Federal Court of Australia

Harkin on behalf of the Nanatadjarra People v State of Western Australia (No 2) [2021] FCA 3

ORDERS

THE COURT ORDERS THAT:

1.    The native title determination application filed on 7 July 2017 be summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2.    The interlocutory application filed on 3 November 2020 be dismissed.

3.    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

GRIFFITHS J:

Introduction

1    There are two interlocutory applications in this proceeding, WAD348/2017 (Harkin on behalf of the Nanatadjarra People and State of Western Australia) (Nanatadjarra claim). The first interlocutory application was filed on 20 October 2020 (Nangaanya-ku application) by certain named applicants in proceeding WAD460/2018 (Dennis Forrest & Ors on behalf of the Nangaanya-ku native title claim group and State of Western Australia) (Nangaanya-ku applicant). The Nangaanya-ku applicant is a respondent in WAD348/2017, which concerns an application for a native title determination that overlaps with an application for a native title determination made in WAD460/2018. The Nangaanya-ku applicant seeks the following orders:

(a)    dismissal of the native title determination application in WAD348/2017 under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act);

(b)    alternatively, the Nanatadjarra claim be struck out under s 84C(1) of the Native Title Act 1993 (Cth) (NT Act); and

(c)    an order for the removal from the Court file and return of the notice of acting – appointment of lawyer, to the solicitor acting for the applicant in the Nanatadjarra claim.

2    The applicant in the Nanatadjarra claim (Nanatadjarra applicant) raised a preliminary issue concerning the Nangaanya-ku application. It claimed that the Nangaanya-ku application was not properly brought for the following two reasons:

(a)    the solicitors acting for the Nangaanya-ku applicant (Central Desert Native Title Service Ltd (CDNTS)) lack standing as a representative body to bring the dismissal and strike-out applications; and

(b)    the lack of authorisation for CDNTS to bring the application.

3    In the events that occurred, the Nanatadjarra applicant did not press for any relief in respect of these claims.

4    The second interlocutory application was filed on 3 November 2020 by the Nanatadjarra applicant for an order under s 66B of the NT Act with a view to obtaining leave to amend the Form 1 by changing some of the people who comprise the applicant in this proceeding (Nanatadjarra application).

5    Approximately 40 affidavits were filed by the parties in respect of both interlocutory applications.

6    The parties were agreed that the Nangaanya-ku application should be dealt with first (see s 84C(2) of the NT Act). If it is upheld, the Nanatadjarra application becomes moot. This is because, if the Nanatadjarra claim is summarily dismissed for lack of authorisation, the Form 1 cannot be amended in the manner sought by the applicant in that proceeding.

7    For the following reasons, the Nanatadjarra claim should be summarily dismissed because there are no reasonable prospects of the Nanatadjarra applicant establishing that the Nanatadjarra claim was properly authorised within the meaning of ss 61(1) and 251B of the NT Act. It necessarily follows that there is no need to consider the merits of or determine the Nanatadjarra application under s 66B. The interlocutory application filed on 3 November 2020 will be dismissed.

8    It is convenient now to turn to the Nangaanya-ku application to have the Nanatadjarra claim summarily dismissed or struck out.

Relevant legal principles summarised

(i) Summary dismissal or strike out

9    As noted, in seeking summary dismissal, the claimant relies on s 31A(2) of the FCA Act. Alternatively, it relies upon s 84C(1) of the NT Act to have the proceeding struck out. The fundamental underlying issue in both cases is whether the Nanatadjarra claim has been validly authorised.

10    Section 31A(2) of the FCA Act is as follows:

31A    Summary judgment

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

11    Sub-section 84C of the NT Act provides:

84C    Striking out applications for failure to comply with requirements of this Act

Strike out application

(1)    If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.

Note:    The main application may still be amended even after a strike out application is filed.

Court must consider strike out application before other proceedings

(2)    The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1).

Federal Court Chief Executive Officer to advise Native Title Registrar of application etc.

(3)    The Federal Court Chief Executive Officer must advise the Native Title Registrar of the making of any application under subsection (1) and of the outcome of the application.

Other strike out applications unaffected

(4)    This section does not prevent the making of any other application to strike out the main application.

12    The general legal principles guiding the exercise of the Court’s power under s 31A(2) of the FCA Act are well known. It is convenient to reproduce McKerracher J’s helpful analysis and description of the principles in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 at [3] (with particular reference to summary dismissal being sought by a respondent party, as is the case here):

Without reference to all the well-known authorities, the parties agree that it is well established that the Court may give judgment for a defending party in relation to the whole or any part of a proceeding where the Court is satisfied that the prosecuting party has no reasonable prospects of successfully prosecuting the proceeding or a part of the proceeding. Further:

•    the claim need not be hopeless or bound to fail for it to have no reasonable prospects of success: s 31A of the Federal Court Act;

•    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]);

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

•    s 31A is amenable to resolving straightforward questions of law: Luck v University of Southern Queensland [2008] FCA 1582 per Logan J (at [16]). However, summary judgment may still be appropriate if a question raised is of some complexity: SK Foods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543 per Flick J (at [115]);

•    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]);

•    it is clear that the legislature’s intention in enacting s 31A was to lower the bar for obtaining summary judgment, including summary dismissal, below that fixed by previous authorities: Spencer v Commonwealth of Australia (2010) 241 CLR 118 per Hayne, Crennan, Kiefel and Bell JJ; Jefferson Ford per Gordon J (at [127]);

•    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: McAleer v University of Western Australia (No 3) (2008) 171 FCR 499 per Siopis J (at [39] and the cases therein cited);

•    summary dismissal will not apply to ‘a real question of law that is serious, important or difficult, involves conflicting authority, or is apparently arguable yet novel’: Nichol v Discovery Africa Ltd (2016) 343 ALR 594 per Greenwood, McKerracher and Moshinsky JJ (at [134]);

•    the moving party bears the onus of persuading the Court the application has no reasonable prospects of success. The assessment of whether a proceeding has no reasonable prospects of success necessitates the making of a value judgement in the absence of a full and complete factual matrix and argument, with a result that the provision vests a discretion in the Court. That discretion includes whether to deal with the motion at once or at some later stage in the proceedings, when the legal and factual issues have been more clearly defined: Kimber v The Owners of Strata Plan No 48216 [2017] FCAFC 226 per Logan, Kerr and Farrell JJ (at [62]) quoting with approval Eliezer v University of Sydney (2015) 239 FCR 381 per Perry J (at [37]);

•    despite the threshold for summary dismissal having been lowered, it must still be exercised with caution. The power is not to be exercised lightly: Spencer v Commonwealth per Hayne, Crennan, Kiefel and Bell JJ (at [60]);

•    the Court does not, in such an application, conduct a ‘mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial’. Rather, it ‘requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial’: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 per Reeves J (at [46]); and

•    each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant facts and circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect materials available to the Court for considering the application, for example, where the pleadings have been exchanged, or discovery of documents has occurred: Cassimatis per Reeves J (at [46]).

13    Particular caution needs to be exercised in determining whether summary dismissal should be granted in circumstances where there are factual disputes and the evidence is not in its final form (see Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; 236 ALR 720 at [43]-[45] per Rares J).

14    The need for caution before dismissing an action summarily was emphasised by the Full Court in Danthanarayana v Commonwealth of Australia [2016] FCAFC 114 at [4] (see also Trkulja v Google LLC [2018] HCA 25; 263 CLR 149 at [22] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ):

… to summarily dismiss a proceeding, and thereby preclude a person from having their case determined on its merits at a final hearing, is a serious step taken only with great care and if it is possible to conclude with confidence that there is no reasonable prospect of success; this is so despite the fact that under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the Court Act) the power to summarily dismiss a proceeding is not dependent on the case being “hopeless” or “bound to fail” for it to have no reasonable prospect of success (Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [17]-[26]).

15    Turning now to s 84C of the NT Act, it is unnecessary to summarise the relevant principles because I find that the Nanatadjarra claim should be summarily dismissed under s 31A(2) of the FCA Act.

(ii) The requirement of authorisation

16    Section 13(1) of the NT Act provides that an application may be made to the Court for a determination of native title in relation to an area for which there is no approved determination of native title. Who may apply for a determination of native title is dealt with in s 61(1), which contains a table, the relevant part of which states:

Persons who may make application

(1)    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, provided the person or persons are also included in the native title claim group; or

  Note 1:    The person or persons will be the applicant: see subsection (2) of this section.

Note 2:    Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group.

17    Sub-sections 61(4) and (5) should also be noted. The former provision requires that a native title determination application must name the persons (or otherwise describe them sufficiently) who constitute the native title claim group and authorised the making of the application. The latter provision requires that an application for native title determination be in the prescribed form, be filed in the Federal Court, contain such information in relation to the matters sought to be determined as is prescribed and be accompanied by any prescribed documents and any prescribed fee.

18    Section 62 identifies information which must be contained in a claimant application or accompany such an application. It provides that a claimant application must be accompanied by an affidavit sworn by the applicant which provides inter alia “that the applicant is authorised by all persons in the native title claim group to make the application and to deal with matters arising in relation to it”. A note to that provision provides that s 251B states what it means for the applicant to be authorised by all the persons in the native title claim group (noting ss 13(3) and 15AB(2) of the Acts Interpretation Act 1901 (Cth) as to the use of notes in statutory interpretation).

19    As noted, s 251B deals with what it means for a person or persons to be “authorised” by all of the persons in the native title claim group. Section 251B is in the following terms:

Authorising the making of applications

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)    where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

20    The term “native title claim group”, as found in both the Table in s 61(1) and also in s 251B, is defined in s 253. In relation to a claim for a determination of native title made to the Federal Court, the definition is somewhat circular and means “the native title claim group mentioned in relation to the application in the table in subsection 61(1)”.

21    The well settled principles concerning authorisation and the proper construction of s 61(1) were helpfully summarised by Bromberg J in Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308; 369 ALR 1 at [181]-[182] (emphasis in original):

181.    … First, the accepted construction of s 61(1) is that “the authorisation contemplated is not of the persons who claim to be the native title holders, but is rather that of the actual holders of native title”: Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643 at [913] (Finn J); and see Wongatha at [72], [1188]-[1189] and [1216] (Lindgren J); and Reid v State of South Australia [2007] FCA 1479 at [28] (Finn J).

182.    Second and relatedly, a native title determination application does not comply with s 61(1) unless “all” of the native title holders have authorised the application. As Jagot J said in Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638 at [34]:

Prevailing orthodoxy is that a mere part or sub-set of the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed cannot authorise the making of a native title claim because they cannot, by definition, comprise all such persons (for example, Risk v National Native Title Tribunal [2000] FCA 1589 at [29]-[30] and [60] and at [15]-[22] and the cases cited in those paragraphs).

See further Brown v State of South Australia [2009] FCA 206 at [19]-[20] (Besanko J) and the authorities there cited. The observations of Besanko J in Brown have been extensively cited in the authorities including: Laing v State of South Australia (No 2) [2012] FCA 980 (Mansfield J), Rita Augustine v State of Western Australia [2013] FCA 338 (Gilmour J), Collins on behalf of the Wongkumara People v Harris on behalf of the Palpamudramudra Yandrawandra People [2016] FCA 527 (Jagot J) and Velickovic v State of Western Australia [2012] FCA 782 at [32] (McKerracher J).

22    It is desirable to say something more about Besanko J’s decision in Brown v State of South Australia [2009] FCA 206, to which Bromberg J referred. Brown contains a useful discussion of the test to be applied under s 84C(1) of the NT Act. In addition, it contains a helpful summary of relevant legal principles applying to authorisation, particularly at [19]-[21]:

19.    A native title determination application does not comply with s 61 of the NTA if it is clearly established that it is not made by a native title claim group. A native title claim group is a group consisting of all the persons who, according to their traditional laws and customs, had the common or group rights or interests comprising the particular native title claimed. These propositions follow from the provisions of ss 61(1) and (4), 251B and 253 of the NTA and have been stated in the cases: Risk v National Native Title Tribunal [2000] FCA 1589 at [60]-[61] per O’Loughlin J; Tilmouth v Northern Territory of Australia (2001) 109 FCR 240 (“Tilmouth”) at 241-242 [4] per O’Loughlin J; Landers v State of South Australia (2003) 128 FCR 495 (“Landers”) at 504 [33] per Mansfield J; Dieri People v State of South Australia (2003) 127 FCR 364 (“Dieri People”) at 377-378 [55]-[56] per Mansfield J; McKenzie at 223 [41] per Finn J; Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 (“Hillig”) at [60] per Bennett J; Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 9) (2007) 238 ALR 1 at 230-232 [1206]-[1217] per Lindgren J; Reid v State of South Australia [2007] FCA 1479 (“Reid”) at [27] per Finn J; Kite v State of South Australia [2007] FCA 1662 (“Kite”) at [21]-[22] per Finn J.

20.    The propositions have been applied most commonly in circumstances where it is clear that the claimant group is a sub-group or sub-set or part of a native title claim group. Cases such as Tilmouth, Landers, Dieri People, McKenzie and Reid are all cases in which it was clear that the claim group was not a native title claim group. The cases also make it clear that caution needs to be exercised before concluding on a strike-out application that a claim group is a sub-group, sub-set or part of a native title claim group: Colbung v The State of Western Australia [2003] FCA 774 at [23]-[26] per Finn J; McKenzie at 223 [41] per Finn J; Hillig at [60] per Bennett J; Reid at [28] per Finn J; and Kite at [22] per Finn J. For example, it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group may itself constitute a native title claim group: Hillig at [60] per Bennett J (see also the obiter observations of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [41]; Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) [3.130].

21.    It is clear from the terms of s 61(1) of the NTA that the applicant to a native title determination application must be authorised by all the persons comprising the native title claim group. Section 251B of the NTA provides for the manner in which such an authorisation is to be given…

23    In Brown at [24], Besanko J observed that the issue of authorisation may make it “necessary to consider the notice given of the meeting in order to determine if all members of the claim group were given a reasonable opportunity to participate in the decision-making process”. His Honour referred to the following observations of French J in Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [45] where, in the context of an application under s 66B of the NT Act, French J said:

In relation to the present motions I regret to say that the evidence and the processes adopted were not adequate to meet the conditions necessary for an order under s 66B. For each of the applications there is a defined native title claim group which is set out earlier in these reasons. The connection between those who attended the various meetings referred to and the respective native title claim groups was not established either in respect of notification nor, more importantly, in respect of attendance. The native title claim groups are defined in each case by reference to apical ancestors and biological descendants of those persons and persons adopted by them. The advertisements and notices did not refer to the relevant native title claim groups except by use of the generic title of the applications in question. The membership of the native title claim group by those who attended each meeting was not demonstrated. Rather it was reported as an asserted self-identification. Mrs Morich made some statements from the bar table doubting the representativeness of those who attended at the Southern Noongar meeting. Her statements might be right or wrong. They were not evidence. But my inability to make any judgment about them illustrates the inadequacy of the evidence as it presently stands for the purposes of a s 66B application. And even if it be accepted that each of the members who attended each of the meetings was a member of the relevant native title claim group, it is not established that they were in any sense representative of the various components of the native title claim group concerned.

24    I shall now apply these legal principles to the relevant facts relating to the Nanatadjarra claim.

Consideration and determination

25    I consider that the Nanatadjarra claim should be summarily dismissed for the following primary reasons:

(a)    the Nanatadjarra applicant has not discharged its evidentiary onus in this summary dismissal proceeding of proving, on the balance of probabilities, that its decision-making process is traditional or that the claim has been authorised by the whole “native title claim group”, being all the persons who hold native title rights in the application area; and/or

(b)    on the basis of the available evidence, the Nangaanya-ku applicant has established that there are no reasonable prospects of the Nanatadjarra applicant establishing that there are no persons who hold native title rights and interests in the application area beyond those who are included in the current claim group as described in the Nanatadjarra claim.

(a) Nanatadjarra decision-making process

26    As the State of Western Australia contended, the authorisation process relied upon by the Nanatadjarra applicant has not been consistently described. The original Form 1 application and supporting s 62 affidavits suggested that the Nanatadjarra claim group had agreed and adopted a decision-making process under s 251B(b) of the NT Act. That material indicated that there was no traditional decision-making process. Instead, an agreed and adopted decision-making process was relied upon, which was said to involve a process of consultation amongst members of the claim group, with decisions being made either by consensus or by a majority. In an affidavit dated 28 September 2020, Ms Harkin affirmed at [9] that this was the agreed decision-making process.

27    In his affidavit sworn on 15 October 2020 Mr Greg Stubbs (who is currently an applicant and member of the Nanatadjarra claim group and a member of the Nangaanya-ku claim group) disputes that the Nanatadjarra claim group agreed that the will of the majority would prevail if a consensus could not be reached. In this affidavit, Mr Stubbs also states that he “never meant to say that there is no traditional decision-making process that must be followed for decisions about land like native title”. This evidence contradicts what Mr Stubbs said in an earlier affidavit sworn on 10 July 2017. Mr Stubbs was not required for cross-examination.

28    Moreover, and perhaps more significantly, Ms Harkin attests in her affidavit dated 3 November 2020 that the agreed and adopted decision-making process of the Nanatadjarra claim group, which provided the basis for authorisation of the Nanatadjarra claim at authorisation meetings held on 13 February 2016 and 21 May 2016, had changed. She said that she did not understand s 251B until its operation and effect were explained to her recently. It is evident that, having received legal advice, Ms Harkin adopted the position that there was a traditional decision-making process, i.e. a process as described in s 251B(a) of the NT Act.

29    The traditional decision-making process now relied upon is described in Ms Harkin’s affidavit dated 3 November 2020 and in an affidavit of Dr Joseph Rickson sworn on the same day. In essence, that decision-making process is said to be one in which authority to speak for, and make decisions about, Nanatadjarra country rests with acknowledged Elders. Ms Harkin described a process whereby the Nanatadjarra Elders, who each represent and speak on behalf of their family members, make decisions following a process of consultation with their families. She said that such decisions are then binding on their respective family members.

30    A fundamental difficulty with this description is that it is inconsistent with other parts of Ms Harkin’s evidence. That evidence indicates that Ms Harkin regards herself as being able to make decisions on behalf of the Nanatadjarra claim group without any necessary consultation with other Nanatadjarra Elders. So much is apparent from [72(b)] of Ms Harkin’s affidavit dated 3 November 2020. Further confirmation is provided by the fact that Ms Harkin alone signed the Nanatadjarra applicant’s statement of facts and contentions filed on 9 December 2019.

31    Dr Rickson provides an opinion at page 13 of his report that “… traditional laws and customs in decision-making exist, are practised and have been followed”. But nowhere does he clearly describe that process, nor does he explain what he means by “are practised and have been followed”. His report lacks any adequate reasoning process to explain his conclusion. Dr Rickson’s evidence warrants no weight.

32    I am not persuaded that the Nanatadjarra applicant has reasonable prospects of establishing that there was a traditional decision-making process which was followed in authorising the Nanatadjarra claim. The evidence adduced by the Nanatadjarra applicant suffers from numerous relevant inconsistencies and other evidentiary difficulties. I am not satisfied that there is any issue of law or fact on this topic which ought to go to trial. The available evidence does not satisfy me that, on the balance of probabilities, the Nanatadjarra claim group had a traditional decision-making process which was followed when the Nanatadjarra claim was purportedly authorised.

(b) Uncertainty as to who is the Nanatadjarra authorising claim group

33    On the basis of all the available current evidence, there is also considerable uncertainty as to who is the Nanatadjarra authorising group. Initially, it was claimed that that group was the Nanatadjarra claim group which met on 13 February 2016 and 21 May 2016. But the position then changed, possibly in response to difficulties identified by the Native Title Registrar in her decision dated 9 November 2017 to not accept the Nanatadjarra claim for registration. In Ms Harkin’s affidavit dated 3 November 2020, she claims that the authorising group was a group of 12 Nanatadjarra Elders who met on 7 January 2014.

34    As the State contended, inconsistencies of this kind demonstrate “a significant degree of artificiality” on the part of the Nanatadjarra applicant, who appears to have changed its position with a view to avoiding the controversy as to whether the meetings held on 13 February 2016 and 21 May 2016 validly authorised the filing of the Nanatadjarra native title determination application. Ms Harkin described two separate meetings of Elders in her affidavit dated 3 November 2020. The first involved a meeting of 12 Elders on 7 January 2014. The second involved a meeting of 15 Elders on 10 October 2020. Of the 15 Elders who attended the second meeting, only six had attended the first meeting.

35    As the State further pointed out, there is no evidence that the Elders who attended the first or second meetings were representative of all of the persons who comprised the native title holding group.

36    Even if, contrary to the above, it were accepted that there was a traditional decision-making process involving the Nanatadjarra Elders consulting with their respective family members prior to decisions being made, there is no evidence which demonstrates that this decision-making process was followed in either the first or second meetings. In particular, there is no evidence that the Elders who attended either of those meetings engaged in a process of consultation with their respective families.

37    For these additional reasons, the Nanatadjarra applicant has not demonstrated that the Nanatadjarra claim has been authorised pursuant to a traditional decision-making process.

(c) The Nanatadjarra subgroup problem

38    There is an additional and separate fatal problem with the Nanatadjarra claim which is sufficient of itself to have the application summarily dismissed. In brief, a fundamental difficulty which is exposed by the current evidence is that there are persons who hold native title rights and interests in the Nanatadjarra application area who have not been included in the Nanatadjarra claim group description (see Brown at [19] as extracted at [22] above).

39    The Nanatadjarra Form 1 application describes the Nanatadjarra People’s native title rights and interests as being derived through traditional laws and customs, which include “being descended from a parent, grandparent or great-grandparent born on country”. As the State has pointed out, four witnesses have given evidence (which has not been tested by cross-examination) that they have a parent or grandparent who was born in the Nanatadjarra claim area (Mr Harvey Murray, Ms Aubrey Lynch, Mr Elvis Stokes and Ms Marilyn Burton). But none of these persons is described as a member of the Nanatadjarra native title claim group.

40    Ms Harkins’ affidavit dated 3 November 2020 simply highlights this problem. She describes the meeting of 15 Elders on 10 October 2020 when it was decided to replace Mr Greg Stubbs and Mr Robert O’Loughlin as members of the Nanatadjarra applicant. This was achieved by the decision made at that meeting to have removed from the Nanatadjarra claim group two Apical ancestors, being Yourabarou Adelaide and Teeweree Ginger Parker (who are the Apical ancestors from whom Mr Stubbs and Mr O’Loughlin (and others) are descended). According to the Form 1 application, both these Apical ancestors were born in the Nanatadjarra claim area and their descendants have “ritual status” and authority to “speak for country”. This is sufficient to demonstrate that there is a group of persons, including but not limited to Mr Stubbs and Mr O’Loughlin, who have not been included in the Nanatadjarra claim group. Both Mr Stubbs and Mr O’Loughlin provided affidavits. Neither was required for cross-examination.

41    As the Nangaanya-ku applicant pointed out, it is presumably in recognition of this difficulty, that the Nanatadjarra applicant proposes to amend the Nanatadjarra claim by omitting a particular geographical area associated with other Apical ancestors. In my view, the problem cannot be cured by such an amendment in circumstances where the evidence indicates that the Nanatadjarra native title determination application was not properly authorised in the first place. An invalid application cannot subsequently be amended so as to remove the invalidity where the invalidity stems from a central deficiency with the initial authorisation. Contrary to the submission by the Nanatadjarra applicant, I do not consider that its position gains any support from what Lander J said in Williams v Grant [2004] FCAFC 178 at [49]. At [53] Lander J (with whom North and Dowsett JJ agreed) said that s 66B assumes that the current applicant, who is sought to be replaced by proposed amendment, had authority to bring the claim at the time the claim was made. His Honour made clear that the process of amendment provided by s 66B only applies where the current applicant is “no longer authorised” or “has exceeded the authority given to him or her by the claim group”. In my view, the matter is put beyond doubt by Lander J’s observations at [54] where he observed that where a native title determination application has never been properly authorised, the correct procedure is to seek to have the claim struck out under s 84C (or, I would add, seek summary dismissal under s 31A(2) of the FCA Act).

42    This does not deny that the Court may retain a discretion in a particular case not to strike out or summarily dismiss an application which initially was not properly authorised (see, for example, Miller v South Australia (No 2) [2018] FCA 599 at [85] per White J). I am not persuaded that this discretion should be exercised favourably to the Nanatadjarra applicant in the particular circumstances of the present proceeding. I accept the State’s submission that Ms Harkin’s evidence, which contains numerous inconsistencies, “demonstrates a propensity for Nanatadjarra claim group membership to be arbitrarily determined”.

43    For completeness, and in addition to the other problems identified above, I do not accept the Nanatadjarra applicant’s claim that the Nanatadjarra claim was properly authorised by the meetings held on 13 February 2016 and 21 May 2016. As to the first of those meetings, it is unnecessary to determine whether any person holding native title rights and interests in the area the subject of the Nanatadjarra claim (and who ought to have been included in the claim group) was excluded from that meeting. If it had been necessary to do so, however, I would have accepted Mr Stubbs’s evidence, which was to that effect and was admissible in this interlocutory hearing. There is, however, a more simple answer to any reliance upon the meeting held on 13 February 2016. That answer simply is that the minutes of that meeting do not record any formal resolution being passed by the persons present which authorised the making of the Nanatadjarra claim.

44    Turning then to the meeting held on 21 May 2016, whether it be viewed in conjunction with the 13 February 2016 or as a separate meeting in its own right, I do not accept that the resolution passed at that meeting authorising the lodgment of the Nanatadjarra claim meets the relevant legal requirements. As Besanko J stated in Brown at [24], it is necessary to consider the notice given at that meeting with a view to determining if all members of the claim group were given a reasonable opportunity to participate in the decision-making process (see [23] above). There is limited evidence in the present proceeding of the precise terms of the notice which was published preceding the meeting on 21 May 2016. I note, however, that at [191] of the Registrar’s reasons for decision in declining to register the Nanatadjarra claim, it is stated that the “public notice of the May meeting invited only the descendants of the apical ancestors identified in the claim group description, and did not invite other persons to make contact”. This was an important consideration in the Registrar’s decision that the Nanatadjarra applicant was not authorised by all the persons in the native title claim group as required for the purposes of registration by s 190C(4)(b). Her reasons for reaching that conclusion are set out at [172] to [198] of her reasons for decision. Of course, I am not bound by the Registrar’s reasons or findings but I can indicate that, on the basis of the evidence which has been placed before the Court in the present proceeding, those findings and reasons in respect of the issue of authorisation are compelling and I agree with them.

Conclusion

45    For all these reasons, I am not satisfied that the Nanatadjarra applicant has reasonable prospects of establishing that the Nanatadjarra claim was properly authorised. It should be summarily dismissed. Having regard to the significance of the many inconsistencies and deficiencies in the evidence adduced by the Nanatadjarra applicant in its response to the Nangaanya-ku application, I do not consider that there is any issue of law or fact which should go to trial. The inconsistencies and deficiencies are within the Nanatadjarra applicant’s own evidence – this is not simply a case of disputed facts between competing parties. The Nanatadjarra applicant has failed to discharge the evidentiary onus of pointing to some factual or evidentiary issue which makes a trial necessary in circumstances where the Nangaanya-ku applicant has established a prima facie case in support of summary judgment.

46    Necessarily, the Nanatadjarra interlocutory application filed on 3 November 2020 should also be dismissed.

47    Having regard to the Nangaanya-ku applicant’s success in having the Nanatadjarra claim summarily dismissed, it is unnecessary to determine that part of its interlocutory application which seeks relief in respect of the solicitors acting for the Nanatadjarra applicant.

48    There will be no order as to costs.

Associate:

Dated:    18 January 2021

SCHEDULE OF PARTIES