FEDERAL COURT OF AUSTRALIA

Bates on behalf of the Malyangapa Part B Claim Group v Attorney General of New South Wales [2021] FCA 1198

ORDERS

THE COURT ORDERS THAT:

1.    Clancy John McKellar and Norman John Hodge be joined as respondents to this proceeding.

2.    The interlocutory application dated 28 June 2021 brought by Mr McKellar and Mr Hodge to strike-out and/or summarily dismiss the Malyangapa Part B application be dismissed, without prejudice to their right to maintain their arguments at the final hearing of the Part B application.

3.    There be no order as to costs.

4.    The parties have liberty to apply in relation to costs. Any party which wishes to propose a different costs order must file short submissions within seven days, and other parties may file short submissions in response within seven days thereafter.

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

REASONS FOR JUDGMENT

MURPHY J:

1    By an amended interlocutory application dated 28 June 2021, Clancy John McKellar and Norman John Hodge (the Wongkumara respondents) sought orders that:

(a)    they be joined as respondents to the native title determination application herein, Jennifer Bates and others on behalf of the Malyangapa Part B native title claim group (NSD 526/2021) (the Malyangapa Part B application), pursuant to s 84(5) of the Native Title Act 1993 (Cth) (the NTA or the Act). Mr McKellar and Mr Hodge are both members of the applicant in the Wongkumara native title determination application (QUD 851/2018) (Wongkumara application). The claim area in the recently commenced Malyangapa Part B application overlaps the southernmost part of the claim area in the long-running Wongkumara application (overlapping claim area);

(b)    the Malyangapa Part B application be struck-out under s 84C(1) of the NTA on the basis of defects in the authorisation of the application, and/or be summarily dismissed on the basis that the proceeding has no reasonable prospect of success for similar reasons, under s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA) and r 26.01(a) of the Federal Court Rules 2011 (the Rules); and

(c)    in the alternative, the Malyangapa Part B application be summarily dismissed as an abuse of process under r 26.01(d), on the basis of the significant delay by the Malyangapa People in bringing the claim and the substantial prejudice it will cause to the Wongkumara People.

2    It is plain that Mr McKellar and Mr Hodge claim to have native title rights and interests in relation to the overlapping claim area, their joinder was by consent, and I have made orders for their joinder. For the reasons I now explain, I have refused the application to strike-out or summarily dismiss the Malyangapa Part B application on each of the grounds advanced.

3    In summary, the question as to whether the Malyangapa Part B application was properly authorised turns, to a large extent, on the question of who the right people are for the overlapping claim area. The question as to whether the overlapping claim area is properly either Wongkumara country or Malyangapa country, as each group claimed, is factually complex and contentious. In a case like the present, those questions are not apt to be disposed of by strike-out or summary dismissal. The evidence of the Malyangapa people as to their occupation and connection to country was incomplete, their expert anthropologist’s report was preliminary, and the lay and expert evidence was disputed by the Wongkumara respondents, but it indicates that the Malyangapa People have a prima facie case. I do not consider that, in a one day interlocutory application such as this, where the lay and expert evidence is incomplete, disputed and untested by cross-examination, and which indicates at least prima facie the Malyangapa Part B application has a proper basis, it is appropriate to strike out or summarily dismiss the application.

4    It is also relevant that the Malyangapa People and their descendants will suffer serious adverse consequences if their native title application is struck-out without it being determined on its merits. A claim for a native title determination under the NTA is not ordinary inter partes litigation, it is an assertion of communal rights in land based on occupation and physical and spiritual connection going back many tens of thousands of years, and any finding of native title involves vindication of communal rights on behalf of not only the living claim group, but their ancestors and generations to come: State of Western Australia v Fazeldean on behalf of the Thalanyji People (No 2) [2013] FCAFC 58; 211 FCR 150 at [34] (Allsop CJ, Marshall and Mansfield JJ). Further, such a finding will operate in rem, and not just against the other parties. That too points away from striking out or summarily dismissing the Malyangapa application.

5    In relation to the abuse of process application, while the lateness and delay of the Malyangapa People in bringing their claim will disadvantage the Wongkumara respondents and their people, I am not persuaded that it is appropriate to summarily dismiss the Malyangapa Part B application on the basis that it is unjustifiable oppressive or will bring the administration of justice in to disrepute. The position may have been different if the lateness of the Malyangapa application was likely to derail the trial of the Wongkumara application, but it will not. The Malyangapa applicant has committed to compliance with the existing trial timetable in the combined proceeding and, while the Wongkumara People will suffer some prejudice, on balance I am not satisfied that it is appropriate to accede to the application made on their behalf.

THE EVIDENCE

6    The Wongkumara respondents relied upon the following evidence:

(a)    three affidavits of Eduard Salomon Neumann, the solicitor for the Wongkumara respondents, affirmed 23 June 2021, 5 August 2021 and 2 September 2021;

(b)    an affidavit of Mr McKellar affirmed on 4 August 2021;

(c)    an affidavit of Mr Hodge affirmed on 4 August 2021;

(d)    an affidavit of Iris Joyce Bysouth affirmed on 2 August 2021;

(e)    an affidavit of Cecil William Ebsworth affirmed on 4 August 2021;

(f)    an affidavit of Daphne Monaghan affirmed on 4 August 2021;

(g)    an affidavit of Ainsley Joy Ebsworth affirmed on 4 August 2021;

(h)    an affidavit of Rosemary Anne Wilson affirmed on 4 August 2021; and

(i)    an affidavit of Jacqueline Elizabeth Hill affirmed on 9 August 2021.

They relied on an outline of argument and particulars dated 5 August 2021, and written submissions dated 30 August 2021 and 2 September 2021.

7    The applicant in the Malyangapa Part B application (the Malyangapa applicant) relies upon the following evidence:

(a)    six affidavits of Andrew Allan Jantke, a senior legal officer in the employ of South Australian Native Title Services Ltd (SANTS), the solicitor for the Malyangapa applicant - an unsigned affidavit dated on 27 August 2021, a further unsigned affidavit dated 27 August 2021, and four unsigned affidavits dated 1 September 2021;

(b)    an affidavit of Mark Francis Sutton affirmed on 25 August 2021;

(c)    an unsigned affidavit of Mary Ann Hausia annexed to an affidavit of Patrick Michael McCabe, barrister, affirmed on 26 August 2021;

(d)    an unsigned affidavit of Shannon Gossner annexed to an affidavit of Mr McCabe affirmed on 27 August 2021;

(e)    an unsigned affidavit of Maureen O’Donnell annexed to a further unsigned affidavit of Mr Jantke filed on 27 August 2021;

(f)    an unsigned affidavit of Gail Hunt annexed to a further unsigned affidavit of Mr Jantke filed on 27 August 2021;

(g)    a list filed on 30 August 2021 detailing documents filed in the Wongkumara application including an affidavit of Mr Neumann affirmed and filed on 8 July 2014, and expert reports prepared by Professor Sutton dated 27 August 2018, 14 June 2019 and 1 August 2019; Dr Sneddon dated 4 December 2018 and 5 December 2018; and Dr Sackett dated 13 December 2018;

(h)    an unsigned affidavit of Gerald Quayle annexed to an unsigned affidavit of Mr Jantke filed on 29 August 2021; and

(i)    a preliminary report by Dr Natalie Kwok, anthropologist, dated 27 August 2021 (the Kwok report) .

The Malyangapa applicant relied on written submissions dated 31 August 2021 and 2 September 2021.

8    The State of New South Wales relied on written submissions dated 2 September 2021. It neither consented to nor opposed the application.

STRIKE-OUT – AUTHORISATION

The evidence regarding the authorisation meeting

9    It is uncontentious that SANTS convened a meeting intended to authorise a native title determination application on behalf of the Malyangapa People by a notice sent to the biological descendants of seven identified apical ancestors of the Malyangapa People, and to any other Aboriginal persons who assert native title rights and interests in the proposed Malyangapa native title determination claim area.

10    In his first affidavit Mr Jantke deposed, as follows:

(a)    on 23 December 2020, SANTS sent an undated notice headed “Notice of Native Title Authorisation Meeting”, advising of a meeting intended to authorise the Malyangapa application (the authorisation meeting) to be held on 30 January 2021 at the Musician’s Club on Crystal Street, Broken Hill (the Notice), by post to all members of the Malyangapa claim group on the membership list held by SANTS, and by email to 72 members of the claim group for whom SANTS had email addresses;

(b)    however, before the proposed 30 January 2021 meeting was advertised in newspapers, COVID-19 restrictions on travel to Broken Hill from South Australia were imposed. There was doubt as to whether SANTS staff could travel to Broken Hill on 30 January 2021 to facilitate the authorisation meeting, and accordingly it was postponed;

(c)    on 8 January 2021, by letter and email to the same persons, Mr Jantke advised that the authorisation meeting was to be postponed and that SANTS hoped to hold the meeting on 20 February 2021;

(d)    on 20 January 2021, SANTS sent an updated Notice, advising that the authorisation meeting was to be held on 20 February 2021 at the Musician’s Club on Crystal Street, Broken Hill, by post to all members of the Malyangapa claim group on the membership list held by SANTS, being 126 persons; and by email to the 76 members of the claim group for whom SANTS had email addresses; and

(e)    SANTS also published the updated Notice:

(i)    on 27 January 2021 in the Sydney Morning Herald, a NSW-wide newspaper; and

(ii)    on 30 January 2021 in the Barrier Daily Truth, a regional newspaper published in Broken Hill and circulated in the western regions of NSW.

11    It is uncontroversial that, other than the date of the updated Notice and the date of the authorisation meeting, there is no material difference between the initial Notice and the updated Notice. I refer to both as the “Notice”.

12    The Notice relevantly said:

NOTICE OF NATIVE TITLE AUTHORISATION MEETING

DATE:            20 February 2021

TIME:            11:00 am to 3:00 pm

REGISTRATION:    10:30 am to 11:00 am

VENUE:        The Musicians Club, 276 Crystal Street, Broken Hill

South Australia Native Title Services (‘SANTS’) is convening a meeting of Malyangapa People and persons who assert native title rights and interests in land and waters in the vicinity of Tibooburra, Brindiwilpa Packsaddle, Cobham, Border Downs, Tilcha in the north west of NSW and into South Australia.

PURPOSE OF THE MEETING:

The purpose of the meeting is to authorise the filing of two (2) native title determination applications over the areas described in this notice.

WHO SHOULD ATTEND:

Aboriginal people who assert native title rights and interests, being:

1.    The biological descendants of:

(a)    Fanny Buugali Williams

(b)    Cobham Tommy Williams

(c)    Jerry Tu:pi (stepfather of George Dutton)

(d)    Alf Barlow

(e)    Topsy Crowe

(f)    Nellie of Cobham Lake

(g)    Albert Bates Snr (husband of Rosie); and

2.    Any other Aboriginal persons who assert native title rights and interests in the proposed claim area.

PROPOSED CLAIM AREAS:

PART A

[This described the Malyangapa Part A claim area which is not relevant to the present application.]

Part B

The proposed Part B claim Area includes the land and waters in the vicinity of Tibooburra and Milparinka which is overlapped by the Wongkumara native title claim area QUD 851/2018.

THE AGENDA proposed for the meeting on 30 January [sic]:

 1.    Introduction, welcome and acknowledgement of country;

2.    Discuss the background to the proposed new claims and review native title law and processes;

3.    Discuss the process and timing for the resolution of any native title determination applications, should the claim group decide to authorise the claims;

 4.    Confirm the decision-making process of the native title claim groups;

5.    Consider and authorise the native title determination applications over the areas described in this notice, being: land and waters in the vicinity of Tibooburra, Brindiwilpa Packsaddle, Cobham, Boarder Downs, Tilcha in the northwest of NSW and into South Australia;

6.    Authorise one or more members of the native title claim group to make the native title determination applications and to deal with matters arising in relation to it;

 7.    Consider any conditions to be imposed on the power of the Applicant;

8.    Consider and confirm legal representation for the native title determination applications.

 9.    Any other business as determined by the native title claim group(s).

The proposed native title claim area is the land and waters bounded in blue in the map below.

[The Notice here set out a map of the Malyangapa Part A and Part B claim areas, with Part B being the overlapping claim area with the Wongkumara application]

PLEASE NOTE: Those persons who are unable to attend the meeting for health or other reasons, and who wish to nominate to be considered in the election of applicants, can request to be rung up at the commencement of the election of applicants for the purpose of participating in the election of the applicants. Such a request can be made either beforehand by ringing Sheridan Dawson on [telephone number redacted] or Andrew Jantke on [redacted] or during the meeting before nominations close by ringing [redacted]. Though a person can nominate and be considered in the election of applicants by telephone, voting in the election must be in person.

CONFIRMING YOUR ATTENDANCE:

Travel assistance and accommodation may be available to persons attending this meeting in accordance with relevant SANTS policies and procedures.

If you have any questions regarding this notice or if you would like to register your interest in attending please contact Jodie Martin on [redacted] by no later than Monday, 15 February 2021 so that all relevant arrangements can be made.

13    Mr Jantke annexed the minutes of the authorisation meeting held on 20 February 2021 to his first affidavit. Relevantly, the minutes record the following:

…

8. Consider and authorise the native title determination applications

Resolution 2: The meeting confirms that there is no decision-making process under traditional law and custom that the claimants must use for making decisions of this kind relating to native title. The following process will then be used to make a decision about each matter:

There will be a reasonable opportunity for informed discussion about each matter before a decision is made in relation to it;

Each claimant over 18 present at the meeting has a right to vote upon any resolution that is considered at this meeting;

The decision to be made will be put in the form of a clearly worded written resolution;

The proposed resolution will be read out to the meeting;

The proposed resolution must be moved and seconded by members of the claim group before it is decided on;

Voting will be by a show of hands; and

Resolutions will be passed if they are agreed to by a majority of those claimants present and voting.

Moved: Kim O’Donnell

Seconded: Michael Gilby

All in favour. Motion Carried.

Resolution 3: The meeting confirm that the Native Title Claim Group is described as follows:

  1.    The biological descendants of:

(a)    Fanny Buugali Williams

(b)    Cobham Tommy Williams

(c)    Jerry Tu:pi (stepfather of George Dutton)

(d)    Alf Barlow

(e)    Topsy Crowe

(f)    Nellie of Cobham Lake

(g)    Albert Bates Snr; and

2.    Are identified and accepted as a part of the Malyangapa community under traditional law and custom.

Discussion:

Natalie raised the issue of adoption, as George Dutton’s rights to Malyangapa culture exist via adoption from his stepfather, Jerry Tu:pi.

The removal of “biological” was raised by the group, however the risk was acknowledged that this might open up the definition of ‘descendant’ too wide.

Resolution 3.1: The members present vote to remove “biological” from the above resolution.

Moved: Mark Sutton

Seconded: Gail Hunt

In favour: 18

Against: 17

Motion carried.

Moved: Michael Gilby

Seconded: Veronica Robinson

In favour: 20

Against: 6

Abstained: 8

Motion Carried.

… [Resolution 4 is not relevant to the present application]…

9. Authorisation of Claim Group

Resolution 5: The native title group authorise the Named Applicants (named in resolution 7) of the native title claim group to make 2 applications for determination of native title and deal with matters arising in relation to them in relation to the following areas of land and waters.

The Malyangapa Part A native title determination area includes land and waters in the vicinity of Lake Callabonna, Tilcha, Mount Browne, Pindera Downs in the north; Clifton Downs, Salisbury Downs, Brindiwilpa, Callindary to the east; and Eurinilla Creek, Lake Cootabarlow, Yandama Creek and Tilcha Creek to the west in South Australia.

The southern boundary of the proposed claim area adjoins the Barkandji Traditional Owners #8 NSD 6084/1998 native title area in NSW and Wilyakali SAD 33/2012 native title claim area in South Australia (the area bounded in blue). The proposed Part A claim area excludes the area overlapped with the Wongkumara native title claim area QUD 851/2018.

The Malyangapa Part B native title determination area includes the land and waters in the vicinity of Tibooburra and Milparinka which is overlapped by the Wongkumara native title claim area QUD 851/2018.

Moved: Jennifer Bates

Seconded: Veronica Robinson

All in favour.

Motion Carried.

14    The Wongkumara respondents and all except one of the other Wongkumara deponents said that they ultimately became aware of the authorisation meeting. They instructed their solicitor, Mr Neumann, to write to SANTS to put the Malyangapa People on notice that they opposed the claim being authorised. By letter dated 17 February 2021 to SANTS, Mr Neumann said the following:

People who fall within the description [of invitees to the authorisation meeting], who are my clients, formally notify you that they do not authorise a separate Malyangapa claim over the area where recognition of their native title rights and interests has been sought consistently since 1997 and never before by a separately identifying group of Malyangapa people. My clients who are included by the description, specifically withhold their authority for applicants to be authorised to make such a claim on their behalf and inform you that they will take all necessary steps to oppose a separate claim over the area you identify as Part B.

15    It appears that two Wongkumara people attended the authorisation meeting by telephone; however they were not permitted to vote because they were not there in person.

The evidence regarding connection to country

The Wongkumara respondents’ evidence

16    The Wongkumara respondents relied on the second Neumann affidavit, to which was annexed maps and Schedule extracts from the National Native Title Tribunal site of the native title claims and determinations in which the Malyangapa People have been involved, and a map of Malyangapa country described by Harold Hunt, a man involved in the Malyangapa Part B claim, which has no overlap with the Wongkumara claim area. Mr Neumann deposed to the record of Wongkumara claims in relation to the claim area throughout the last 25 years, and the overlapping claims made by other Aboriginal groups at various times which have since been resolved; the asserted deficiencies in the notice for the authorisation meeting; and the prejudice to the Wongkumara applicant, and its lack of resources to now respond to the late-filed overlapping Malyangapa claim.

17    They also relied on the affidavits of Mr McKellar and Mr Hodge in which, in summary, each deposed as to their Wongkumara identity; lifelong knowledge of Wongkumara country including in relation to the overlapping claim area; their involvement in Wongkumara claims since 1997; the absence of Malyangapa interest in the overlapping claim area for that entire time; and their withholding of authority for a new claim by Malyangapa. Their affidavits also annexed their family trees showing their descent from the asserted Malyangapa apical ancestors, Fanny Buugali Williams and Tommy Williams.

18    The other Wongkumara deponents affirmed affidavits covering similar subjects to Mr McKellar and Mr Hodge, as well as noting other matters, as follows:

(a)    Ms Bysouth deposed as to her knowledge of and relationship to Barkandji people and Barkandji native title interests outside of the Wongkumara claim area. She stated that some of the Barkandji people she knows have become involved in the Malyangapa Part B application. Annexed to her affidavit is her family tree showing her descent from the asserted Malyangapa apical ancestors, Nellie of Cobham Lake, Albert Bates, Jerry Tu:pi and George Dutton; and a map of George Dutton sites based on research by Beckett and Hercus;

(b)    Mr Ebsworth deposed as to his involvement in Wongkumara claims since 1997 including, the evidence he gave before Tamberlin J in 2003 about the country in and around Tibooburra (which is in the overlapping claim area); the absence of Malyangapa interest in the claim area for that entire time; his personal knowledge of George Dutton (Wongkumara and Barkandji), Albert Bates (Barkandji) and Harold Hunt (Barkandji). Mr Ebsworth’s affidavit annexed a family tree showing his descent from the asserted Malyangapa apical ancestors, Fanny Buugali Williams and Tommy Williams;

(c)    Ms Monaghan’s affidavit annexed a family tree showing her descent from the asserted Malyangapa apical ancestor, Topsy Crowe;

(d)    Ms Ebsworth’s affidavit annexed a family tree showing her descent from the asserted Malyangapa apical ancestors, Fanny Buugali Williams and Tommy Williams through her father, and Topsy Crowe through her mother;

(e)    Ms Wilson deposed as to her knowledge that some of the Malyangapa claimants are Barkandji people, and her affidavit annexed a family tree showing her descent from the asserted Malyangapa apical ancestors, Fanny Buugali Williams and Tommy Williams; and

(f)    Ms Hill deposed as to her lifelong knowledge of Wongkumara country, particularly Tibooburra; and her affidavit annexed her family tree showing descent from the Wongkumara apical ancestor, Tarella.

19    The Wongkumara respondents objected to the late filing of the Kwok report. They argued that Dr Kwok’s opinion with respect to the composition of the claim group, the conduct of the authorisation meeting, and the beliefs of the Wongkumara deponents is not relevant to the grounds of the strike-out/summary dismissal application and is not admissible pursuant to s 56 of the Evidence Act 1995 (Cth). They also submitted that the report contains various errors of fact and reasoning concerning some Malyangapa apical ancestors, and contended that it is “very one-sided” and cannot be regarded as reliable.

20    I do not accept that submission. I am satisfied that the Kwok report is relevant to the question of authorisation as it deals with fundamental issues such as the make-up of the Malyangapa native title claim group and the extent of their native title rights and interests. It is relevant to the issue of authorisation and to whether the Malyangapa Part B application has a reasonable prospect of success. In my view it is admissible.

The Malyangapa applicant’s evidence

21    The Malyangapa applicant relied on the affidavit of Mr Sutton, who deposed that he is a Malyangapa man through his mother, Alma Bates, her mother Hannah Quayle, and her mother, (his great-great-grandmother) Fanny Buugali Williams, who were all Malyangapa People. He said that growing up his mother made sure that he knew about their family history and told him that the country around Tibooburra and Milparinka is Malyangapa country. She told him that Wongkumara country was the other side of Tibooburra, going up to Queensland. He also said that his uncles, William Riley and Harold Hunt, told him that the area around Tibooburra was Malyangapa country. He said that he started working at the Mutawintji National Park in about 1998 and that many of the people on the Mutawintji Aboriginal Land Council (which had been formed in 1983) were Malyangapa. He deposed as to his unsuccessful efforts in seeking to have Native Title Service Corporation (NTS Corp), the native title service provider in NSW, pursue a native title claim on behalf of the Malyangapa People. In substance he said that ultimately SANTS agreed to help them, and SANTS persuaded NTS Corp not to stand in the way. He blamed NTS Corp for the late filing of the Malyangapa Part B application.

22    The Malyangapa applicant also relied upon unsigned affidavits of Malyangapa deponents. In each case a legal practitioner stated that the deponent had confirmed that the contents of the unsigned affidavit were true. At the hearing the Wongkumara respondents did not reiterate their written submission objecting to the unsigned affidavits. Given the short time allowed for the Malyangapa applicant to put on its evidence, and the COVID-19 restrictions in place, I have no difficulty in accepting unsworn affidavits on the basis described in paragraph 4.2 of the Special Measures in Response to COVID-19 Information Note (SMIN-1). The Malyangapa applicant must file sworn affidavits as soon as practicable. In summary, the Malyangapa witnesses deposed as follows:

(a)    Ms Hausia said that she is a Malyangapa woman and a descendant of the Malyangapa apical ancestor, Fanny Buugali Williams, her great-grandmother. She said that her mother and grandmother told her stories about the places around Milparinka and Tibooburra, particularly Tibooburra, which was how she knew it was Malyangapa country. She said that a long time ago she attended meetings of the traditional owners of Mutawintji National Park, along with William Bates, a Malyangapa man, and that almost everyone else in the meeting was also Malyangapa. She also deposed as to the reasons for the delay by the Malyangapa People in making the present claim;

(b)    Ms O’Donnell said that she is a Malyangapa woman through her father, Alfred Bates, and by descent from Nellie of Cobham Station (her great-grandmother), an apical ancestor in the Malyangapa claim. She said that her father had told her the country around Milparinka and Tibooburra was his country, and his father Alfred Bates Senior was buried there. She said she has never known it as Wongkumara country and has never heard people say that it is Wongkumara country. She spoke of her spiritual ties to that country and that she has been there many, many times. She said that she was very active in the Barkandji native title claim and worked with a lot of people to conclude that claim. She said that she is also a Wilyakali person, and on her account it was through her Wilykali connections that she was part of the Barkandji claim group;

(c)    Mr Gossner said he is a Malyangapa man who traces his descent through his grandmother, Mary O’Brien Quimby, by whom he was raised. His great-grandmother was Lena Quimby, whose mother was Nellie Crowe, and her mother was Topsy Crowe, a Malyangapa apical ancestor. He said that while his family did not have connections with the country around Tibooburra he understood that other Malyangapa families like the Bates family did have connections up that far north;

(d)    Ms Hunt said that she is a Malyangapa woman. Her father is Harold Hunt, a Malyangapa man, his mother is May Hunt (nee Quayle) and her mother is Granny Hannah Quayle. She traces her lineage from her great-great-grandmother Fanny Buugali Williams, a traditional Malyangapa woman who lived on Mordern Station, near Mutawintji. She said she had always understood that the areas around Milparinka were Malyangapa country and that her father took her around those areas as a child. Her father was given a number of traditional stories about those areas and he told her about them as a young woman. She said that she does not identify as Barkandji and together with a small group of Malyangapa people she objected to being included in the Barkandji native title claim, but they lost the vote, and the claim was renamed to Malyangapa and Barkandji. She objected to her great-grandmother, Hannah Quayle, being listed as an apical ancestor on that claim but her objection was not accepted. She largely blamed the NTS Corp in NSW for the delay in the Malyangapa people advancing their new claims. She specifically denied that her father was a Barkandji man, and said it was ridiculous to assert otherwise. She referred to an audio recording of her great-grandmother Hannah Quayle, recorded by the linguist Luise Hercus in the late 1950s, in which she said that her people were Malyangapa People; and

(e)    Mr Quayle said he is a senior Malyangapa man. He traces his descent through his great-grandmother, Hannah Quayle, whose mother was Fanny Buugali Williams. He says that he has always known that Malyangapa country includes the land around Tibooburra and Milparinka. He knows that because his great-grandmother told him many Malyangapa stories connected with those places and many other places as well, and she told him that was their country. By way of explanation for the delay in bringing the Malyangapa claims, he said that the Malyangapa have no resources to run a native title claim themselves and they needed the help of NTS Corp lawyers to do so. He deposed as to the Malyangapa People making NTS Corp aware that they wanted to commence their own native title claim, and that there was nothing else that they could do but wait. He said that it was only through SANTS that the Malyangapa People were ultimately able to get the present claim off the ground.

23    The Malyangapa applicant relied on the Kwok report, which runs to 104 pages. In the report Dr Kwok concluded as follows (at [264]-[271]):

264.    The Part B claim group is a descent and language-based group, united by their common connection, under traditional law and custom, to Malyangapa land and waters, and, by the common observance and enforcement of related prescriptions and customs. They are also united amongst themselves, and across the wider region, by a common moral social ethos, mutually recognised social rules and by the ongoing centrality of extended kinship relationships in social, economic and political life.

265.    Drawing on the ethnohistoric records, including published historical and ethnographic works, maps and unpublished fieldnotes, there is strong evidence placing the Malyangapa language group within the Pt B claim area. Classical cosmology provides a charter for understanding divisions between language groups and people in the area. The Malyangapa are distinguished from their neighbours by a distinct language and unique moiety names, with only the Wadikali and Yardliyawara being counted within the same linguistic sub-set (Yarli). The mura and milia stories and ceremonies of the corner country place the Malyangapa people and their ancestral forebears within the overlap area. These also provide an outline of regional networks of ceremonial cooperation, marriage and trade, which account for the influx of visitors and common mythological knowledge. Malyangapa interests in country extend from Tibooburra in the north, to Lake Bancannia in the south; and in the east from Salisbury Downs and Yancannia, westward to or towards Lake Frome and Lake Callabonna. This is discussed at some length above in Sections J and K, and see my conclusions at [71], [79], [93].

266.    My research supports the Malyangapa Part B claim group description above at [6]. Six of the seven apical ancestors listed in the Part B claim group description have been directly identified in anthropological/linguistic research materials as Malyangapa people or as closely and relevantly connected to persons so identified. Historical documentation is available to support the births, deaths and marriages of apical and other ancestors of the present Malyangapa claim group within the Pt B claim area. Oral testimony accounts for the life and work histories of contemporary Malyangapa claimants which have or continue to relate to the towns of Milparinka and Tibooburra and stations in the area including Mt Poole and Mt Sturt.

267.    The ethnohistoric and archival evidence is decidedly weaker in identifying Wongkumara connections to the Part B area. As I have indicated, it is probable that historically, Wongkumara connections stem from their participation in broader regional activities such as ceremonies and through residence in the regional centre of Tibooburra, perhaps stemming from the relocation of the apical forebear Charlotte from Nockatunga in the 1930s (see [93] and [104], [105]).

268.    I have specifically considered the Wongkumara claims at some length in Sections L, S and U and they have not altered my opinions and conclusions in this report, Specifically, my conclusions in relation to Alf Barlow are at [188], [189], George Dutton at [207], Nellie of Cobham Lake at [213], Charlotte [222], [223], Tarella at [230] and Albert Bates at [236].

269.    The Malyangapa people continue to assert their exclusive possessory interests in their country, including the Part B area, under traditional law and custom and found their identity on their common connections to the dry lands they call their own. Some Malyangapa claimants presently reside at Tibooburra, others visit from time to time. The Malyangapa people are actively involved in the traditional owner arrangements at Mutawintji National Park, which lies inside the Barkandji determined area and serves as a focal point of Malyangapa identity. They protect, care for and promote their land and cultural heritage in the Pt B claim area through membership and office-bearing positions in the Tibooburra Local Aboriginal Land Council, through representation on National Parks and Wildlife Service projects, in local cultural heritage projects and in clearance work. The Malyangapa people are seeking recognition for their collective interests in Malyangapa country and for attendant rights to access and occupy their country, to take and use the resources of their land and waters for any purpose, to speak for and manage their land and to carry out and protect their cultural heritage as they see fit.

270.    Although in keeping with traditional law and custom, an Aboriginal person always maintained certain rights in the country of their various grandparents, in the contemporary era, distinctions between the kind of rights inherited along different pathways have lost definition. People may well assert interests in country through more than one line of descent. There is a sentiment, more or less strongly held, that a person should make some choices with regard to their primary affiliation. At the least, in order to maintain some active recognition as a group member, a person should be willing to publicly assert their identity with the group, service relationships with kin and country and involve themselves in forums dealing with management of country, in such a way as to be reckoned one of the group. Minimal connections of a biological nature may provide the foundation for basic group membership, however, in order to receive warm acceptance and to be able to speak up in respect of country, mutual recognition is requisite.

271.    The conclusions outlined here and throughout the report are based on research and fieldwork to date. I plan to undertake further fieldwork and desktop research (COVID-19 restrictions permitting) in connection with the Malyangapa claim lodged in June 2021 (Parts A and B). I expect that this work will deepen my knowledge and may lead to further refinement of my views.

The statutory framework

24    Section 61(1) of the NTA provides that an application for determination of native title in relation to an area may be made by:

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;

Section 61(1) requires that the person or persons authorised to be the applicant are members of the native title claim group, and subsections (2)(c) and (d) provide that the person or persons so authorised are jointly the applicant in the native title determination application, to the exclusion of all other native title claim group members.

25    The term “native title claim group” is relevantly defined, somewhat circularly, in s 253, as follows:

“native title claim group” means:

(a)    in relation to a claim in an application for a determination of native title made to the Federal Court - the native title claim group mentioned in relation to the application in the table in subsection 61(1);

26    Section 62(1) provides that a native title determination application must be accompanied by an affidavit sworn by the applicant in relation to a number of matters. Relevantly to the present case, they included the following matters described in s 62(1)(a)(iv) and (v) of the NTA (which were in effect at the relevant time):

(iv)    that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and

(v)    the details of the process of decision-making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it.

27    Section 251B of the NTA sets out two alternative methods through which all the people in the native title claim group may authorise the applicant in a native title determination application. It provides:

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.

28    Section 67(1) provides:

If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding.

29    Section 84C provides the Court with the power to strike-out an application on the basis of non-compliance with ss 61, 61A or 62. It relevantly states:

(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.

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

…

30    Subsections 84D(3) and (4) of the NTA provide as follows in relation to proceedings affected by a possible defect in authorisation:

(3)    Subsection (4) applies if:

(a)    an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or

(b)    a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so.

…

(4)    The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:

(a)    hear and determine the application, despite the defect in authorisation; or

   (b)    make such other orders as the court considers appropriate.

The Wongkumara respondents’ submissions regarding authorisation

31    The application by the Wongkumara respondents to strike-out the Malyangapa Part B application is based in two broad contentions; that:

(a)    the Malyangapa claim group which purported to authorise the Malyangapa Part B application is only a sub-group of the persons with native title rights and interests in the overlapping claim area, and a claim may not be made on behalf of only some of the native title holders for an area (the sub-group issue); and

(b)    the authorisation process in respect of the Malyangapa Part B application did not comply with s 251B of the NTA because the notice of the meeting to authorise the application purported to pre-determine the method by which any authorisation of the application was to occur (the flawed decision-making issue).

On that basis the Wongkumara respondents submitted that the Malyangapa Part B application should be struck-out as it has not been authorised in compliance with ss 61 and 62 of the NTA.

The sub-group issue

32    The Wongkumara respondents noted that the Notice of the authorisation meeting for the two Malyangapa claims (Parts A and B) referred to the persons “who should attend” as follows:

Aboriginal people who assert native title rights and interests, being:

  1.    The biological descendants of:

(a)    Fanny Buugali Williams

(b)    Cobham Tommy Williams

(c)    Jerry Tu:pi (stepfather of George Dutton)

(d)    Alf Barlow

(e)    Topsy Crowe

(f)    Nellie of Cobham Lake

(g)    Albert Bates Snr (husband of Rosie); and

2.    Any other Aboriginal persons who assert native title rights and interests in the proposed claim area.

33    Except for the removal of the word “biological” (which was resolved at the meeting), the first part of that description of invitees in the Notice is consistent with the claim group description in the Malyangapa Part B application, which provides that Malyangapa People comprises Aboriginal people who are the descendants of one or more of:

(a)    Fanny Buugali Williams;

(b)    Cobham Tommy Williams;

(c)    Jerry Tu:pi (stepfather of George Dutton);

(d)    Alf Barlow;

(e)    Topsy Crowe;

(f)    Nellie of Cobham Lake; and

(g)    Albert Bates Snr (husband of Rosie),

collectively, the Malyangapa apical ancestors; and

(h)    who are identified and accepted as part of the Malyangapa community under traditional law and custom.

34    The Wongkumara respondents also noted that the claim group description in the Wongkumara application provides that the Wongkumara People are the descendants of one or more of:

(a)    Charlotte (mother of Jack, Queenie and May Hines, Rosie Jones and Willy Dutton);

(b)    Siblings Polly (mother of Albert Ebsworth, Sam and Tommy Burgamar) and Charlie Nockatunga;

(c)    Maggie and Tommy (parents of Nellie Flash and Angelina);

(d)    Kutji (mother of George Dutton);

(e)    Tarella and her children Elizabeth and Harry (Fred) Hartnett;

(f)    Norman Harding;

(g)    Siblings Nellie (mother of Lucy Harding) and Judy (mother of Donald David Gillis);

(h)    Jenny (mother of Alf Barlow); and

(i)    Neddie and Nancy (grandparents of Jimmy Sedeek),

collectively, the Wongkumara apical ancestors.

35    In reliance on the affidavits of Mr McKellar, Mr Hodge, Ms Bysouth, Mr Ebsworth, Ms Monaghan, Ms Ebsworth and Ms Wilson and the annexed family trees, the Wongkumara respondents submitted that each of those deponents are, or appear to be, descendants of one or more of the following asserted Malyangapa apical ancestors: Fanny Buugali Williams, Albert Bates, Nellie of Cobham Lake, Jerry Tu:pi and Topsy Crowe, notwithstanding that the deponents are Wongkumara People. They said that seven of the eight Wongkumara deponents descend from one or more of the Malyangapa apical ancestors but have, since 1996 when the first Wongkumara claim was filed (QUD 6030/1998), asserted native title rights and interests in the Wongkumara claim area, including the overlapping claim area, based on their being Wongkumara people who observe traditional Wongkumara laws and customs. They submitted, by way of example, that one of the Wongkumara apical ancestors, Charlotte, is a descendent of two Malyangapa apical ancestors, Fanny Buugali Williams and Tommy Williams.

36    They contended that the overlap in membership of the two native title claim groups indicates that the description of the Malyangapa Part B claim group is only a sub-group of the persons with native title rights and interests in the overlapping claim area, and therefore the application is not compliant with ss 61 and 62 and should not be allowed to proceed.

37    On the Wongkumara respondents’ argument, the Wongkumara and Malyangapa Peoples are not distinct groups operating under different systems of laws and customs and they cannot therefore proceed as separate claims in relation to the overlapping claim area pursuant to s 67.

38    The Wongkumara respondents said that the relationship between the Wongkumara and Malyangapa Peoples and their native title rights and interests in the overlapping claim area is not a simple binary one, nor should it be understood by reference to “single citizenship model”. Rather, they said there are some people in these family groups with a number of identities by virtue of, for example, one identity coming through their father’s country and another through their mother’s country. They referred to Dr Kwok’s report which notes that Alf Barlow, a member of the applicant for the Malyangapa claim, was described by linguist, Stephen Wurm, as “half Malyangaba … half Wanggumara”. Although the apical ancestors in the Wongkumara application are not described by reference to the “higher level of ancestry” of the apical ancestors in the Malyangapa Part B application, the Wongkumara respondents submitted that the two groups are members of the same families and have shared descendants. They submitted that it is not as simple as saying, if you are Wongkumara then you cannot also be Malyangapa, which is how the Malyangapa application seeks to deal with the asserted overlap in the claim groups.

39    The Wongkumara respondents further submitted that it is not possible to establish whether the descendants of the asserted Malyangapa apical ancestors are simply a sub-group, particularly having regard to their involvement in other native title proceedings and the identities they have asserted in a variety of areas. They said that the inability to determine such issues regarding who has made the overlapping claim for native title rights and interests in the area already subject to the Wongkumara claim, reinforces the invalidity of the Malyangapa Part B description. Specifically, they referred to Mr Neumann’s evidence as to:

(a)    the Malyangapa People being recognised in the Barkandji Traditional Owners #8 determination (NSD 6084/1998) (Barkandji-Malyangapa claim), which claim named many of the same apical ancestors as those in the Malyangapa Part B application. The Barkandji-Malyangapa claim was determined by consent in two parts on 16 June 2015 and 22 August 2017, and recognised Malyangapa interests in relation to the land and waters south of the area covered by the Malyangapa Part A and B applications;

(b)    the claim made in August 2013 by the Malyangapa People (SAD 251/2013) which overlapped with the existing Adnyamathanha claim (SAD 6001/1998), but which was discontinued in July 2015;

(c)    the Malyankapa claim (SAD 359/2015) which was made in September 2015 over a different area in South Australia on behalf of descendants of many of the same apical ancestors to those in the Malyangapa Part B application, but which was discontinued in November 2020; and

(d)    the involvement of Ms O’Donnell, one of the members of the Malyangapa Part B applicant, as a member of the applicant in the Wilyakali native title determination claim which was filed on 8 February 2012 (SAD 33/2012) over an area immediately south of the Malyankapa claim.

40    The Wongkumara respondents also said that the Malyangapa Peoples’ involvement in these other proceedings suggests that they are experienced in native title litigation.

41    In oral submissions, they also contended that it can be seen in Dr Kwok’s report that post-effective sovereignty there has been movement of peoples in the overlapping claim area, so whatever may have been the position at effective sovereignty, that position had changed over time. They said, therefore, the argument as to who were the right people for the overlapping claim area would not devolve down to a simple binary choice between it being either Wongkumara country or Malyangapa country. They also said that the evidence shows that the Malyangapa People moved out of the overlapping claim area and it belongs completely to the Wongkumara People. They said that because of this history, the overlapping claim area is not one in which it will be possible to find clear bright lines dividing territory and language groups.

42    Ms Hill, a Wongkumara woman, deposed that one of her family members was involved in the Malyangapa claim, noting that he described himself as Barkandji, Malyangapa, Wongkumara and Ngyampa, but had made the decision to identify as Malyangapa. She said that her family member told her she should leave the Wongkumara group and join the Malyangapa claim. The Wongkumara respondents contended that this shows that the Malyangapa People are “recruiting” people to join the Malyangapa Part B claim, and used this as further support for its contention that the claim has only been brought on behalf of only some of the native title holders in the area.

43    They relied on the remarks of Jagot J in Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638 at [34], where her Honour said:

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.

44    They also relied on the following remarks of French J (as his Honour then was) in Daniel v Western Australia [2002] FCA 1147; 194 ALR 278 at [11]:

It is of central importance to the conduct of native title determination applications and the exercise of the rights that flow from their registration, that those who purport to bring such applications and to exercise such rights on behalf of a group of asserted native title holders have the authority of that group to do so. Prior to the 1998 amendments there was no requirement under the Native Title Act that an applicant have such authority. The absence of that requirement led, in some cases, to conflicting and overlapping claims all carrying with them the statutory right to negotiate in respect of the grant of mineral tenements and the compulsory acquisition by Commonwealth or State Governments of native title rights and interests. Although many aspects of the 1998 amendments were the subject of controversy in the public and parliamentary debates that preceded their enactment, the need for communal authorisation of claims was largely a matter of common ground.

45    They argued that the proper identification of the native title claim group and authorisation by that group is necessary for compliance with s 61(1), so where that identification is flawed, it is fatal to the success of the application: see Harrington-Smith on behalf of the Wongatha People v Station of Western Australia (No 9) [2007] FCA 31; 238 ALR 1 at [1172] (Lindgren J). They submitted that because the authorisation meeting was not sufficiently representative of the claim group, the Malyangapa applicant does not have authority to make the claim and deal with matters arising in relation to it: see Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [43] (French J, as his Honour then was); State of Western Australia v Strickland [2000] FCA 652; 99 FCR 33 at 52-53 (Beaumont, Wilcox and Lee JJ); Moran v Minister of Land and Water Conservation for the State of New South Wales [1999] FCA 1637.

The flawed decision-making issue

46    The Wongkumara respondents also argued that the Malyangapa Part B application was not properly authorised because the process adopted did not satisfy the requirements of s 251B of the NTA.

47    It will be recalled that s 251B(b) relevantly provides that where there is no process of decision-making under traditional laws and customs, a native title claim group may authorise a person or persons to make a native title determination application, if:

….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…in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

48    The Wongkumara respondents said that the process did not comply with s 251B because :

(a)    relevant Wongkumara persons and their families who are descendants of the Malyangapa apical ancestors and who fell within the categories of people invited to the authorisation meeting did not receive any notice, or at least not adequate notice, of the meeting, and that those who chose not to attend the meeting only found out about it incidentally. It was also said that many of them lived far away from Broken Hill, and there were difficulties in attending due to COVID-19 restrictions. The letter dated 17 February 2021 sent to SANTS by Mr Neumann put the Malyangapa People on notice that they opposed the claim being authorised; and

(b)    SANTS, the organisers of the authorisation meeting, wrongly imposed a requirement that the Malyangapa applicant be decided through an election in which voting must be in person, thereby pre-determining an issue which s 251B required to be determined by attendees at the meeting. They said that the pre-determination of the requirement that only those who attended would be permitted to vote was particularly inappropriate in light of the COVID-19 restrictions that were in place around Australia on 20 February 2021. Specifically, they submitted that from 12 February 2021 to 26 February 2021, Victorian residents were under stay-at-home orders, and this applied to Mr Hodge who resides in Echuca, Victoria and Ms Bysouth, who resides in Goornong, Victoria. They noted the higher risk that COVID-19 presents to Aboriginal Australians and the potential concern that this may have presented to people wishing to have their vote counted at the authorisation meeting.

49    They relied on Booth (at [31]) where Jagot J said that members or likely members of a native title claim group must be given sufficient notice of the authorisation meeting such that they have “a fair opportunity to decide whether or not to attend that meeting”. Her Honour concluded in that case that the notice failed to satisfy that requirement because the claim group description was improperly narrow, omitting certain ancestors and thus concealing lines of descent to members or likely members of the claim group (at [31] and [44]). The Wongkumara respondents submitted that notwithstanding that the claim group description for the Malyangapa Part B application differed slightly from the description of the invitees for the authorisation meeting in the Notice, the invitees were not given advance notice of the amended claim group for the Malyangapa Part B claim.

50    On their argument, because authorisation is fundamental to the legitimacy of a native title determination application, it is an issue that may appropriately be addressed in a strike-out application, citing Mansfield J’s decision in Hazelbane v Northern Territory of Australia [2008] FCA 291 at [13] and [14]. The Wongkumara respondents pointed to a number of native title claims which had been dismissed, prior to trial, on the basis of non-compliance with the authorisation requirements of the NTA, citing Lapthorne v Indigenous Land Corporation [2008] FCA 682 at [13]-[15] (Siopis J); Walker v South Australia [2014] FCA 962 at [72], [77]-[84] (Mansfield J); Hazelbane v Northern Territory [2014] FCA 886 (Hazelbane 2014) at [130], [133]-[136] (Mansfield J); MT (deceased) v Western Australia (No2) [2015] FCA 697 at [55]-[57] (Barker J). They also relied on Van Hemmen on behalf of the Kabi Kabi People (No 3) [2007] FCA 1185 at [23]-[27] where Collier J found that a combination of a lack of evidence of comprehensive consultation in bringing a native title claim, and positive evidence by senior members of the relevant Indigenous community that they were not consulted and did not authorise the claim, can indicate there is no requisite authority for the purposes of section 61 of the NTA. They also referred to authorities in which a defect in authorisation was found following a full trial, to illustrate the benefit of addressing any issue regarding authorisation early in the proceeding: see, for example, Harrington-Smith; Risk v Northern Territory [2006] FCA 404.

51    The Wongkumara respondents said the decision-making process which authorised the Malyangapa Part B application was not compliant with s 251B because it was not “agreed to and adopted, by the persons in the native title claim group”; and therefore the application does not comply with ss 61 and 62 and should be struck-out.

The Malyangapa applicant’s submissions regarding authorisation

The sub-group issue

52    The Malyangapa applicant argued that the evidence they filed in the application is sufficient to show that the Malyangapa People are a distinct descent-based group which is linguistically and territorially distinguished from surrounding groups, whose members, according to their traditional laws and customs, hold the common or group rights or interests comprising the particular native title claimed. They contended that the Malyangapa native title claim group is not a sub-group of the persons who claim to hold native title rights and interests in the overlapping claim area. On that basis they submitted that the dispute in relation to native title rights and interests in the overlapping claim area is between discrete groups, as provided for by s 67 of the NTA, and the claim by Wongkumara People over the overlapping claim area does not show that the Malyangapa Part B application was not authorised in compliance with s 61(1) of the NTA.

53    On their argument, the Malyangapa claim group is descended from the pre-sovereignty land-owning group who occupied the land under traditional laws and customs, and have maintained a continuous physical presence on or near their country, including in relation to the overlapping claim area. They noted that the Kwok report supports the connection of the Malyangapa People to the overlapping claim area, and challenges the proposition that the Malyangapa apical ancestors were not Malyangapa People who held rights and interests in the overlapping claim area under traditional Malyangapa laws and customs; particularly in relation to Alf Barlow, Jerry Tu:pi (stepfather of George Dutton), Nellie of Cobham Lake and Albert Bates. They also queried the extent of the overlap in the Wongkumara and Malyangapa claim groups, noting that Dr Kwok did not find any basis for tallying the Wongkumara apical ancestor, “Nellie, mother of Lucy Harding”, with the Malyangapa apical ancestor, “Nellie of Cobham Lake”.

54    They argued that Dr Kwok’s opinion, including in relation to Charlotte, Trella/Tarella and George Dutton, is consistent with the opinions of Dr Andrew Sneddon and Dr Lee Sackett, the experts engaged by the States of Queensland and NSW in the Wongkumara application. For example:

(a)    Dr Kwok considers that Charlotte, the likely daughter of Fanny Buugali Williams and Tommy Williams (who are Malyangapa apical ancestors), did not hold rights and interests in the overlapping claim area under Wongkumara law or custom despite becoming a member of the Wongkumara community. The Malyangapa applicant said that Charlotte’s place in the Wongkumara community does not provide any basis for the expansion of Wongkumara rights and interests into the overlapping claim area. As such, they contended that neither Charlotte’s descendants, nor any other person, can hold rights and interests in the overlapping area under a Wongkumara identity or under Wongkumara laws and customs. In support of this proposition, they referred to Dr Sackett’s opinion that the claim that the Wongkumara People “incorporated” Charlotte, Albert Ebsworth and Polly is “wholly problematic”; and

(b)    Dr Kwok said that the Wongkumara apical ancestor, Trella/Tarella is not Malyangapa but is recognised as a Wongkumara woman; which reflects Dr Sackett’s conclusion about Trella/Tarella.

55    The Malyangapa applicant also argued that, while some of the Wongkumara claimants may be able to trace their descent from a Malyangapa apical ancestor, their identification as Wongkumara and their claims that they hold rights and interests in the overlapping claim area under Wongkumara laws and customs are incompatible with them being members of the Malyangapa claim group. In particular, they referred to the requirement that claim group members in the Malyangapa Part B application must be “identified and accepted as a part of the Malyangapa community under traditional law and custom”. On that basis as well, they argued that there is no overlap in claim group membership, and the Wongkumara People have no basis upon which to claim to hold native title rights and interests in the overlapping claim area as members of the Malyangapa claim group. They further submitted that the fact that the Malyangapa People were separately recognised in the Barkandji-Malyangapa claim, and that some members of the Malyangapa claim group identify as Barkandji, is not incompatible with Malyangapa law and custom or membership of the Malyangapa claim group.

56    They contended that the power to strike-out a native title determination application should be exercised sparingly and with caution and only when it is satisfied that the moving party has made out a very clear case: Williams v Grant [2004] FCAFC 178 at [48], [49], [84] (Lander J with North and Dowsett JJ agreeing). They said that s 84C was introduced due to “concern at the time about frivolous, unsubstantiated claims in the system denying justice to those with genuine, serious claims”, and this was not such a case: Forrest on behalf of the Tjalkadjara Native Title Claim Group v State of Western Australia [2021] FCA 399 at [13-[15] (Colvin J) citing Bodney v Bropho [2004] FCAFC 226; 140 FCR 77 at [48] (Stone J).

57    They acknowledged that, while the most common circumstance in which an application does not comply with s 61(1) is where it is clear that the claimant group is a sub-group or subset or part of a native title claim group, the authorities make it clear that caution needs to be exercised before reaching such a conclusion on a strike-out application: Brown v State of South Australia [2009] FCA 206 at [20] (Besanko J). For example, in Williams, Lander J stated at [58]-[59] (agreeing with Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [45]) that it may be difficult to decide whether an application under s 84C should succeed, noting the example of deciding whether an applicant has been properly authorised by the native title claim group on the papers, and it may therefore be appropriate to hear and determine it at the same time as the main application.

58    The Malyangapa applicant argued that the decisions in Booth and Bolton are distinguishable from the facts in the present case. In Booth, the description of an apical ancestor in the meeting notice would not have alerted the descendants of that ancestor that the notice was addressed to them, and another descent line was not included in the notice. In Bolton, French J (as his Honour then was) was dealing with the combination of numerous native title claims which involved the notification and authorisation of replacement applicants in each claim under s 66B of the NTA. Attendance at the authorisation meetings did not correlate with claim group membership, resulting in his Honour’s finding at [45] (to which [46] refers) that, “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”.

59    They also submitted that it is not clear who the Wongkumara respondents say the Malyangapa claim group are a sub-group of. They relied on the fact that, in effect, the Wongkumara respondents accepted that it is not possible to establish whether the Malyangapa native title claim group are simply a sub-group, and argued that in those circumstances it is not appropriate to strike-out the Malyangapa application.

The flawed decision-making issue

60    The Malyangapa applicant submitted that they were authorised to make the Malyangapa Part B application in accordance with s 251B.

61    They said, as the evidence shows, that the authorisation meeting was the culmination of three previous meetings conducted by SANTS:

(a)    a meeting in Broken Hill on 13 and 14 July 2019 attended by 23 Malyangapa people who made the decision to pursue a native title determination claim in respect of their country;

(b)    a meeting in Broken Hill on 18 and 19 January 2020 attended by 32 Malyangapa people at which 12 representatives from each of the family groups within the claim group were appointed to work with Dr Kwok to research and prepare the claim; and

(c)    a meeting on 5 December 2020 attended by 41 Malyangapa people at which authorisation of the Malyangapa claims was discussed.

62    They noted that the authorisation meeting on 20 February 2021 was held in Broken Hill, which is approximately 332 kms south of Tibooburra and approximately 50 kms south of the southern boundary of the Part A section of the Malyangapa application. Broken Hill has an airport and the necessary facilities, and it was where Malyangapa claim group meetings had been held previously.

63    They said that the evidence shows that the Notice for the authorisation meeting was posted and emailed to the known members of the native title claim group, and was also published in the Barrier Truth and the Sydney Morning Herald newspapers. The Notice clearly identified the Malyangapa Part B claim area as overlapping the claim area in the Wongkumara application, and stated that persons could nominate and be considered in the election of the Malyangapa applicant by telephone. They accepted that the Notice stipulated that voting must be in person.

64    They also said the evidence shows that 48 members of the Malyangapa native title claim group attended the authorisation meeting, and that two of the seven Wongkumara deponents who descend from the Malyangapa apical ancestors (Mr McKellar and Ms Wilson) dialled into the meeting (but could not vote) and the other eligible Wongkumara invitees did not attend. The attendees of the meeting authorised 12 people to comprise the Malyangapa applicant, and to file the Malyangapa Part A and Part B applications. The minutes from the Authorisation Meeting show that 12 resolutions were passed in total; the following are relevant to the authorisation issue:

(a)    sufficient notice was given for the meeting, and the people present at the meeting were sufficiently representative of the claim group to make decisions about the native title determination application (Resolution 1 passed with majority votes in favour);

(b)    under the claim group’s traditional laws and customs there is no decision-making process for authorising an applicant to make a native title determination application. The process adopted included that: (i) there would be a reasonable opportunity for informed discussion before a decision is made; (ii) each claimant present and over the age of 18 could vote on resolutions; (iii) voting was by a show of hands; and (iv) resolutions would be passed by a majority of those claimants present and voting (Resolution 2 passed with all votes in favour);

(c)    the claim group description was amended so that it was not restricted to “biological” descendants only (Resolution 3.1 passed with 18 in favour and 17 against);

(d)    the claim group description was approved (Resolution 3 passed with 20 votes in favour, 6 votes against and 8 abstentions);

(e)    12 people within the native title claim group were authorised to be the named applicant (Resolution 7 passed with all votes in favour); and

(f)    the applicant members were elected through a process by which two people were nominated by each of the six families descended from the Malyangapa apical ancestors (Resolution 11 passed with all votes in favour).

65    The Malyangapa applicant said that the passage of Resolution 2 supports its contention that the decision-making process at the authorisation meeting was not pre-determined. It also submitted that no persons who did not identify as Malyangapa attended the authorisation meeting seeking to participate in the decision-making process, as provided for in the Notice. The only complaint about the meeting has come from those who refused to attend, and their complaint shows that they had notice of the meeting. Nor did the letter from their solicitor assert that the decision-making process had been predetermined; rather it focused on their opposition to the Part B claim being authorised at all. On their argument, this confirms that the claim group description in the Malyangapa Part B application is consistent with the description of the people invited to attend the authorisation meeting by the Notice, and that there was no defect in the authorisation process.

66    They submitted that given that Mr Neumann wrote to SANTS three days before the 20 February 2021 authorisation meeting, it can be inferred that any Wongkumara people who claimed to have native title rights and interests in the overlapping claim area had sufficient notice of the authorisation meeting and had a reasonable opportunity to participate in the meeting. They noted that the Notice offered travel and accommodation assistance to facilitate attendance but no Wongkumara People chose to attend in person, instead they objected to authorisation by way of legal correspondence. It is said that, in effect, the Wongkumara respondents sought to unilaterally determine an alternate decision-making process to that which was adopted, which was not open to them.

67    The Malyangapa applicant also argued that the authorities on which the Wongkumara respondents relied are extreme and can be distinguished from the present case. For example:

(a)    in Lapthorne, the applicant failed to provide any evidence of authorisation;

(b)    in Walker, reliance was placed on preceding meetings, notification of the principal meeting was seriously deficient, it was not clear who had attended or who had voted, and persons who identified as native title holders but opposed the claim were excluded from the meeting;

(c)    in Hazelbane 2014, there was no cogent evidence that either by a traditional system of laws and customs, or by any conventional system, that authorisation had occurred; and

(d)    in Van Hemmen, the claim was said to be authorised by a number of unidentified “Elders” but at [23], Collier J accepted that there was no evidence as to how and why the unidentified Elders were recognised as such. Her Honour also found that “other persons” who purportedly supported the authorisation were not identified, and there was evidence that claimed consultations with Elders and family members who were descendants of the named apical ancestors had not in fact occurred.

68    In the alternative, they submitted that ss 84D(3)(a) and 84D(4) of the NTA were enacted to provide that, after balancing the need for due prosecution of the application and the interests of justice, an application for a determination of native title may be heard even if it has not been properly authorised, citing Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v Queensland (No 2) [2010] FCA 643; 204 FCR 1 at [916]-[918] (Finn J). It contended that if the Court determines that the Malyangapa Part B application does not comply with s 61 of the NTA because it was made by a person or persons who were not authorised by the native title claim group to do so (see s 84D(3)(a) of the NTA), the circumstances are such that it is in the interests of justice that the Court exercise its discretion pursuant to s 84D(4)(a) to hear and determine the application despite the defect in authorisation.

69    They reiterated that the only complaint about the authorisation process had come from the Wongkumara People, who oppose the Malyangapa Part B application, and their complaint is self-serving, citing Sandy on behalf of the Yugara/Yugarapul People v State of Queensland [2012] FCA 978 at [43] (Reeves J); Forrest at [109]. They also argued that the Malyangapa People will suffer very serious consequences if their native title application is struck-out or summarily dismissed rather than being determined on its merits.

70    On the issue of compliance with s 62, the Malyangapa applicant referred to the decision of the National Native Title Tribunal to decline to register the Malyangapa Part B application. The delegate of the Native Title Registrar found that the application did not satisfy all of the conditions in s 190B and s 190C of the NTA and therefore did not accept the claim for registration. Specifically, the delegate found that the application did not meet the requirements of s 190C(3), which requires that no person included in the claim group was a member of a native title claim group for any previous application. The Malyangapa applicant however emphasised that the Tribunal concluded that the application satisfied all the requirements of s 62, and the Malyangapa applicant also noted that it was not necessary to meet s 62(1A)(d) and (c) of the NTA as the claim was authorised prior to 25 March 2021 when those sections came into effect.

Consideration

71    Section 61(1) contemplates authorisation of the applicant in a native title determination application by the persons who hold native title, not those who claim to be native title holders: see Akiba at [913]. As Lindgren J noted in Harrington-Smith at [1190], the authorisation issue can, in consequence, only be determined finally after it has been determined whether there are and, if so, who are, the actual holders of the native title claimed. This curiosity in s 61(1) supports the view that in cases where there is disputed evidence as to who holds native title in the area, it may not be appropriate to resolve those issues on an interlocutory application to strike-out a claim: see Fourmile on behalf of the Gimuy Walubara Yidinji People v State of Queensland [2018] FCA 572 at [116] (Robertson J).

72    The authorities show that a clear purpose of s 84C is to avoid further expenses relating to an application that is “fatally flawed”, even though expense will be incurred on the strike-out motion itself: Reid v State of South Australia [2007] FCA 1479 at [60] (Finn J). Having said that, it is established that where evidence on a strike-out application and the evidence on the main application may overlap, the court may consider hearing the strike-out application at the same time as the main hearing: see Hazelbane at [14]-[15] where Mansfield J explained:

It is, therefore, hard to resist the temptation of determining such a fundamental issue as authorisation before a full trial of the native title determination application with the very substantial resources which are then involved. To do so has the attraction of expedition and economy. Certain recent decisions of the Court have illustrated that proper authorisation is a matter which should not be overlooked, and the possibility of a challenge, at an early point in the proceeding: see e.g. Risk v Northern Territory [2006] FCA 404; Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1. The mere complexity of an issue, or the fact that extensive argument may be necessary to demonstrate that the claim is untenable, is not a reason not to dispose of an application summarily: General Steel Industries Inc v Commissioner for Railways (NSW) 112 CLR at 130 per Barwick CJ.

Section 84C(2) requires the Court to consider an application under s 84C(1) before any further proceedings take place in relation to the main application. But that does not require the Court to hear and determine the question as to whether the application has, in fact, been authorised as required by s 251B in all cases. It is only where the application is obviously without merit, that is, where there is no realistic prospect on the material before the Court of the authorisation being shown to have existed at the time it was purportedly granted, that an order will be made summarily dismissing or striking out the main application under s 84C. Sometimes an applicant faced with an application under s 84C may seek to amend the application to cure an identified deficiency (as discussed by Lander J in Williams v Grant at [57]). Where the application is not clearly without merit, so that it is not dismissed summarily or struck out, the Court may consider directing that an application under s 84C be heard and determined at the same time as the main application. That is a course of action which Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [45] suggested. The Court may also consider directing that the question of authorisation be heard and determined as a separate question, and be heard and determined prior to the hearing of the main application, under O 29 of the Federal Court Rules. That is a matter for each particular case and its particular circumstances. Whether such an order were appropriate would depend upon the extent to which there would be an overlap in the evidence likely to be called relating to authorisation and on the main application and a range of factors. The apparent attraction of expedition and economy may be misleading. Very often, the proposed evidence of authorisation is to be given by persons who also will give “connection” evidence and evidence of traditional laws and customs. There are often sound reasons in such circumstances why the separate trial of issues should not be ordered: Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406; Energy Australia v Australian Energy Ltd [2001] FCA 1049 at [8] per Stone J. There are also countervailing considerations of potential delay through splitting of issues and the separate processes which follow that course: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130. So, not uncommonly, as occurred in both Risk and Harrington-Smith(referred to above) the issue of authorisation was heard and determined as part of the principal hearing of the main application.

(Emphasis added).

His Honour’s remarks are apposite in the present case.

73    The evidence of the various Wongkumara deponents who put on affidavits in support of strike-out or summary dismissal is directly opposed to that of the various Malyangapa deponents. Broadly, the Wongkumara witnesses said that they had always been told by their parents and relatives that the overlapping claim area, particularly the area around Tibooburra, had always been Wongkumara country and until recently they had never heard anyone suggest that it was in fact Malyangapa country. For their part, the Malyangapa witnesses said they had been told by their parents and relatives that the overlapping claim area had always been Malyangapa country, and it had never been suggested by anyone that Wongkumara country extended that far south. Both of the competing positions taken by the lay witnesses are supported by opinions obtained from expert anthropologists. The Malyangapa Part B application is supported by the Kwok report; and the Wongkumara application is supported by Professor Sutton’s opinion, although because of the lateness of the Malyangapa application he has not been asked to provide an opinion in relation to the Malyangapa People’s asserted native title rights and interests in the overlapping claim area.

74    The essence of the Wongkumara respondents’ contention that the Malyangapa Part B application is not properly authorised is that the Malyangapa claim group are not distinct from the Wongkumara claim group, and is instead a sub-group of those with native title rights and interests in the overlapping claim area. On that basis it is asserted that the Malyangapa applicant cannot therefore bring a separate, overlapping claim. However, as I have said, the issue of whether the Malyangapa application was properly authorised turns, to a large extent, on the question of who the right people are for the overlapping claim area. That question is factually complex and contentious. The position may have been different if the evidence was clear, but it is not. This is not a case where the Malyangapa Part B application is plainly or self-evidently brought by a sub-group of those persons claiming to have native title rights and interests in the overlapping claim area: see e.g. Fourmile at [117]; Risk v National Native Title Tribunal [2000] FCA 1589 at [61] (O’Loughlin). The Wongkumara respondents themselves accepted that the claims of the two groups cannot properly be analysed on a binary basis, and they went as far as to say that “it is not possible to establish whether the descendants of the [asserted Malyangapa apical ancestors] are simply a sub-group”. Nor is it the case that the authorisation of the Malyangapa Part B application was clearly defective.

75    In my opinion it is not appropriate to determine whether the starting point of the Wongkumara argument – that the two claim groups are not separate – is correct without reaching a concluded view on the lay and expert evidence which cannot occur in a one-day hearing based on incomplete and disputed lay and expert evidence, not tested by cross-examination. The complex and contentious questions involved in the case are not suitable to be disposed of in an application of this type.

76    It is also relevant that the Malyangapa People will suffer serious adverse consequences if their native title application is struck-out without it being determined on its merits following a full hearing of the relevant evidence. It is relevant too, as the Full Court emphasised in Fazeldean at [34], that native title litigation involves vindicating communal rights on behalf of not only the living claim group, but their ancestors and generations to come. Their Honours explained:

…[L]itigation under the Native Title Act is not ordinary private inter partes litigation. Sought to be vindicated are rights of a communal nature based on occupation and a physical and spiritual connection between land and people that has endured for possibly millennia. The vindication is not only for the living in the claim group, but for their ancestors and for generations to come. How that context affects the operation of principles such as res judicata under or in the context of the Native Title Act is a large question, and is one of great importance. Such a question is not apt to be disposed of on a summary application.

77    It can be argued that the claim that the flawed decision-making issue by reason of the asserted pre-determination of the voting method, does not depend on deciding which group comprises the right people for the overlapping claim area. But in my view the two issues are related. If it be the case that the Malyangapa People have native title rights and interests in relation to the overlapping claim area, then those people have made no complaint about the notification and authorisation process. The only complaint about that process has been by the Wongkumara People and, if it eventuates that the overlapping claim area is Malyangapa country, their complaint should carry little weight. It is the type of complaint which, if such a defect was made out, could reasonably be the basis of a decision under s 84D(4)(a) of the NTA to hear and determine the application despite the defect.

78    The question of authorisation is best decided at trial, not in the present application.

SUMMARY DISMISSAL – NO REASONABLE PROSPECT OF SUCCESS

79    In the alternative to their strike-out application under s 84C of the NTA, the Wongkumara respondents submitted that the proceeding should be summarily dismissed on the basis that the Malyangapa Part B applicant has no reasonable prospect of success pursuant to r 26.01(a) of the Rules and s 31A of the FCA.

80    It is uncontroversial that independent of the power under s 84C of the NTA, the Court may summarily dismiss an application for native title under s 31A of the FCA, on the basis that it has no reasonable prospect of success. In Velickovic v State of Western Australia [2012] FCA 782 at [31], where McKerracher J explained:

It is necessary to treat any application under s 84C(1) NTA in the same cautious manner as applications under the previous O 20 r 2 of the former Federal Court Rules or now under r 26.01 of the Federal Court Rules 2011 (FCR) even though the 2011 Rule has also replicated the provision under s 31A of the Federal Court Act which ‘lowers the bar’ for strike outs. Despite availability of the lower test (as in Brown v State of South Australia [2009] FCA 206), I have approached this application on the basis that the Court’s power should be exercised only where the claim is untenable and on the version of evidence favourable to the respondents to the strike out application. A clear case must be made out even though extensive argument may be necessary to adduce evidence to establish the futility of a case…

81    In Walker at [19]-[20], Mansfield J held that it was appropriate to apply the less onerous statutory test under s 31A of the FCA in an application brought under r 26.01(a), particularly given that s 84C of the NTA does not prescribe the test to be applied.

The Wongkumara respondents’ submissions

82    The Wongkumara respondents submitted that even reading the evidence favourably to the applicant, it is clear that the Malyangapa Part B claim has not been made on behalf of all of the persons who hold native title rights and interests in the overlapping claim area, in that they are not sufficiently clearly described for it to be possible to discern who the claimants are and whether the Malyangapa applicant has been authorised by all the people who hold native title rights and interests in the claim area. They relied upon essentially the same arguments as they did in the strike-out application under s 84C of the NTA, which I need not reiterate.

83    They contended that the Court should only exercise its discretion under s 31A where the claim as expressed is untenable and cannot possible succeed, citing Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 91-2 (Dixon J, as Honour then was); General Steel Industries v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 129-30 (Barwick CJ). That submission, however, misstated the test under s 31A which is less stringent than the “no reasonable cause of action test” in General Steel: see Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60; 167 FCR 372 at [124] (Gordon J); Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; 259 ALR 319 at [25] (Spender, Graham and Gilmour JJ). I proceed on that basis.

84    The Wongkumara respondents argued that, due to the compounding effect of the errors in the Malyangapa Part B application, there is no prospect of retrospective authorisation of the Malyangapa applicant by a different group of people and therefore the claim should be summarily dismissed. They contended that summary dismissal may still be appropriate even where the question raised is complex, citing the principles outlined by McKerracher J in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 at [3].

Consideration

85    The principles relevant to the Court’s exercise of its discretion under s 31A were recently summarised by Griffiths J in Harkin on behalf of the Nanatadjarra People v State of Western Australia (No 2) [2021] FCA 3, largely by reference to the McKerracher J’s explanation of the principles in Buurabalayji Thalanyji at [3]. His Honour said the following at [12]-[14]:

[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]).

86    The Wongkumara respondents had the onus to satisfy the Court that it is appropriate to summarily dismiss the Malyangapa Part B application on the basis that the claim has no reasonable prospect of success. They did not persuade me in that regard.

87    First, that is so because, generally, the onus on the moving party in an application under s 31A of the FCA is a heavy one: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [18] (Edmonds J); Australian Competition and Consumer Commission v FDRA Pty Ltd [2016] FCA 429 at [27] (White J).

88    Second, the lay evidence adduced by the Malyangapa deponents and the Kwok report show that this not a claim that is fanciful or plainly without merit: Rogers v Assets Loan Co Pty Ltd [2008] FCA 1305; 250 ALR 82 at [41] (Logan J). In my view it is appropriate to approach the summary judgment application on the view of the evidence most favourable to the respondents to the strike-out application: Velickovic at [31]. That evidence is, of course, contestable, but I am satisfied that there are real questions of fact and law that should be decided at trial: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256 at [46] (Reeves J). Where there are aspects of the evidence which are contestable or which have an ambivalent character, there are reasonable prospects of success within the meaning of s 31A and the matter should proceed to hearing: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; 236 ALR 720 at [45] (Rares J).

89    Third, the question as to whether the Malyangapa People have native title rights and interests in relation to the overlapping claim area will require an assessment of the competing lay evidence and expert opinions and determination of questions of some factual and legal complexity.

90    In assessing whether the proceeding has a reasonable prospect of success, the Court must be “very cautious” not to do a party an injustice by summarily dismissing the proceeding where contested evidence might reasonably be believed one way or the other: Boston Commercial Services at [45]. Particular caution is appropriate before granting summary dismissal in circumstances where there are factual disputes and the evidence is not in its final form: Boston Commercial Services at [43]-[45]. Summary judgment is inappropriate where there is a real dispute about the relevant facts and evidence: PZ Cussons (International) Ltd v Rose Dora Imports Pty Ltd [2007] FCA 1642; 74 IPR 372 at [14] (Kenny J); Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55.

91    Here, the lay evidence in relation to the competing claims is diametrically opposed, it is far from its final form and it was not tested by cross-examination. The expert evidence is also contentious and incomplete. In such circumstances it is impossible to conclude with confidence that the Malyangapa application has no reasonable prospect of success and therefore it is not appropriate to take the serious step of summarily dismissing it: Danthanarayana v Commonwealth of Australia [2016] FCAFC 114 at [4] (Jagot, Bromberg and Murphy JJ).

SUMMARY DISMISSAL – ABUSE OF PROCESS

The Wongkumara respondents’ submissions

92    Finally, and in the alternative, the Wongkumara respondents sought orders to summarily dismiss the Malyangapa Part B application on the basis that it is an abuse of process pursuant to r 26.01(d) of the Rules. They submitted, amongst other things, that there was great delay in bringing the Malyangapa application in circumstances where:

(a)    the Malyangapa People have known that they could make a native title determination application in relation to country in NSW since 1998. The Malyangapa Part B application was made 25 years after the first Wongkumara claim was lodged; 13 years after the present Wongkumara application was filed; and after the Wongkumara application was set down for trial. They said that the entitlement to have one’s interests taken into account does not amount to an entitlement to be heard however late, citing Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 2) [2021] FCA 194 at [38] (White J);

(b)    no Malyangapa person has ever sought to be joined to the Wongkumara application to assert Malyangapa native title rights and interests in relation to any part of the Wongkumara claim area, although their affidavits show that Malyangapa people were aware of the Wongkumara application;

(c)    the Malyangapa People could have applied to be joined as respondents to the Wongkumara application at any time since 2008 but did not do so; and

(d)    SANTS offered to assist the Malyangapa claimants as early as 2012. The Malyangapa People allegedly authorised a claim over country in NSW in 2013, but did not file a claim in relation to country in NSW until 2021.

93    They submitted that the Wongkumara People will suffer real prejudice and expense in seeking to address the Malyangapa claim in relation to the overlapping claim area, and argued that permitting the Malyangapa application to remain on foot will bring the administration of justice into disrepute. Specifically, they submitted that:

(a)    the Wongkumara applicant prepared and filed its evidence of lay witnesses without any need to address the assertion of a Malyangapa interest in the overlapping claim area, and it will be necessary for it to retake much of the lay evidence already provided on country (in 2003) and to file substantial further expert evidence. The delay will extend the final resolution of the proceedings by a considerable period of time and at least 11 Wongkumara witnesses who could have given evidence in relation to the overlapping claim area have died, and other senior claim group members are now aged and infirm;

(b)    the defence of the Malyangapa Part B claim will result in significant additional costs for the Wongkumara applicant in re-interviewing witnesses, obtaining a further expert anthropologist’s report, re-considering genealogies, and a vast amount of secondary literature, all whilst coping with the restrictions due to the COVID-19 pandemic;

(c)    responding to the Malyangapa Part B application will divert resources away from preparation of the other aspects of the Wongkumara application, and there is a real prospect that addressing the overlapping claim will lead to a situation where the Wongkumara applicant cannot comply with the existing timetabling orders, and will run out of funding;

(d)    the late filing of the Malyangapa Part B application has also added to the emotional strain for Wongkumara elders who have been waiting for 20 years to have their claim determined. Their position is similar to that in TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2016] FCA 553 in which Rares J dismissed an overlapping claim because it was an abuse of process as a result of extreme and unjustified delay. His Honour said (at [115] – [116]) that litigation is stressful for any witness, and that this can be so particularly in native title litigation; noting that “the stresses on witnesses of delays and interruptions to the ordinary process of litigation cannot be gainsaid”;

(e)    the Wongkumara applicant’s expert witness, Professor Sutton, is in ill health, which may mean it will be necessary to brief another expert to adopt Professor Sutton’s report and be cross-examined on it. That process will be much more complex and extensive if it is necessary to respond to the Malyangapa Part B application, that issue having not been covered by Professor Sutton in his previous reports as the Malyangapa applicant had not made any claim at that time;

(f)    native title claims are expensive to run. Hearing evidence on country can be very expensive given the logistics of transporting witnesses, counsel, instructing solicitors, liaison staff and possibly experts. With ten days set aside for the hearing and at least an equal number of days involved in preparation, it is likely that the costs will run into several hundred thousand dollars, and it will be even more expensive to deal with the Malyangapa Part B application as well; and

(g)    the Wongkumara applicant already has arrayed against it four Government backed respondents with superior financial and physical resources. Collectively, it estimates based on previous court appearances that around 16 other lawyers are engaged by the present respondents. The Wongkumara People, who are self-funded, simply cannot match those resources and the position will be worsened if the Malyangapa Part B application is allowed to proceed.

94    The Wongkumara respondents also rejected the attempts of the Malyangapa applicant to shift the blame for their delay onto NTS Corp, noting that it is not party to the proceeding and cannot defend itself. Amongst other things, they submitted that:

(a)    the Malyangapa claimants made a deliberate, tactical choice not to pursue a claim in NSW until the Barkandji-Malyangapa claim had been resolved. They said that decision is not a reasonable or acceptable explanation for the delay or for imposing the oppressive burden now sought to be imposed on the Wongkumara People through the lateness of the Malyangapa Part B application; and

(b)    Dr Kwok was instructed by SANTS in January 2018 and her report was finalised in January 2019, which report has still not been provided to the Wongkumara respondents. Now, the Wongkumara applicant does not have the same amount of time as Dr Kwok took, to prepare a report in response, and the preparation of any responsive report will be hampered due to the COVID-19 pandemic and the limited time available prior to trial.

95    They relied on Mortimer J’s finding in Lawson on behalf of the Badimaya Barna Guda People v State of Western Australia [2020] FCA 104 at [117], that a lack of funding is not a reasonable excuse for delay. On their argument, the Malyangapa claimants were aware for more than 20 years that a native title claim could be brought and yet there was little or no evidence of the Malyangapa People taking steps to obtain funding or other significant steps to advance their claim between 1997 and 2013. They reiterated that the Wongkumara native title claim group has always been self-funded.

96    They contended that the circumstances of the present case can be distinguished from those in Nyamal Palyku Proceeding [2020] FCA 428 at [243]–[244], where Reeves J did not accept that the Palyku People should not be permitted to proceed with a claim (Palyku #2) that overlapped with part of the Nyamal People’s claim area on the basis that it would bring the administration of justice into disrepute. The Wongkumara respondents submitted that the two parties in that case had a long history of bringing claims against each other and the filing of the Palyku #2 claim thwarted the previously held expectation that the two groups could resolve the dispute through mediation. Here, they said that the situation is different given the Malyangapa applicant has never brought a claim overlapping with the Wongkumara application until now.

97    They also submitted that the Malyangapa applicant will not have been treated unfairly by having its claim dismissed. They contended that the Malyangapa People could have brought their case at any time from 1996 onwards but chose not to. They said that the failure to bring the Malyangapa Part B application in a timely way, and to have brought the claim after the Wongkumara application was given a date for trial, undermines the broader public purposes of the NTA, s 37M FCA and public confidence in the administration of justice. They contended that any potential unfairness to the Malyangapa People if the Part B application is dismissed is mitigated by the fact that their native title rights interests were recognised in the Barkandji-Malyangapa claim and that the Malyangapa Part A application would continue.

98    Finally, they contended that the party seeking dismissal of a proceeding due to abuse of process does not carry a “heavy” onus as alleged by the Malyangapa applicant, citing Williams v Spautz [1992] HCA 34; 174 CLR 509 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ). On their argument that test only applies in cases where the tort of abuse of process is alleged and not to the Court’s inherent jurisdiction to make orders staying proceedings as abusive: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at 262-263 [3]-[5] (Gleeson CJ, Gummow, Hayne and Crennan JJ).

Consideration

99    In Cox v Journeaux [No 2] [1935] HCA 48; 52 CLR 713 at 720, Dixon J explained:

A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.

100    In Moti v The Queen [2011] HCA 50; 245 CLR 456 at [10], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:

As four members of this Court said in Batistatos v Roads and Traffic Authority (NSW) [(2006) 226 CLR 256 at 265 [9] per Gleeson CJ, Gummow, Hayne and Crennan JJ; [2006] HCA 27], “[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories”. In Ridgeway v The Queen, Gaudron J stated [(1995) 184 CLR 19 at 74-75; [1995] HCA 66] that the power extended to proceedings that are “instituted for an improper purpose”, “seriously and unfairly burdensome, prejudicial or damaging” [Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247; [1988] HCA 32] and “productive of serious and unjustified trouble and harassment” [Hamilton v Oades (1989) 166 CLR 486 at 502; [1989] HCA 21]. In Williams v Spautz [(1992) 174 CLR 509 at 521], the plurality distinguished between “abuse of process in the sense of proceedings instituted and maintained for an improper purpose” and “abuse of process [that] precluded a fair trial”. In Rogers v The Queen, McHugh J concluded [(1994) 181 CLR 251 at 286; [1994] HCA 42] that, although the categories of abuse of process are not closed, many such cases can be identified as falling into one of three categories: “(1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute”.

101    More recently, the Full Court in Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34; 274 FCR 577 at [40] (Reeves, Jagot and Mortimer JJ) said the following: