Federal Court of Australia

AC (deceased) v State of Western Australia [2021] FCA 735

ORDERS

THE COURT ORDERS THAT:

1.    The proceedings be summarily dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    In this matter, the first named respondent (the State) applies pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) or, alternatively, r 26.01 of the Federal Court Rules 2011 (Cth) for summary dismissal of the applicant’s case. More particularly, it applies for the whole of the applicant’s amended ‘Native Title Determination Application Claimant Application’ dated 2 July 2013 (Amended Form 1), or the part thereof covered by four indigenous land use agreements (ILUAs) registered on 17 October 2018, to be dismissed on the grounds that there is no reasonable prospect of successfully prosecuting the proceeding. This is said to be because any native title rights or interests which may have existed in relation to the land and waters covered by the Amended Form 1 have been wholly extinguished under the ILUAs pursuant to s 24EB(2) and s 24EBA(3) of the Native Title Act 1993 (Cth).

2    As revealed in the supporting affidavit of Mr Daniel Gorman, from the State Solicitor’s Office, the Noongar/Nyoongar/Nyungar/Nyoongah people are an Aboriginal cultural bloc who are recognised and acknowledged under the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA) (the Noongar Recognition Act) as the traditional owners of land and waters in the South West of Western Australia, from Geraldton on the west coast to Esperance on the south coast. There are between 30,000 and 40,000 Noongar people in Western Australia.

3    The applicant is comprised of persons who are Noongar people and are amongst the respected and acknowledged traditional owners with ties to the Perth metropolitan area and elsewhere in the South West of Western Australia. Many of the persons who are jointly the applicant (including those who are now deceased) have been involved, with others, in prosecuting various native title claims on behalf of the Noongar people, including by giving evidence about relevant Noongar traditional laws and customs to Wilcox J in Bennell v Western Australia [2006] FCA 1243; (2006) 153 FCR 120. In Bennell, his Honour 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] FCAFC 63; (2008) 167 FCR 84.

4    Since Bodney, the State and other parties, including Noongar people who are members of the applicant, also known as the Swan River People #2 claim group (the SRP2 claim group), have engaged in negotiations resulting in the registration of six ILUAs that cover a Settlement Area of over 200,000 square kilometres of the South West of Western Australia. The aim of the ILUAs is to fully and finally resolve all current and future native title claims over the South West, including all compensation liabilities arising from those claims in exchange for a comprehensive package of benefits (the South West Settlement).

BACKGROUND

5    On 1 February 2011, the applicant lodged this claim (the SRP2 Claim) for a determination of native title over an area of South West Western Australia. The persons who comprise the applicant in respect of this claim have also been active members and applicants in various other claims on behalf of Noongar people over differently defined areas of the South West. The procedural history of the SRP2 Claim is set out in Corunna v Native Title Registrar [2013] FCA 372 (at [1]-[6]) where Siopis J said:

1.    The applicant in this proceeding comprises Mr Albert Corunna and six other persons who are members of the applicant of the native title determination claim brought on behalf of the Swan River People. The native title determination application is referred to as the Swan River People # 2 native title determination application. That application was filed with the Federal Court on 1 February 2011. On 15 April 2011, the application was not accepted for registration pursuant to s 190A of the Native Title Act 1993 (Cth).

2    On 17 February 2012, the Court granted the applicant leave to file an amended native title determination application, in terms of a proposed amended application which had been lodged with the Court on 25 November 2011.

3    On 29 May 2012, a delegate of the National Native Title Tribunal Registrar (the Registrar) determined not to accept the amended application for registration pursuant to s 190A(6B) of the Native Title Act. I will, henceforth, refer to the amended application as “the claim”.

4    The claim asserted native title rights and interests over both land and sea. The sea portion of the claim covers an area of 8,774 square km. It includes an area of the sea between the mainland and Garden Island, Carnac Island and Rottnest Island – islands that are only nine nautical miles off the shore of the mainland – and an area which extends into the sea west of Rottnest Island for a further 42 nautical miles. Therefore, the vast bulk of the sea portion of the claim is over the sea west of Rottnest Island. It is this latter aspect of the sea portion of the claim which is at the centre of the controversy in this application.

5    The delegate found that the claim did not meet the statutory conditions set out in ss 190C(3), 190B(5), 190B(6) and s 190B(7) of the Native Title Act. The delegate, on behalf of the Registrar, notified the applicant of her decision pursuant to s 190D(1) of the Native Title Act.

6    On 12 April 2012, the applicant applied to the National Native Title Tribunal (the Tribunal) pursuant to s 190E(1) of the Native Title Act, for the Tribunal to reconsider the claim.

6    The current Amended Form 1 was filed with the Court on 2 July 2013.

7    The claim area is referred to and known as the Swan River People #2 Claim Area (the SRP2 Area). The SRP2 Claim was not accepted for registration, most recently on 11 October 2013, on the basis that it did not satisfy s 190C(3) of the Act.

8    Apart from a small portion of the SRP2 Area that is seaward of the three nautical mile limit, the SRP2 Area is wholly overlapped by the Settlement Area. This small extension of the SRP2 claim area beyond the three nautical mile limit is a function of the mapping of lines between particular co-ordinates. The co-ordinates in the attachments to the Amended Form 1 all fall within the Settlement Area.

The South West Settlement

9    The South West Settlement has been well documented in various decisions. The Settlement is structured by way of six ILUAs. Each ILUA is in almost identical terms, except that it relates to a different native title agreement group and a different agreement area. The area of each ILUA broadly relates to an area covered by one or more of the registered native title claims. Four of the ILUAs are broadly coterminous with the areas of the Ballardong People claim, Gnaala Karla Booja claim, the Whadjuk People claim and the Yued claim, and together they completely overlap the land and waters of the SRP2 Claim to the extent it is landward of the three nautical mile limit.

10    The six ILUAs together comprise the Settlement Area. Between January 2015 and March 2015, authorisation meetings were held for the authorisation of these agreements. For the purposes of the authorisations, the SRP2 claim group members were identified as persons who hold or may hold native title in the four relevant agreement areas. At each of these meetings the people identified as holding native title rights authorised the making of the relevant ILUAs. This has been well documented and litigated: McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238; (2019) 374 ALR 329.

11    On 29 January 2015, AC (deceased), one of the persons who are jointly the applicant, sought a declaration that as a member of the SRP2 claim group, he was entitled to participate in a separate authorisation process with regards to the proposed Gnaala Karla Booja, Yued, Ballardong People and Whadjuk People ILUAs. As to that, Barker J said in Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491; (2015) 235 FCR 40 (at [68]-[69]):

68    In these particular circumstances, there is no right in Mr Corunna, as a member [sic] SRP2 claim group, to separately authorise the proposed ILUAs at this stage of the authorisation and registration process. Thus, the answer to the question that he effectively poses is, no — he is not entitled to a declaration at this stage that he is entitled to separately authorise the proposed ILUAs involving the Gnaala Karla Booja, Yued, Ballardong and Whadjuk.

69    Mr Corunna will have the right, at the time SWALSC applies to register the relevant ILUAs and the Registrar gives notice of the ILUAs, to object on the grounds spelt out in s 203BE(5)(a) and (b) of the NTA, if he so desires.

12    On 8 June 2015, the six South West Settlement ILUAs were each entered into between the State, the South West Aboriginal Land and Sea Corporation (SWALSC) and representatives of all parties who hold or may hold native title rights and interests in each agreement area.

13    On 16 September 2015 and 29 September 2017, the applications to register the ILUAs were notified by the Native Title Register pursuant to s 24CH of the Act and any person claiming to hold native title in relation to land and waters covered by the agreements had an opportunity to object to registration of the ILUAs. The persons who comprised the applicant to the SRP2 claim were amongst those who made objection to the registration of the four relevant ILUAs. The State and SWALSC responded to those objections.

14    On 17 October 2018, the six ILUAs were registered on the Register of Indigenous Land Use Agreements established and maintained under Pt 8A of the Act (the Register). Pursuant to s 24EA(1)(b) of the Act, while the details of an agreement are entered on the Register, an ILUA has effect as if it were a contract among the parties to the agreement, and all other persons holding native title in relation to any of the land or waters in the area covered by the agreement are also bound by the agreement in the same way as the native title group: see Kelly (on behalf of Byron Bay Bundjalung People) v NSW Aboriginal Land Council [2001] FCA 1479 per Branson J (at [19]) and Corunna per Barker J at [48].

15    The ILUAs commenced on the Execution Date of 8 June 2015. By cl 3.2(a) of the ILUAs, the main obligations under the ILUAs (cl 6 and cl 7), relating to the resolution of native title and the provision and payment of compensation by the State, commenced from the Settlement Effective Date. This date was required to be notified by the State to SWALSC once the last of the conditions for commencement of the ILUAs was satisfied. The last condition to be satisfied for commencement of the Settlement contained in the ILUAs was ‘Conclusive Registration’ of all six ILUAs.

16    Conclusive Registration required each of the ILUAs to remain on the Register at the end of a period of 40 business days after the exhaustion or determination of the legal proceedings challenging registration. On 28 January 2021, Conclusive Registration was achieved and the State issued the Settlement Effective Date Notice to SWALSC, confirming the Settlement Effective Date to be 25 February 2021. That Notice is in evidence.

17    By cl 6.2 of each of the ILUAs, the surrender to the State of native title rights and interests in relation to the relevant agreement area was to take place on the date that was 30 business days after the Settlement Effective Date (the Native Title Resolution Date). The term ‘Surrender’ is defined in cl 1.2 of each ILUA to mean the surrender to the State of all native title rights and interests in relation to the agreement area. Clause 6.1 of each of the ILUAs provides that there is agreement and consent to the validation of all Invalid Acts (as defined in the NTA) on and from 11.59 pm on the day before the Native Title Resolution Date.

18    Clause 7 of each of the ILUAs provides for the State to pay compensation in the terms set out in the ILUAs in consideration for the consents mentioned in cl 6 and the release from further compensation in cl 13.

Native Title

19    A consequence of the issuance of the Settlement Effective Date Notice, cl 6.2 of the ILUAs and the provisions of the Act referred to, is that the Surrender Date/Native Title Resolution Date in respect of the six ILUA agreement areas is deemed to be 13 April 2021. It follows that any native title rights and interests as defined in the Act ceased to exist in relation to the land or waters in the Settlement Area on 13 April 2021. From 13 April 2021, and because of the exchange of native title rights for the rights and compensation provided under the South West Settlement, all of the native title determination applications relating to the Settlement Area no longer have reasonable prospects of achieving a determination that native title exists, according to the submissions for the State.

20    In order to finalise the determination of native title within the Settlement Area under cl 6.3 of each ILUA, the parties to those ILUAs have agreed to consent to orders for the making of consent determinations that native title does not exist in relation to the Settlement Area. The representatives of all the applicants for all of the other Noongar claims covering the Settlement Area have indicated that the applicants in those areas are prepared to consent to dismissal of those claims and in the case of WAD 6006 of 2003 (Single Noongar Claim (Area 1)) and WAD 6012 of 2003 (Single Noongar Claim (Area 2)) a determination that native title does not exist over the Settlement Area to the extent those claims are covered by the Settlement Area. The applicant in the SRP2 Claim has not consented to a dismissal of its claim.

21    The State contends that the claim has no reasonable prospects of success against that background and, having regard to the legal principles below.

RELEVANT PRINCIPLES

22    Section 31A(2) of the Federal Court Act relevantly provides that the Court may grant summary judgment where it is satisfied that a party has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding.

23    Section 31A departs radically from the basis upon which earlier forms of provisions permitting 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: Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 per Hayne, Crennan, Kiefel and Bell JJ (at [52]-[53]).

24    The terms of s 31A of the Federal Court Act are reflected in r 26.01 of the Rules. Save that there is no equivalent to s 31A(3) contained in r 26.01, the section and the rule otherwise contain identical tests: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 per Reeves J (at [13]), citing Zippo Manufacturing Co v Jaxlawn Pty Ltd [2011] FCA 1125 per Gordon J (at [20]).

25    Section 31A was inserted into the Federal Court Act to give the Court greater flexibility in granting summary judgment: Clement v Australian Bureau of Statistics [2016] FCA 948 per Katzmann J (at [35]); see also Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 per McKerracher J (at [27]-[29] and the authorities cited therein).

26    The power is discretionary and must be exercised with caution and great care: Spencer per French CJ and Gummow J (at [24]).

27    The Court may exercise power under s 31A of the Federal Court Act if, and only if, it is satisfied that there is ‘no reasonable prospect’ of success: Spencer per Hayne, Crennan, Kiefel and Bell JJ (at [60]).

28    Section 31A(3) relevantly confirms the departure from the previous test, by providing that a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.

29    Thus, as the majority noted in Spencer (at [52] and [58]-[60]), the combined effect of s 31A(2) and s 31A(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.

30    Further, in Cassimatis, Reeves J explains (at [46]) that:

What section 31A requires in this application

… the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, 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. 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. ...

31    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: Cassimatis (at [47]).

32    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] FCAFC 60; (2008) 167 FCR 372 per Gordon J (at [127]), cited in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 per McKerracher J (at [3]); see also Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 per Gilmour J (at [6]).

THE STATE’S SUBMISSIONS

33    These proceedings have been on foot since 1 February 2011, with the applicant seeking a determination for native title over the SRP2 Area under s 61 of the Act.

34    Prior to 13 April 2021, depending on the evidence adduced by the applicant, and subject to evidence of extinguishment, the State concedes that there may have been a reasonable prospect of the applicant successfully prosecuting a claim for a determination of native title over the SRP2 Area. However, that position changed with the authorisation, entry into, registration and settlement effectiveness of the South West Settlement over the Settlement Area. As a result of the South West Settlement, any native title rights and interests as defined in s 223(1) of the Act that may have existed ceased to exist in and over the Settlement Area on 13 April 2021 and the future act provisions of the Act ceased to operate in relation to land and waters in the Settlement Area. The State says the extinguishment of native title by the deemed surrender in cl 6.1 of the ILUAs is the critical issue for the Court to consider on this application.

35    It necessarily follows, the State submits, that the cessation of any native title rights over the Settlement Area means that any rights over the SRP2 Area, to the extent covered by the Settlement Area, have also ceased to exist. With the exception of a small portion of the SRP2 Area, which is less than five per cent of the whole and is seaward of the three nautical mile limit, the SRP2 Area is overlapped by the Settlement Area. Significantly, the sea area beyond the three nautical mile limit is simply a function of the co-ordinates that have been used to define the claim area and the mapping of lines between those co-ordinates. No evidence has been adduced as to that limited area. The State submits that the likelihood of the applicant obtaining a determination of native title in relation to the SRP2 Area seaward of the three nautical mile limit, which is a very small portion of the claim area, is extremely unlikely.

THE APPLICANT’S SUBMISSIONS

36    The applicant submits that the SRP2 claim group has not authorised any of the four overlapping ILUAs in accordance with their laws and customs.

37    It should be observed that this issue has been completely ventilated in other litigation, both before the Registrar of the National Native Title Tribunal and on appeal to the Full Court of this Court in McGlade (No 2), with special leave to appeal the Full Court’s decision refused by the High Court on 26 November 2020: Yarran v South West Aboriginal Land & Sea Council [2020] HCATrans 202.

38    The applicant disagrees that it has no reasonable prospect of successfully prosecuting the application. It contends that the findings of Branson J in Kemp v Native Title Registrar [2006] FCA 939; (2006) 153 FCR 38 support the applicant’s claim that:

(a)    this Court is the ‘appropriate forum’ for the resolution of the dispute as to the identity of the community group which holds native title over lands and waters covered by the claim group and the overlapping South West ILUAs; and

(b)    the SRP2 claim group has demonstrated a prima facie claim to hold native title and is required to separately authorise, according to their laws and customs, the South West ILUAs.

39    The applicant relies on the reference in Kemp to s 24CG(3)(b)(i) and s 251A of the Act, which deal respectively with applications for the registration of area agreements and the authorisation of ILUAs.

40    Those statutory provisions are in the following terms:

24CG    Application for registration of area agreements

…

(3)    Also, the application must either:

…

(b)    include a statement to the effect that the following requirements have been met:

(i)    all reasonable efforts have been made (including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified;

…

251A    Authorising the making of indigenous land use agreements

(1)    For the purposes of this Act, persons holding native title in relation to land or waters in the area covered by an indigenous land use agreement authorise the making of the agreement if:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind—the persons authorise the making of the agreement in accordance with that process; or

(b)    where there is no such process—the persons authorise the making of the agreement in accordance with a process of decision-making agreed to and adopted, by the persons who hold or may hold the common or group rights comprising the native title, in relation to authorising the making of the agreement or of things of that kind.

(2)    Without limiting subsection (1), when authorising the making of the agreement, a native title claim group may do either or both of the following:

(a)    nominate one or more of the persons who comprise the registered native title claimant for the group to be a party or parties to the agreement;

(b)    specify a process for determining which of the persons who comprise the registered native title claimant for the group is to be a party, or are to be parties, to the agreement.

(Emphasis in original).

41    The applicant relies on the fact that Branson J in Kemp (at [47]) found a distinction in the statutory construction between those who must be identified under the former provision and those who authorise the agreement under the latter.

42    The applicant relies on what her Honour said (at [40]-[41]) in the following terms:

40    I reject the above argument. In my view, it is plain that s 251A is concerned with how a single community or other group, the members of which together hold or may hold the common or group rights comprising the native title in relation to land or waters in the area covered by an [ILUA], may authorise the making of an indigenous land use agreement.

41    Section 251A is not intended to provide, and does not provide, a means whereby a single authorising decision can be obtained which is binding on two or more groups where their respective claims to hold native title in an area are in conflict. This can be seen from the reference in para (a) to a process of decision-making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind. It is hard to imagine any such process of decision-making where the respective claims of two groups to hold the native title are in conflict; it would require traditional laws and customs in relation to jointly authorising things binding on the members of both groups.

43    They also rely on what her Honour said (at [49] and [57]-[58]) as follows:

49    The two competing views as to the meaning of the words in s 24CG(3)(b)(i) are:

(a)    that the words should be construed literally so that, for example, where two competing groups each claims to hold the common or group rights which constitute the native title in the area, the words are capable of including the persons in both groups; or

(b)    that the words should not be construed literally but should be understood to refer to all persons who, according to the traditional laws and customs of the registered native title claimants, hold the common or group rights which constitute the native title in the area.

…

57    Finally, a determination that the words of s 24CG(3)(b)(i) are not to be given their literal meaning could result in interference with, if not loss of, a person’s native title rights in respect of the area covered by the agreement. While details of an agreement are entered on the Register of Indigenous Land Use Agreements, the agreement has effect as if all persons holding native title in relation to any of the land or waters in the area who are not already parties to the agreement were bound by the agreement in the same way as the native title group (s 24EA). As a consequence a person who has a prima facie claim to hold native title but who is not a party to the agreement would be bound by any consents thereby given to the doing of future acts or classes of future acts (s 24CB(a) and (aa)). Indeed, it appears that the person could be bound by a surrender of native title rights and interests in the area to the Commonwealth, a State or a Territory and the consequent extinguishment of those rights and interests (ss 24CB(e), 24EB(1)(d) and (3)).

58    I confess to having found this issue difficult to resolve. I accept that the construction for which the respondents contend would result in a logically coherent scheme for the registration of area agreements. However, a literal construction of s 24CG(3)(b)(i) does not, in my view, result in an absurd or otherwise plainly unlikely outcome. In the absence of a compelling case to do so, I am reluctant to depart from the literal meaning of the words which the legislative has chosen because a departure from that meaning could, in this and other cases, result in the loss of rights which an individual might otherwise enjoy.

44    Finally, the applicant relies on Kemp (at [59):

59    Were it the case that Mr Kemp’s claim to be a person who holds, or may hold, native title was merely colourable, it would have been open to the Registrar to conclude that his claim was without substance and, for that reason, his authority for the making of the Agreement unnecessary. However, Mr Kemp had successfully applied to be joined as a party to proceedings in this Court to oppose the claim that Dr Davis-Hurst and those whom she represents hold native title in the area covered by the Agreement. In the circumstances, in my view, the appropriate forum for the resolution of the dispute between Dr Davis-Hurst and those whom she represents on the one hand, and Mr Kemp on the other, as to the identity of the community or group which holds native title in the Saltwater land is the Federal Court.

45    The applicant argues that Branson J in Kemp was concerned that the applicant’s group had demonstrated a prima facie case, even though it was not registered, yet the group would have all of their native title rights and interests permanently extinguished through another group’s consent to the registration of the ILUA. Her Honour noted (at [57]) that she was particularly concerned that ‘a person could be bound by a surrender of native title rights and interests in the area ... and the consequent extinguishment of those rights and interests’ that left her Honour with a lingering suspicion that those who drafted the relevant provisions did not envisage circumstances such as had arisen in Kemp.

46    The applicant also relies upon observations of Reeves J in QGC Pty Ltd v Bygrave [2011] FCA 1457; (2011) 199 FCR 94 (at [85]) where his Honour said:

Turning then to the final point of distinction to the factual circumstances in Kemp. That is that the QGC-Bigambul agreement does not have the overwhelmingly destructive effect on the rights of the Kamilaroi/Gomeroi People that the agreement between Dr Davis-Hurst and the State of New South Wales would have had in Kemp if it had been registered. This loss of native title rights was the factor that appeared to weigh heavily on Branson J and, indeed, tip the balance, in Kemp: see Kemp at [57] and [58]. The QGC-Bigambul agreement does not, on its face, recognise the rights of the Bigambul People and deny those of the Kamilaroi/Gomeroi People, or anyone else for that matter. Furthermore, there does not appear to be any requirement in the QGC-Bigambul agreement that the Bigambul People are required to discontinue their native title determination application. At the present moment, those proceedings remain active in my docket and are being progressed towards either a contested hearing, or a consent determination. Hopefully, one of these will take place within the next 18 months to two years.

47    Finally, in Corunna, the applicant relies upon what Barker J said (at [67] and [69]):

67    The question whether Mr Corunna, as a member of the SRP2 claim group, is entitled to participate in a separate authorisation process with regard to the overlapping ILUAs at this stage of the events revealed above may then be resolved by reference to the relevant provisions of the NTA, considered above. It is unnecessary to consider further whether Mr Corunna may rely on the decision of this Court in Kemp v Native Title Registrar (2006) 153 FCR 38, or whether QGC Pty Ltd v Bygrave (No 3) (2011) 199 FCR 94 is applicable in relation to members of an unregistered native title claim group in the particular circumstances of this case, where the time for making a statutory objection has not yet arrived.

…

69    Mr Corunna will have the right, at the time SWALSC applies to register the relevant ILUAs and the Registrar gives notice of the ILUAs, to object on the grounds spelt out in s 203BE(5)(a) and (b) of the NTA, if he so desires.

48    The applicant says they objected to the registration of ILUAs under s 24CI of the Act in 2015 and 2018, however, the permitted grounds for objection were limited to procedural issues arising under s 203BE(5) of the Act. The terms of the objection were:

We submit that the issue as to whether the SRP2 claim group should be given an opportunity to separately authorise the ILUAs cannot be addressed through either the State or SWALSC’s submissions and is not a matter for the Registrar to consider or decide upon. The dispute regarding these issues and this matter can only be determined by the Court and we believe there is public interest in the Court resolving the matter.

49    The applicant contends it has not had any genuine opportunity to have the question of their group’s separate authorisation resolved and there are two questions of fact that need to be resolved before the SRP2 Claim could be struck out:

(a)    Is the SRP2 claim group a separate group to the overlapping claim groups?

(b)    If they are determined to be a separate group do they authorise the ILUAs separately from the other groups?

CONSIDERATION

50    The applicant contends this native title determination application has a reasonable prospect of success because the SRP2 claim group is a separate claim group and has not separately authorised the four overlapping ILUAs. Reliance is placed on the decision in Kemp for the contention that where there are two or more conflicting groups claiming native title rights and interests over the same area. They submit that s 251A of the Act, properly understood, requires that those conflicting groups must each engage in separate authorisation decision-making processes as contemplated by s 251A(a) or s 251A(b) of the Act, whichever is applicable.

51    I do not consider Kemp assists the applicant in resisting this application. Kemp concerned an application for judicial review of the Registrar’s decision to register the relevant ILUA. That course has already been thoroughly exhausted in this Court and in the High Court. In this instance, the relevant ILUAs are entered on the Register, following the legal challenges to the authorisation, execution and registration of the ILUAs, including Corunna itself, McGlade v Native Title Registrar [2017] FCAFC 10; (2017) 251 FCR 172, McGlade (No 2); Prior and Yarran.

52    In addition to Corunna, where similar issues were raised by persons who objected to the registration of the ILUAs under s 24CI of the Act in 2015 and 2018, Ms Bropho and Mr Wilkes (the signatories to the applicant’s submissions) had, like other objectors, the opportunity to seek judicial review of the Registrar’s decision to register the ILUAs if there was a specific ground of asserted legal error. However, they did not elect to seek judicial review of the Registrar’s decision. The time for seeking judicial review of the registration decisions has now long passed.

53    As Mortimer J noted in Gardiner v Taungurung Land and Waters Council [2021] FCA 80 (at [157]):

It is important to recall that McGlade (No 2) concerned claims for native title in fact made under the Native Title Act by the Noongar people, stretching back well over a decade, which had been the subject of a large number of decisions of this Court, all within the confines of the Native Title Act. There was no question in McGlade (No 2) that all concerned were dealing with “native title” claims as that term is used in s 223 of the Native Title Act, and indeed many of the Court’s decisions about the Noongar claims had concerned the content of that concept. Against that background, the existence of the six ILUAs, the Mackay applicants’ arguments presented to the Full Court and the way they were resolved are relevant to the resolution of the applicants’ contentions in this case. That is because they illustrate how complex the question might be of how to identify all those who may hold native title, and that notwithstanding the existence of an overarching “society” whose traditional laws and customs may be the source of rights and interests in land, the way native title may be held within that society may be much more complex, and differentiated. For certification and registration purposes, how these complexities were addressed and dealt with by the representative body in the process leading up to its certification is what matters.

54    The applicant and the members of the SRP2 claim group were invited to participate in, and many did participate in, the authorisation meetings for the four relevant ILUAs and the process for objecting to the registration of the ILUAs pursuant to s 24CI of the Act. As Barker J observed in Corunna (at [65]), there is no other provision in the Act which provides for a member or members of a claim group for an unregistered native title determination application, such as the SRP2 claim group, to be separately involved in either the relevant ILUA making process or the authorisation of the making of such an agreement.

55    The position is that when registered by s 24EA(1) of the Act, each relevant ILUA operates as a contract among the parties to the agreement and binds all other people who hold native title in the area covered by the agreement. That includes the members of the SRP2 claim group. Native title exists in rem.

56    The registration of the six ILUAs and the resolution of native title rights through the six ILUAs in exchange for the considerable benefits and structures established under the South West Settlement, some of which are for particular native title agreement groups which include the members of the SRP2 claim group, and some of which are for the benefit of the Noongar people generally, means that the SRP2 Claim no longer has a reasonable prospect of achieving a determination that native title exists.

DISCRETION

57    These matters have been litigated exhaustively at a considerable cost to the community at large and the participants.

58    The State contends that in the circumstances, the applicant’s application for a determination of native title over the SRP2 Area, to the extent it is overlapped by the Settlement Area, has no reasonable prospect of being successfully prosecuted. I accept this submission. It is therefore appropriate for the Court to exercise its discretionary power under s 31A(2) of the Federal Court Act to enter judgment against the applicant to the extent that the applicant’s claim for a determination of native title is overlapped by the Settlement Area of the South West Settlement. I also consider that it is appropriate to exercise the discretion on the basis that no realistic prospects of success exist in relation to the whole of the SRP2 Claim. I note that the applicant has raised no evidence or submission in support of a claim to the residual area that is seaward of the three nautical mile limit.

59    The State’s application should be granted.

Associate:

Dated:    1 July 2021