early hour 0830hrs or you risked being locked out. This is an unreasonable expectation and unnecessary and another unfair barrier to Noongar participation in the ILUA. (Affidavit, Hedley Hayward).

5.    Incorrect and misleading information about having to vote on country and in person; Traditionally in Noongar culture Elders make the big decisions. When Noongar people asked SWALSC why could a polling booth not be set up in Perth or postal or proxy voting allowed to make it possible for all our Elders and those unable to travel to have a vote in the poll, SWALSC said that under the [NTA] you had to vote in person on country and postal/proxy voting was not allowed.

This is a misleading claim as no such rule exist within the [NTA]. They also claim postal and proxy voting would be unworkable. This claim is unfounded as the Electoral commission successfully runs postal voting every State and Federal election. Companies use proxy voting all the time. There was no reason why a polling booth could not be set up in Perth and also regional areas. 80% of Noongars live in Perth it is unnecessary, unreasonable and unfair to expect Elders, those with health conditions, people with young children and caring responsibilities to travel so far, often multiple journeys to vote on country. Many Elders and people with health conditions wanted to vote but were denied this right as many could not travel due to health reasons and lack of suitable transport. (Affidavits Hedley Hayward, Adaline Slater, Mervyn Eades)

6.    Noongars out of Country; Noongars working or living out of Noongar country were expected to fund their own travel, expenses and time off work. Resulting in many Noongars who live and work away not being able to participate in the ILUA poll. (Affidavit by Hedley Hayward, Adaline Slater).

7.    Incarcerated Noongars; Incarcerated Noongars were not given the opportunity to vote in spite of many being legally allowed to participate in the polling process. It appears that Bandyup and other women's prisons were not contacted about the Noongar ILUA. Many women prisoners receive short sentences, under three years. Prisoners serving sentences less than 3 years have the legal right to vote (Roach v AEC 2007), (Affidavit Mervyn Eades). This failure by SWLASC [sic] to allow incarcerated Noongars the right to vote also breaches Roach v AEC 2007.

8.    Noongars who are experiencing homelessness; It appears that Noongars living in homeless shelters and refuges or homeless on the streets of the CBD were not approached by SWALSC. Most Homeless Noongar people have ID and a contactable address as it is required for Centrelink and Banking purposes. Most also are contactable by phone. Many wanted to vote but could not due to a lack of finances and or health reasons. Living in a refuge, hostel or on the streets does not cancel you Native Title rights, as long as you have a contactable address you are allowed to participate in the ILUA poll. (Affidavit Mervyn Eades).

The percentage of Noongars who voted; We reject the claim as unfounded and incorrect that 10% of eligible Noongars voted in the ILUA. 1200 people voted out of 25,000 eligible Noongars voters is not 10%. The accepted figures are that at least 25,000 Noongars were eligible to vote and 1200 did vote, that is less than 5%. So less than 5% of eligible Noongars voted in the Noongar ILUA.

Claims that some Noongars are apathetic to any deal with the Government; SWLASC claims that some Noongars were apathetic and did not want any deal done with the Government are incorrect and unfounded. Most Noongars are not happy with the status quo and do want an agreement or treaty. Most Noongars were not happy with the agreement that the Government and SWLASC offered. Many were concerned with the total surrender of Native Title. Most felt that Native Title might not be perfect but it is still a land title and that Wik and Mabo were hard fought battles, Elders past did not surrender land and they did not want to surrender all their hard won rights. Others favoured a leasing of land. Some thought 121 houses inadequate. Some Noongars wanted some Crown land included. Others wanted stronger guarantees that the money and benefits would be shared by all and not just co-opted elites. Some had concerns over environmental protections. But it was a take it or leave it deal, no negotiations were permitted. This claim appears to be an excuse for ignoring many ordinary Noongars and targeting those who would vote yes.

Most Noongars are very interested in the ILUA and are not happy with it. That's why it appears that SWALSC put up so many barriers to prevent ordinary Noongar people from voting and targeted co/opted elites and their families and others who would vote yes, to secure a yes vote. (Affidavit Mervyn Eades, Hedley Hayward).

SWALSC had a duel role in regard to the Noongar ILUA. They were the organiser and facilitator of the authorization and information process and the beneficiary of the ILUA. Instead of being a neutral facilitator of the process, it appears they acted with an apprehension of bias. We believe this is evident in how one sided, inadequate and sometimes misleading the information that was provided appears. It appears they failed to properly and fully inform Noongars and explain both sides of the Noongar ILUA. It appears they put up unnecessary barriers that prevented most Noongars from voting. It appears they acted with an apprehension of bias. We believe that the evidence in paragraphs 1-8 suggests that it appears SWLASC breeched the Laws of Natural Justice during the process of facilitating the Noongar ILUA, breeched Roach v AEC in not allowing some prisoners a postal vote and right to participate in the ILUA, and breached the [NTA]

We believe that any fair-minded person looking at the evidence shown here would consider that the way SWALSC organised and facilitated the Noongar ILUA authorization and information process was unjust, unfair and bias. That is why we believe that on the grounds of Natural Justice and procedural fairness that the Noongar ILUA should be rejected and the result of the Noongar ILUA poll should be rejected.

(Annexures omitted.)

20    It will be assumed (for present purposes only) that Mr Prior is a person ‘aggrieved’ by each of the Registration Decisions sought to be reviewed in the sense of his interests being adversely affected by each decision.

21    As will be apparent on review of McGlade, every one of those points that could possibly go to the grounds of Mr Prior’s originating application was exhaustively canvassed in that case. Mr Prior chose not to have his complaints included in McGlade.

22    At the hearing of the application, Ms Minston appeared to read from the reply submissions of the applicant for the special leave to appeal application to the High Court from the decisions of the Full Court in McGlade. Ms Minston was not interrupted, although at times she did make additional points herself in clear and emphatic terms, expanding upon various aspects of the inadequacy of the support services provided by SWALSC, the barriers faced by many of the indigenous persons and the deprivation of their right to vote caused by the methods chosen by SWALSC.

23    The difficulty with these submissions is that they support an entirely different application. The grounds advanced in McGlade before the Full Court and to be relied upon in the special leave application in the High Court, are entirely different grounds from those relied upon by Mr Prior in this application.

24    It follows that:

(a)    the oral material relied upon is incapable of supporting Mr Prior’s application;

(b)    Mr Prior, like several other applicants, had the opportunity to advance these arguments in the McGlade proceedings before the Full Court where the applicants were ably represented by experienced and senior counsel. He chose not to be part of that cohort, but rather, pursue his own application and, of course, his own grounds; and

(c)    I am bound by the Full Court decisions, so could not reach a conclusion to the contrary of that decision as urged on behalf of Mr Prior, even if I were so inclined. I am not.

25    In oral submissions for Mr Prior, Ms Minston raised the following matters (which were, for the most part, taken directly from the reply submissions filed in the application for special leave to appeal from McGlade):

MS MINSTON: ... [Mr Prior’s] argument … is …, in this court, … consistent with the submissions in the Full Court that 251A mandates a two-step process agreement and adoption of a decision-making process and, two, authorisation in accordance with that process. The decision-making process must be agreed to and adopted by all the identified native title holders. … 12 decided as a matter of policy that meetings would be held, on Country, in circumstances where 251A does not mandate in-person meetings as the decision-making process.

… [A] reasonable opportunity was not afforded to all the identified native title holders to agree to and adopt the decision-making process, … rather, it was only those persons that actually attended the meeting were given the opportunity of voting on a resolution about the decision-making process, but … then it was too late because those who are unable to attend have missed out on expressing their views. … The [Registrar] made an error of law in applying 203BE(5) as on no view could they be satisfied that all identified native title holders had a reasonable opportunity to express their concern. … [W]hile [Mr Prior’s] argument is a refinement of his arguments below, there is no prejudice to the respondent because the application concerns a question of statutory interpretation in the context … of a judicial review proceeding. … [A]ll identified native title holders must be given a reasonable opportunity of agreeing to and adopting a decision making process. How [that] is implemented in a practical – in practice may vary.

[Mr Prior] does not suggest that there is invariably only one permissible method for adoption of a decision making process or that the representative body is unable to undertake preliminary work in order to [propose] a method of adoption. However, in the present case, there were tens of thousands of adult [Noongars] who were eligible to participate in the process. Most lived in Perth and a large proportion were, at any one time, incarcerated [and we must remember Roach v AB 2007]. Despite this, the only method of adoption of the decision making process that was offered was voting at meetings on country arranged [by] a resolution that purported to deem the process of having to be agreed and adopted by all the native title group. ...

[Advice] in putting this forward as the sole method is that it did not allow all identified … native holders to have a reasonable opportunity to have their way on and therefore to participate in the process. [A vice] was not addressed by the involvement of a [Noongar] negotiation team in negotiating the indigenous land use agreement or the instructions provided by representatives of some family groups represented in [registered Noongar] claim[s] … [and input] from the community meetings or by efforts made to inform the Noongar people about the meetings or availability of free buses to the meeting, and if I would just like to say that these free buses were ineffective. They left at 0530 hours in the morning.

Most Noongars, we live in abject poverty. The only way we could access those free buses and in[,] keeping in mind that no babysitting was provided and we have a baby boom, we have doubled our population in 10 years, was to either have a taxi fare – and when you have a choice of eating or a taxi fare, you know, there’s no way most people could get there. The only way they could have done was to catch the bus the night before and camp over, but no camping facilities were made available and no babysitting or respite care, and given we have such a higher number of disabled people, how could carers get there? …

…

Nor could the vice have been cured by the conduct of the meeting itself, where attendees could have decided on some other process that the majority chose not to do so. By the time of the vote, the non-attendees had already been excluded from participating in the determination as to what the decision making process was to be adopted. You know, basically [what] we’re told, you know, was misleading, you know. You didn’t have to vote on country. … [C]ontrary to [SWALSC’s] and [the Registrar’s] submissions, this case is a suitable vehicle for the determination of the special needs question. The registrar took the view that there was an agreed and adopted process of decision making. In the Full Court, [Mr Prior] agreed that the process of decision-making was not agreed to and adopted by all identified native title holders, being the first of the two-step process for authorisation.

[SWALSC] and [the Registrar] are incorrect in their assertion that [Mr Prior’s] submission was not raised in the proceeding below. The Full Court rejected [Mr Prior’s] argument. It held that despite the literal words of 251A of the Native Title Act, it was not necessary for all native title holders to participate in the authorisation process. In doing so, the Full Court erred both in (a) collapsing both steps of the authorisation process into one and (b) failing to appreciate the requirement that all native title holders be given a reasonable opportunity to agree to and to adopt the decision-making process, given the gravity – I mean, this is the most important decision that’s ever occurred in the history of the Noongar nation, your Honour. It is also not correct that 251A authorisation requirements applies to all Indigenous land use agreements, regardless of their consent. The requirement only applies to subdivision C Indigenous land use agreement, area agreement. Subdivision C area agreements have two features that differentiate them from other Indigenous land use agreements. First, the area agreements are used where there is no registered native title body corporate in respect of all the area the subject of the agreement. Second, if an Indigenous land use agreement provides for the extinguishment of native title only a subdivision C area agreement may be used.

... On the other hand, if there is a registered body corporate, in respect of all the area the subject of the agreement, then a subdivision A Indigenous land use agreement body corporate agreement is used, or if there is one registered body corporate in relation to all of the area and the agreement does not support to extinguish native title, a subdivision D alternative use agreement may be used. There is no 251A authorisation requirement for subdivision B or D Indigenous land use agreement.

Native Title Act 24CC, if the Federal Court makes a native title determination in respect of an area, it may also determine that the native title is held on trust by a prescribed body corporate. That body corporate then becomes the registered native title corporate ..... Native Title Act ss 56, 57, 193 and 253 definition of registered native title corporate. 23, Native Title Act 24BB(e) or Native Title Act ss 244, 24BC and 25 Native Title Act ss 24DD and 24BC, (a), [Mr Prior] accepts that the word, “identified”, should be inserted into the question so it reads:

Is the making of an Indigenous land use agreement as authorised by all identified native title holders for the purpose of s 203BE(5)(b) and 251A(1)(b) of the Native Title Act 1993, where the process of the decision making that led to the purported authorisation was not agreed to and adopted by all those persons, but in fact, was determined by the representative body?

… I would like to say that you know, this is an abuse of power by the land council. They’ve gone through – they knew that they could not win this through fair and honest election, so they put up barriers to stop ordinary Noongar mob from voting and that’s what happened. If this occurred in a south-east Asian country or an African country, there would be an international outcry. Because it happened on Noongar country, it’s business as usual and yes, as you can see by the affidavit, homeless people, incarcerated people, people with children and the sick elders unfit to travel weren’t given that opportunity and the whole process from the start, the meetings were stacked. It was just barrier after barrier, and there was no need for that. This is such an important an agreement that, you know, we could’ve had everyone voting and people weren’t properly informed and now Noongars who did vote yes, the vast majority of them now realise what they signed up to, want to change their minds and vote no.

CONSIDERATION

The principles

26    The relevant principles on an application for summary judgment are well established and have been referred to by the respondents:

(a)    No reasonable prospects of success – s 31A(2) of the Federal Court Act and r 26.0l(l)(a) of the Federal Court Rules

27    Section 31A was inserted into the Federal Court Act to give the Court greater flexibility in granting summary judgment. Its terms are reflected in r 26.01 of the Federal Court Rules. Save that s 31A(3) is not contained in r 26.01(1), the section and the rule otherwise contain identical tests. Accordingly, the authorities on s 31A are useful in considering r 26.01.

28    The effect of s 31A was to lower the bar for a successful application for summary judgment or summary dismissal from the common law principles stated by Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (at 91) and by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 (at 129-130). In Spencer v Commonwealth (2010) 241 CLR 118 per Hayne, Crennan, Kiefel and Bell JJ (at [53] and [60]), the High Court recognised the radical departure of s 31A from the common law by the introduction of the standard of ‘no reasonable prospects of success’. The majority said, amongst other things, that (at [50]-[53], [58]-[60]):

(a)    consideration of the operation and application of s 31A must begin from consideration of its text. The central idea about which the provisions pivot is ‘no reasonable prospect’. The choice of the word ‘reasonable’ is important;

(b)    effect must be given to the negative admonition in subs (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is ‘hopeless’ or ‘bound to fail’. It is important to recognise that the combined effect of subs (2) and subs (3) is that the inquiry required is whether there is a ‘reasonable’ prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail;

(c)    in this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail;

(d)    with respect to how the expression ‘no reasonable prospect’ should be understood, no paraphrase of the expression would provide a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is ‘no reasonable prospect’. The creation of a lexicon of words or phrases to capture the operation of the statutory phrase should be avoided;

(e)    in many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described as ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’. But none of those expressions should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A;

(f)    rather, full weight must be given to the expression as a whole. The Court may exercise power under s 31A if, and only if, satisfied that there is ‘no reasonable prospect’ of success; and

(g)    the power to dismiss an action summarily is not to be exercised lightly.

29    Other principles that have been identified in relation to s 31A include that:

(a)    a reasonable prospect of success is one which is real, not fanciful or merely arguable: Rogers v Assets Loan Co Pty Ltd (2008) 250 ALR 82 per Logan J (at [41]), cited in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 per McKerracher J (at [3]), though this must now be read with Spencer (at [58]-[60]);

(b)    there will be no prospect of success in circumstances where there is a defect in the pleadings which cannot be cured: “Sam Hawk” v Reiter Petroleum Inc (2016) 246 FCR 337 per Kenny and Besanko JJ (at [269]), cited in Buurabalayji (at [3]);

(c)    an application for summary dismissal is likely to succeed where the applicant’s success in the principal proceedings relies upon a question of fact that can truly be described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, as a general principle, an application for summary dismissal is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined between the parties: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 per Reeves J (at [47]);

(d)    similarly, as a general principle, the moving party on an application for summary dismissal is likely to succeed if it is able to demonstrate to the Court that the applicant’s success in the principal proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant’s success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority: Cassimatis (at [ 48]); see also: Luck v University of Southern Queensland [2008] FCA 1582 per Logan J (at [14]-[15]): s 31A is amenable to resolving straightforward questions of law; SK Foods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543 per Flick J (at [115]): summary judgment may still be appropriate if a question raised is of some complexity; McAleer v University of Western Australia (No 3) (2008) 171 FCR 499 per Siopis J (at [39] and the cases therein cited): s 31A permits dismissal of a proceeding where an inquiry into the merits of the issues of law demonstrates the arguments are insufficiently strong to warrant the matter going to trial;

(e)    a Court should be particularly cautious about ordering summary determination where proceedings involve questions of fact and law, or mixed questions of fact and law, as these combinations usually give rise to some complexity that would require a full hearing. In such circumstances the moving party, as a general principle, would need to show a substantial absence of merit on either of the question of fact or law concerned, or on the mixed question: Cassimatis (at [49]); and

(f)    if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Gordon J (at [127]), cited in Buurabalayji (at [3]). See also Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 per Gilmour J (at [6]).

(b)    No reasonable cause of action disclosed – r 26.01(1)(c) of the Federal Court Rules

30    The Court may also enter judgment against a party if no reasonable cause of action is disclosed.

31    A claim for relief will be summarily dismissed as disclosing no reasonable cause of action only where it is so obviously untenable that it cannot possibly succeed: SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 per Weinberg J (at [29] and the cases therein cited); see also Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192 per Markovic J (at [21]), in relation to the similarly worded power in r 16.21(1)(e) to strike out a pleading because it discloses no reasonable cause of action. This is more stringent than ‘no reasonable prospect’ of success: Practice & Procedure: High Court and Federal Court of Australia (LexisNexis Australia) (at Service 266) [r 26.01.40].

32    The following principles have been stated in relation to the similarly worded power to strike out all or part of a pleading under r 16.21(1)(e) Federal Court Rules on the ground that the pleading ‘fails to disclose a reasonable cause of action’: Winters v Fogarty [2017] FCA 51 per Bromberg J (at [11]), quoting Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325 per Perram, Dodds-Streeton and Griffiths JJ (at [43]):

(1)    A ‘reasonable cause of action’ means one with some chance of success if regard be had only to the allegations in the pleadings relied upon by the claimant; in such a case, the claim cannot be struck out: Davey v Bentinck [1893] 1 QB 185;

(2)    The mere fact that the case appears to be a weak one is not of itself sufficient to justify the striking out of the action: cf Wenlock v Moloney [1965] 2 All ER 871;

(3)    Normally, the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect: cf Hodson v Pare [1899] 1 QB 455;

(4)    It goes without saying that if a substantial case is involved in the claim, the power to strike out cannot be exercised; and

(5)    Where a point of law has to be decided, and the judge is satisfied that this can be done by him appropriately, thereby avoiding the necessity of, and expense in going to trial, he is entitled to determine the point: cf Williams & Humbert v W & H Trade Marks [1986] 1 All ER 129.

33    Proceedings dismissed pursuant to r 26.01(1)(c) of the Federal Court Rules for not disclosing a reasonable cause of action include:

(a)    where the originating application is not accompanied by pleadings, affidavits or submissions, and simply makes ‘bare demands’ without articulating the legal bases for the claims: Sullivan v North West Crewing Pty Ltd [2016] FCA 1130 per McKerracher J (at [33]-[34]); and

(b)    where pleadings consist of ‘scandalous, conclusory allegations, with no attempt to plead any material facts upon which the allegations are made and which raise no reasonable cause of action’: Kimber v Owners Strata Plan No 48216 [2016] FCA 1090 per Perry J (at [72]).

(c)    Frivolous or vexatious or an abuse of the process of the Court – r 26.01(1)(b) and r 26.01(1)(d) of the Federal Court Rules

34    The Court may also order that judgment be given against another party because the proceeding is frivolous or vexatious or an abuse of the process of the Court.

35    The expressions ‘scandalous’, ‘vexatious’ and ‘frivolous’ can be used either separately, or in conjunction, or interchangeably, with the expression ‘abuse of process of the court’: Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728 per Reeves J (at [9]).

36    A matter is ‘frivolous and vexatious’ where the ‘cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the court’: Geneva Laboratories Ltd v Nguyen (2014) 110 IPR 295 per Gleeson J (at [56]), quoting Norman v Matthews (1916) 85 LJKB 857 (at 859).

37    In relation to the term ‘frivolous’:

(a)    a matter that is ‘frivolous’ may be described as one that is ‘without substance or groundless or fanciful’: Crocker per Reeves J (at [9]), citing Pickering v Centrelink [2008] FCA 561 per McKerracher J (at [27]); MCG Quarries Pty Ltd v Beach [2017] FCA 1601 per Davies J (at [4]);

(b)    a proceeding will be ‘frivolous’ where, despite whatever attempts are made to discern a cause of action in the case, it is still not arguable: Pickering per McKerracher J (at [27]), referring to NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 434 (at [16]-[22]); and

(c)    ‘frivolous’ may also describe a situation where a party is trifling with the Court or wasting the Court’s time: Crocker per Reeves J (at [9]), citing Chaffers v Goldsmid [1894] 1 QB 186.

38    In relation to the term ‘vexatious’:

(a)    a ‘vexatious’ proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose. ‘Vexatious’ might also describe proceedings that are seriously and unfairly burdensome, prejudicial or damaging: Crocker per Reeves J (at [9]);

(b)    proceedings may also be described as ‘vexatious’ where they impose on a respondent party an unnecessary injustice in the form of a burden other than, and additional to, the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy: Dowling v John Fairfax Publications Pty Ltd (2007) 169 IR 201 per Cameron FM (at [83]);

(c)    a proceeding is to be regarded as ‘vexatious’ where:

(i)    it is instituted with the intention of annoying or embarrassing the person against whom the proceeding is brought; or

(ii)    it is brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which it gives rise; or

(iii)    irrespective of the motive of the litigant, the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless: Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 282 ALR 56 per Bromberg J (at [14]-[15]), applying Von Reisner v Commonwealth (2009) 177 FCR 531 per Siopis, Cowdroy and Reeves JJ (at [27]); and

(d)    ‘vexatiousness’ is a quality of the proceeding rather than a litigant’s intention, so that the question is not whether the proceedings have been instituted vexatiously but whether the legal proceedings are in fact vexatious: Rana v Commonwealth [2013] FCA 189 per Mansfield J (at [43]).

39    The power to dismiss a proceeding for abuse of process is ‘an exceptional power which ought to be sparingly exercised and only in exceptional cases’ Geneva Laboratories per Gleeson J (at [58]).

40    Proceedings may be an abuse of process for the purposes of r 26.01(1)(d) where the proceeding is brought for a collateral or illegitimate purpose. In those circumstances, the essential question is whether or not the proceedings, and the particular claims made in them, are genuinely intended to be determined in the proceedings: Geneva Laboratories per Gleeson J (at [57]).

41    Proceedings may also be an abuse of process if they have no real prospect of resulting in a substantial remedy and involve unjustifiable expense and use of judicial resources: Geneva Laboratories per Gleeson J (at [57]).

42    An abuse of process may arise in circumstances including:

(a)    where the proceedings can be clearly seen to be foredoomed to fail: Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ), adopted in Rana per Mansfield J (at [46]);

(b)    where the court in which the proceedings are instituted is, in all the circumstances, clearly an inappropriate forum: Walton v Gardiner per Mason CJ, Deane and Dawson JJ (at 393), adopted in Rana per Mansfield J (at [46]); and

(c)    where, notwithstanding that the circumstances do not give rise to an estoppel, the continuance of the proceeding would be unjustifiably vexatious and oppressive for the reason that it seeks to litigate anew a case which has already been disposed of by earlier proceedings: Walton v Gardiner per Mason CJ, Deane and Dawson JJ (at 393), adopted in Rana per Mansfield J (at [46]).

Application of legal principles

43    I accept the respondents’ submissions that the relief sought in the application, in its current form, extends well beyond the relief that it is open to the Court to order on the review application: see s 16(1) of the ADJR Act.

44    It is necessary to consider the grounds which are set out at [1] above.

(a)    Ground 1 - natural justice

45    Ground 1 comprises a bare allegation of a denial of natural justice. The reference to Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 does not advance the matter: Teoh relevantly concerned how ratification of an international convention can give rise to a ‘legitimate expectation’ that administrative decision-makers will act in conformity with the convention, such that procedural fairness should be accorded before departing from that approach: Teoh per Mason CJ and Deane JJ (at 291-292). Further, the law in relation to legitimate expectations has now developed: see Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 per Kiefel, Bell and Keane JJ (at [30]). The ground is unparticularised and lacking in content.

46    However, an apparent indication of the intended subject matter of this ground is conveyed in the contention in the Prior submissions that SWALSC breached the laws of natural justice and procedural fairness in connection with the authorisation meetings that occurred in relation to each of the ILUAs including in relation to the information that was or was not provided, the adequacy of the arrangements made for voting, and who was permitted to vote.

47    Insofar as Mr Prior might therefore be seeking to impugn some alleged decision of SWALSC:

(a)    that is outside the scope of Mr Prior’s application which, as noted earlier, is grounded in an application to review a decision of the Tribunal. The obvious subject of Mr Prior’s application are the Registration Decisions of the Registrar; and

(b)    the Prior submissions do not disclose with any clarity the alleged decision of SWALSC that it might be seeking to impugn, or any arguable basis on which SWALSC may be said to have had a duty to accord natural justice/procedural fairness in relation to any such decision, or any arguable basis as to why, even if SWALSC breached such an alleged duty, it could give rise to any entitlement to relief extending to setting aside the Registration Decisions of the Registrar.

48    Insofar as the Registration Decisions of the Registrar are concerned, Mr Prior did not object to the registration of any of the ILUAs in accordance with s 24CI(1) of the NTA or at all and does not suggest in his submissions that the Registrar denied him or any other person natural justice/procedural fairness in making those decisions. Further, other people who did object were accorded procedural fairness in connection with the making of the Registration Decisions. A process of receiving detailed written submissions on the objection and the delivery of lengthy reasons, which in turn, fell for judicial review all occurred in relation to those other people.

49    As discussed in McGlade, the scheme under Pt 2, Div 3, subdiv C of the NTA for the provision of procedural fairness for persons whose interests may be affected by the making of registration decisions in relation to ILUAs (area agreements) is that:

(a)    first, the Registrar gives notice of the agreement, in accordance with s 24CH(2), to prescribed persons who are not parties to the agreement, s 24CH(l)(a), as well as the public in the ‘determined way’: s 24CH(l)(b). The ‘determined way’ is by advertisement in one or more newspapers that circulate generally throughout the area to which the notice relates or, if the area is an offshore place, the geographical area closest to it that is an onshore place; and in a relevant special-interest publication: s 6(1) and s 6(2)(a) of the Native Title (Notices) Determination 2011 (No. 1) (Cth). A ‘relevant special-interest publication’ means a newspaper or magazine that: (a) caters mainly or exclusively for the interests of Aboriginal peoples or Torres Strait Islanders; and (b) circulates in the geographical area that may be affected by the act or, if the area is an offshore place, the geographical area closest to it that is an onshore place; and (c) is published at least once a month: s 4 of the Native Title (Notices) Determination 2011 (No. 1) (Cth). In accordance with s 24CH of the NTA, the Registrar required the applications to be published in The West Australian and Koori Mail with a publication date of 9 September 2015 and for the four applications that were withdrawn and resubmitted, in The West Australian and Koori Mail with a publication date of 4 October 2017. These are all in evidence;

(b)    secondly, if the application was certified by representative Aboriginal/Torres Strait Islander bodies for the area, any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of s 203BE(5)(a) and s 203BE(5)(b) of the NTA were not satisfied in relation to the certification: s 24CI(1) of the NTA; and

(c)    thirdly, where one or more objections are made under s 24CI within the notice period and are not all withdrawn, the Registrar must decide whether any of the objectors satisfies the Registrar that the requirements of s 203BE(5)(a) and s 203BE(5)(b) of the NTA were not satisfied in relation to the certification of the application by any of the representative Aboriginal/Torres Strait Islander bodies concerned: s 24CK(2)(c). In deciding whether he or she is satisfied as mentioned in s 24CK(2)(c), the Registrar must take into account any information given by objectors and the representative Aboriginal/Torres Strait Islander bodies that certified the application (in this case, SWALSC), and may, but need not, take into account any other matter or things: s 24CK(4).

50    This scheme expressly prescribes what procedural fairness requires in relation to the making of a registration decision: cf Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 per Gaudron J (at [53]).

51    The scheme was undoubtedly followed by the Registrar, as the evidence reveals. In particular, the Registrar provided notice of the ILUAs in accordance with s 24CH: Notice of 2 of the ILUAs with a notification day of 16 September 2015, and of the remaining four ILUAs (being those that were withdrawn and resubmitted) with a notification day of 11 October 2017. Objections were received in relation to the applications for registration of each of the ILUAs, and the Registrar allowed other parties to respond to these objections in writing within a certain time period.

52    Although Mr Prior did not object to the registration of any of the ILUAs pursuant to s 24CI of the NTA, others did. It is evident from the relevant Registration Decisions (at [26]) that the Registrar took the objections into account.

53    Furthermore, all these matters were dealt with and rejected in McGlade. Mr Prior chose not to participate in that decision.

54    This ground has no reasonable prospects of success and discloses no reasonable cause of action.

(b)    Grounds 2-7

55    The respondents contend that grounds 2-7 of Mr Prior’s application (at [1] of these reasons) are incomprehensible.

56    They do not in their terms directly challenge the Registration Decisions or disclose any grounds of review which may be advanced under s 5(1) of the ADJR Act in respect of the Registration Decisions.

57    The submissions do not advance any of these grounds. Nor do any of the affidavits, except for Mr Prior’s.

58    It is to be noted that Mr Prior’s affidavit is a near-identical copy of the affidavit of Mr Frank Peter David, sworn or affirmed on 12 December 2018 and annexed to the affidavit of Ms Mackay affirmed on 23 January 2019 in WAD 546 of 2018, which was to be heard together with this application. It was Mr David, not Mr Prior, who appeared on behalf of the Noongar Land Council in the hearing of Bennell before Wilcox J (at [42], [49], [319] and [889]). To the extent that Mr Prior says it was he in paras 1 and 3, that is not so.

59    There are further difficulties.

60    Insofar as the grounds may be underpinned by assertions of Noongar sovereignty they are misconceived and are not properly open to be advanced in these proceedings, as I discuss below.

61    In respect of ground 4, which appears to call into question the validity of the NTA, in Western Australia v Commonwealth (1995) 183 CLR 373 (the Native Title Act case) per Mason CJ, Brennan, Toohey, Gaudron and McHugh JJ (at 462, 489-490), the High Court held the NTA was a valid law of the Commonwealth under s 51(xxvi) of the Constitution.

62    In respect of ground 5, insofar as the question of any asserted Noongar traditional decision-making process may be sought to be raised, the Registrar’s task under s 24CK of the NTA is confined to considering whether an objecting party has satisfied the Registrar that the requirements of s 203BE(5) of the NTA were (or were not) met. That inquiry is necessarily directed to the bases and contentions made by an objecting party. The Registrar’s decision in each case that there was no such traditional decision-making process was based on the information before her in accordance with s 24CK(4) NTA, and was clearly open.

63    Grounds 6 and 7 also contain scandalous unparticularised allegations of fraud, stealing, criminal conduct, collusion, and extortion.

(c)    Sovereignty

64    Mr Prior states in his application under the heading ‘Details of claim’ that he is aggrieved by the ‘failure’ (sic) because:

  l.    Noongar Nation cultural protocol and framework was not followed.

2.    Did not recognise Noongar Nation Sovereignty Claim, ‘Noongar Claim’, was heard in 2005. The case resulted in an historic judgment in favour of the Noongar People, in which Justice Wilcox of the Federal Court found. See Annexure One.

Annexure One, which purports to be made by Noongar Sovereign Owners, refers to Noongar sovereignty and the applications for registration of the six ILUAs and the ‘Noongar Native Title Settlement’ (the Settlement) generally and the steps leading to the Settlement. It also contains many allegations of a scandalous nature, including unparticularised allegations of 'criminal activity' and fraud by SWALSC, the State and Federal governments, and the Tribunal. None of the allegations in Annexure One directly impugn any of the Registration Decisions.

65    Whilst not explicit on the face of the grounds of Mr Prior’s application, on a broad reading of the grounds (particularly if read in the context of the specified ‘Details of claim’), it appears that the application generally may be underpinned by a challenge to the validity of the acquisition by the Crown of the territory of Western Australia and/or its sovereignty and an assertion instead of Noongar sovereignty or sovereignty of first peoples. For example, while the meaning of the term ‘Noongar Nation cultural protocol and framework’ in ground 5 and item 1 of the details of claim is not apparent from the face of Mr Prior’s application, and it is unclear what Mr Prior means when he asserts in ground 5 that ‘Noongar Nation had decision making process which everyone below did not follow’, it appears that this ground may be premised on a misconceived assertion of illegality under ‘Noongar Sovereign Law’.

66    That Mr Prior’s application for review is in substance underpinned by, and sought to be progressed as a vehicle to agitate, a miscellany of assertions in relation to Noongar sovereignty is, however, made clear when consideration is given to the contents of Mr Prior’s affidavit (including the attachments to it) in response to the present interlocutory application.

67    Mr Prior’s affidavit contains numerous claims of Noongar and/or Aboriginal sovereignty. Those claims in substance include that:

(a)    Aboriginal Sovereignty has never been ceded in Western Australia: (at [5], [10], [11], [12], [14] and [17]);

(b)    the sovereignty of the Noongar people prevailed since the decision of Wilcox J (in Bennell): Bennell involved a trial of a separate question of whether native title existed in the Perth area and, if so, who were the persons who held the native title and what rights and interests it included (at [47]). Wilcox J necessarily considered whether there was a normative system at sovereignty, but did not consider any challenge to the Second Respondent’s acquisition of sovereignty. Wilcox J found (at [84]) that, subject to extinguishment, Noongar people had non-exclusive native title rights (at least) in the Perth Metro area on the basis that there was a Single Noongar society and a single communal title by all Noongar people;

(c)    the acquisition by the Crown of the territory of Western Australia and/or its sovereignty was invalid or illegal, and requires documentary proof: (at [3], [6], [7], [13]); and

(d)    Aboriginal sovereignty in Western Australia is immune from judgments of the Federal Court and from any inconsistent laws: (at [4], [6] and [11]).

68    As to (b) above, Bennell was appealed to the Full Court of this Court. In Bodney v Bennell, the Full Court (Finn, Sundberg and Mansfield JJ) found that Wilcox J had erred in departing from the principles established in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, and that the claimants were required to prove additional matters (at [97] and [187]). The separate question was referred back to the docket judge. The history of this litigation formed the background to the negotiation of the Settlement. As to the remaining points, the acquisition of sovereignty over a territory is an act of state, the validity of which is not justiciable in municipal courts (Coe v Commonwealth (1979) 24 ALR 118 per Gibbs J, with whom Aickin J agreed (at 138)) and where Jacobs J said (at 132-133):

The proposed amended statement of claim seeks to raise a number of issues which can be regarded separately. The first part is apparently intended to dispute the validity of the British Crown's and now the Commonwealth of Australia's claim to sovereignty over the continent of Australia in the face of sovereignty alleged to be possessed by the Aboriginal nation. Paragraphs 2A and 3A are in much the same form as the original statement of claim but the word "wrongfully" has been added, thus disputing the validity of the Crown's proclamations of sovereignty and sovereign possession. These are not matters of municipal law but of the law of nations and are not cognisable in a court exercising jurisdiction under that sovereignty which is sought to be challenged. As such, they are embarrassing and cannot be allowed. I would therefore strike out of the proposed amendments the word "wrongfully" where it appears in pars. 2A and 3A. I would also strike out (or, strictly, refuse to allow) par. 3B. Paragraph 3C suffers from the same defect and so far as it states the coming into existence of the Commonwealth of Australia it is unnecessary; and the same is true of par. 3D. Paragraph 8A appears also to be directed to the question whether under the law of nations Australia was terra nullius in 1770 and 1788. Further, it seeks to impugn the proclamations taking possession of New South Wales on behalf of the British Crown. This is not permissible in a municipal court.

It follows that such a claim cannot be properly advanced in these proceedings and an allegation that the Crown’s acquisition of sovereignty over Western Australia is invalid cannot form the basis of any form of action: Mabo v Queensland (No.2) (1992) 175 CLR 1 per Brennan J (at 31-32); Native Title Act case per Mason CJ, Brennan, Toohey, Gaudron and McHugh JJ (at 422). Nor can any allegation that the Noongar people or any other group of Aboriginal persons continue to enjoy sovereignty: Coe v Commonwealth (1993) 118 ALR 193 per Mason CJ (at 200).

69    Further, the manner by which the Crown acquired sovereignty in Western Australia was considered and determined by the High Court in the Native Title Act case, (at 433). Copies of key documents in relation to the manner of acquisition of sovereignty, as referred to in the Native Title Act case (at 423-429), are contained in the Mills Affidavit which confirms that the Colony of Western Australia and the Colony of New South Wales were both established pursuant to the expanded notion of ‘terra nullius’ that underpinned the expansion of Empire and led the courts of the time to treat the country as if it were ‘desert uninhabited’: (at 431-433). The High Court’s analysis of the effect of acquisition of sovereignty in Mabo therefore applies equally to Western Australia: (at 433).

70    These settled propositions are not affected by the Pacific Islanders Protection Act 1875 (UK) (1875 Act) or the Pacific Islanders Protection Acts 1872 (UK) to which Mr Prior refers. Mr Prior does not refer to these Acts in his Submissions or in the body of his affidavit, but they are reproduced at pp 223-237 in Annexure 6 of Mr Prior’s affidavit. The effect of s 6 and s 7 of the 1875 Act was to extend the Crown’s authority to British subjects living in the Pacific islands, while preserving the rights of non-British subjects. These sections said nothing about the status (sovereign or otherwise) of indigenous peoples in Australia, where the Crown had already acquired sovereignty by the time the Acts were passed. Section 6 expressly did not apply to places that were ‘within Her Majesty’s dominions’, such as the colonies of Australia: see Walker v South Australia (No 2) (2015) 215 FCR 254 (at [53]-[56]).

71    As to sovereignty, in Love v Commonwealth of Australia ; Thoms v Commonwealth of Australia [2020] HCA 3, published on 11 February 2020, following the submissions filed for the respondents and well after the submissions filed by the applicant, the members of the High Court expressed the following views which preclude any possibly successful argument by Mr Prior:

Kiefel CJ (at [25]):

Matters of proof may be put to one side. There is a more fundamental difficulty which arises from the plaintiffs’ argument. It is that the legal status of a person as a “non-citizen, non-alien” would follow from a determination by the Elders, or other persons having traditional authority amongst a particular group, that the person was a member of that group. To accept this effect would be to attribute to the group the kind of sovereignty which was implicitly rejected by Mabo [No 2] – by reason of the fact of British sovereignty and the possibility that native title might be extinguished – and expressly rejected in subsequent cases.

(Emphasis added, citations omitted.)

Gageler J (at [102]):

Australian courts before and after Mabo v Queensland [No 2] (“Mabo”), as well as in the reasoning in Mabo itself, have consistently rejected the existence of Aboriginal or Torres Strait Islander sovereignty. That rejection has meant that, unlike the “Indian Tribes” recognised in the Constitution of the United States, Aboriginal and Torres Strait Islander societies have never been treated constitutionally as “distinct political societies” or as “domestic dependent nations” the members of which have owed “immediate allegiance to their several tribes”.

(Emphasis added, citations omitted.)

Keane J (at [161] and [199]-[201]):

161    Aboriginal persons living in Australia at or after British settlement were, like others present or born here, subject to English law as the law of the land. In Mabo v Queensland [No 2], Brennan J, with whom Mason CJ and McHugh J agreed, said that “the law of England was not merely the personal law of the English colonists; it became the law of the land, protecting and binding colonists and indigenous inhabitants alike and equally”.

…

199    Political sovereignty is not an incident of native title. Indeed, the recognition of native title in Mabo [No 2] proceeded squarely on the footing that sovereignty reposes elsewhere than in the holders of native title, and that native title remains vulnerable to the exercise of sovereign power.

200    The assertion of a claim to sovereignty has been rejected on the few occasions on which it has been articulated. Thus, in Coe v The Commonwealth, Mason CJ said:

“Mabo [No 2] is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are ‘a domestic dependent nation’.”

201    Similarly, in Yorta Yorta Aboriginal Community v Victoria, Gleeson CJ, Gummow and Hayne JJ said:

“[W]hat the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty and ... that is not permissible.”

(Emphasis added, citations omitted.)

Nettle J (at [266]-[267]):

266    At, and in the century after, the acquisition of sovereignty, imperial legislation, judicial decisions, colonial instruments and professional opinion proceeded on the basis that the territory of the Australian colonies was not acquired from an existing sovereign by conquest or cession but rather was settled and thus received English law (even if not immediately). In the result, it is not now open to this Court to doubt that conclusion.

267    Yet, although English law was conceived of as having been carried by the settlers with them as their “birthright”, that “invisible and inescapable cargo ... fell from their shoulders and attached itself to the soil on which they stood” and it became, at least in theory, “the law of the land, protecting and binding colonists and indigenous inhabitants alike and equally” Thus, the early Governors of New South Wales were instructed to punish crimes against Aboriginal people, and Governor Hunter reported, with reference to the trial of five settlers for the murder of Aboriginal persons before the Court of Criminal Jurisdiction in 1799, that “the natives of this country were to be held as a people now under the protection of His Majesty’s Government”. The same Court also tried Aboriginal persons charged with crimes against settlers, and, after initial doubts, its successor, the Supreme Court of New South Wales, exercised jurisdiction over crimes committed between Aboriginal persons; significantly on the basis that this was necessary to provide “sanctuary to them”. Furthermore, as Brennan J noticed in Mabo [No 2], if “the subjects of a conquered territory and of a ceded territory became British subjects, a fortiori the subjects of a settled territory must have acquired that status”, since, ex hypothesi, they could not have owed allegiance to any other sovereign. Accordingly, as this Court has confirmed on several occasions, Aboriginal persons undoubtedly remain subject to, and protected by, the system of law in Australia.

(Emphasis added, citations omitted.)

Gordon J (at [356]):

Recognition of Indigenous peoples as a part of the “people of Australia” is directly contrary to accepting any notion of Indigenous sovereignty persisting after the assertion of sovereignty by the British Crown. Recognition of Indigenous peoples as part of the “people of Australia” denies that Indigenous peoples retained, or can now maintain, a sovereignty that is distinct or separate from any other part of the “people”.

(Citation omitted.)

72    In addition to all the other difficulties identified in Mr Prior’s proceedings, it is not open to him to rely upon Noongar sovereignty to support his claims.

CONCLUSION

73    None of the grounds in Mr Prior’s application disclose any issues of law or fact that should be decided at trial. The Court will exercise its discretion to summarily dismiss the whole of Mr Prior’s application with costs.

Associate:

Dated:    10 June 2020

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