Federal Court of Australia

Dimer on behalf of the Jardu Mar People v State of Western Australia [2022] FCA 64

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s Originating Application is dismissed.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    On 14 January 2021 the applicant (Jardu Mar applicant) filed a native title determination application (Originating Application). Following the lodgement of the Originating Application a delegate (Delegate) of the Native Title Registrar (Registrar) considered an application for registration of the claim made in the Originating Application (Jardu Mar Claim) against each of the conditions contained in s 190B and s 190C of the Native Title Act 1993 (Cth) (Act). That consideration occurred pursuant to the process provided for by s 190A of the Act. Section 190A(6)(b) relevantly provides that the Registrar must accept the claim for registration if:

(b)    the claim satisfies all of the conditions in:

(i)    section 190B (which deals mainly with the merits of the claim); and

(ii)    section 190C (which deals with procedural and other matters).

2    On 3 March 2021, the Delegate determined not to accept the Jardu Mar Claim for registration pursuant to s 190A of the Act on the basis that it did not satisfy s 190B(4)-(8) or s 190C(3)-(4) of the Act (Registration Decision).

3    The relevant provisions of s 190B are in the following terms:

Registration: conditions about merits of the claim

(1)    This section contains the conditions mentioned in subparagraph 190A(6)(b)(i).

…

Identification of claimed native title

(4)    The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.

Factual basis for claimed native title

(5)    The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:

(a)    that the native title claim group have, and the predecessors of those persons had, an association with the area; and

(b)    that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and

(c)    that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.

Prima facie case

(6)    The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.

Note:     If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a "right to negotiate" process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a "right to negotiate" process).

Physical connection

(7)    The Registrar must be satisfied that at least one member of the native title claim group:

(a)    currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or

(b)    previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by:

(i)    the Crown in any capacity; or

(ii)    a statutory authority of the Crown in any capacity; or

(iii)    any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease.

No failure to comply with section 61A

(8)    The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of section 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.

4    The relevant provisions of s 190C are in the following terms:

Registration: conditions about procedural and other matters

(1)    This section contains the conditions mentioned in subparagraph 190A(6)(b)(ii).

…

No previous overlapping claim groups

(3)    The Registrar must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application, if:

(a)    the previous application covered the whole or part of the area covered by the current application; and

(b)    an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made; and

(c)    the entry was made, or not removed, as a result of consideration of the previous application under section 190A.

Identity of claimed native title holders

(4)    The Registrar must be satisfied that either of the following is the case:

(a)    the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; or

Note:    An application can be certified under section 203BE, or may have been certified under the former paragraph 202(4)(d). A representative Aboriginal/Torres Strait Islander body may certify the application, even if it is only the representative body for part of the area claimed.

  (b)    the requirements mentioned in subsection (4AA) are met.

(4AA)  For the purposes of paragraph (4)(b), the requirements are:

(a)      the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group; and

(b)      either:

(i)      there are no conditions under section 251BA on the authority that relate to the making of the application; or

(ii)      any conditions under section 251BA on the authority that relate to the making of the application have been satisfied.

Note: The word authorise is defined in section 251B.

5    On 14 April 2021, the Jardu Mar applicant applied to the National Native Title Tribunal (NNTT) seeking reconsideration of the Registration Decision pursuant to s 190E(1) of the Act.

6    On 30 September 2021 a member of the NNTT, having considered the application for registration against each of the conditions contained in s 190B and s 190C of the Act, determined that the Jardu Mar Claim should not be accepted for registration pursuant to s 190A of the Act on the basis that the claim “does not satisfy all of the conditions in s 190B(4)-(8) and does not satisfy s 190C(3)-(4)” of the Act (Reconsideration Decision).

7    On 14 September 2021, the First Respondent (State) filed submissions in this Court setting out its position in relation to the Jardu Mar Claim and foreshadowed the filing of an interlocutory application seeking that the claim be struck out. At a case management hearing held on 16 September 2021, orders were made requiring the State to file any strike out application it sought to make on or before 15 October 2021 and timetabling orders were made for the exchange of material and other steps to be taken to facilitate the hearing in December 2021 of any strike out application filed. Following the Reconsideration Decision and on 15 October 2021, the State filed the interlocutory application which is the subject of these reasons.

8    The grounds of that interlocutory application are sufficiently summarised in the submissions filed by the State as follows:

(a)    s 84C(1) of the [Act]: the Jardu Mar Claim does not comply with various requirements set out in s 61(1) of the [Act] (which deals with the basic requirements for native title determination applications); and/or s 61A of the [Act] (which provides that certain applications must not be made); alternatively,

(b)    s 31A(2) of the [Federal Court of Australia Act 1976 (Cth)]: the Jardu Mar Claim should be summarily dismissed because there are no reasonable prospects of the Jardu Mar Applicant establishing that the Jardu Mar Claim was properly authorised within the meaning of ss 61(1) and 251B of the NTA; alternatively,

(c)    s 190F(6) of the [Act]: the Jardu Mar Claim was not accepted for registration on initial consideration by the [Registrar] or on subsequent reconsideration by a Member of the [NNTT]; it has not been amended since the reconsideration decision; is not likely to be amended in a way that would lead to a different outcome; and there is no other reason why it should not be dismissed.

9    The State’s interlocutory application was supported by each of the persons (participating persons) who pursuant to the orders made on 16 September 2021 filed a notice of that person’s intent to participate. Each of the participating persons is an applicant in a native title determination application which overlaps the boundaries of the area claimed by the Jardu Mar Claim. The participating persons are the applicant in Maduwongga (WAD 186 of 2017) (Maduwongga applicant), the applicant in Nyalpa Pirniku (WAD 91 of 2019) (Nyalpa Pirniku applicant) and the applicant in Kakarra Part A (WAD 297 of 2020).

10    On 15 December 2021, the day of the hearing of the present interlocutory application, the Jardu Mar applicant filed an interlocutory application together with a supporting affidavit of Linden Brownley (Brownley Affidavit). The orders sought by the Jardu Mar applicant’s interlocutory application were, relevantly:

1.    The Applicant have leave to amend its Jardu Mar native title determination application (WAD 4 of 2021 I WC 2021/001) (Form 1) filed in this Honourable Court the terms set out in the record of a re-authorisation meeting held on 5 December 2021 and prepared by the chair of the meeting Linden Brownley and deposed to in his affidavit made and filed in the Court Registry this day.

2.     That pending the return of the orders sought in section 1 above the Interlocutory Application, filed by the [State] on 18 October 2021, be stayed.

11    Proposed order 2, although not accurately expressed, sought that the State’s interlocutory application be stayed pending the determination of the application for leave referred to in proposed order 1. Only the determination of proposed order 2 was pressed by the Jardu Mar applicant on 15 December 2021.

12    The Court dealt with Jardu Mar’s interlocutory application at the outset of the hearing on 15 December 2021. The application for a stay was opposed by the State and each of the participating persons. Having heard submissions, I rejected the application for a stay and indicated that my reasons would be provided at a later time. Those reasons are given below. It is convenient, however, that I return to addressing the State’s interlocutory application.

13    Each of the grounds relied upon by the State – the s 84C(1) strike out ground, the s 31A(2) summary dismissal ground and the s 190F(6) dismissal ground – is put in support of an order striking out or dismissing the Originating Application. Evidence in support of those grounds was filed and relied upon by the State, the Maduwongga applicant and the Nyalpa Pirniku applicant. The Jardu Mar applicant did not file any evidence in opposition to the State’s interlocutory application. It proffered no evidence or written submissions at all, and disavowed reliance upon the Brownley Affidavit. Having lost its application for a stay, the Jardu Mar applicant conceded that it had “no grounds of meaningful opposition to the State’s submissions” and did not oppose the making of the orders sought by the State that the Originating Application be struck out or dismissed.

14    In the circumstances, it is sufficient that I only address what the State described as its clearest ground. Given that I am satisfied that the Originating Application should be dismissed pursuant to s 190F(6) of the Act, I need not and do not address either the s 84C(1) strike out ground or the s 31A(2) summary dismissal ground raised by the State’s interlocutory application.

15    The Court’s power under s 190F(6) of the Act to dismiss a claimant application such as the Originating Application is only enlivened if the preconditions provided for by s 190F(5) are satisfied.

16    Section 190F(5) of the Act provides:

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

(5)    Subsection (6) applies in a case where:

(a)    the Registrar does not accept the claim for registration either because, in the opinion of the Registrar or, if the claim is reconsidered under section 190E, of the member of the NNTT reconsidering the claim:

(i)    it does not satisfy all of the conditions in section 190B; or

(ii)    it is not possible to determine whether all of the conditions in section 190B have been satisfied because of a failure to satisfy section 190C; and

(b)    the Court is satisfied that the avenues for:

(i)    the reconsideration under section 190E of the Registrar’s decision; and

(ii)    the review under this section of the Registrar’s decision; and

(iii)    the review of orders made in the determination of an application under this section; and

(iv)    the review of the Registrar’s decision under any other law;

have all been exhausted without the registration of the claim.

17    I am satisfied that the avenues specified by s 190F(5)(a) have been exhausted without the registration of the Jardu Mar Claim. As earlier recorded, the Delegate and, on a reconsideration, the member of the NNTT have each not accepted the claim for registration on the basis specified by s 190F(5)(a)(i). As for the avenue for reconsideration or review specified by s 190F(5)(b), I am satisfied for the reasons already recorded that the reconsideration by the NNTT referred to in s 190F(5)(b)(i) has been exhausted. I am also satisfied that, given that the time specified by r 34.109 of the Federal Court Rules 2011 (Cth) for any application for review has expired, the avenue addressed by s 190F(5)(b)(ii) of a review by this Court has been exhausted. I do not understand the avenues specified by either s 190F(5)(b)(iii) or (iv) to be relevant. However, if relevant, I am satisfied by the concession made by the Jardu Mar applicant and its non-opposition to an order dismissing its Originating Application that these avenues (if available) have been exhausted without the registration of the Jardu Mar Claim.

18    Section 190F(6) of the Act provides that the Court, on application of a party or by its own motion, may dismiss the application in issue if:

(a)    the Court is satisfied that the application in issue has not been amended since its consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar (s 190F(6)(a)); and

(b)    in the opinion of the Court, there is no other reason why the application should not be dismissed (s 190F(6)(b)).

19    As to para (a) of s 190F(6), it is not in contest and I am satisfied that the Originating Application has not been amended since having been considered by the Registrar.

20    It is necessary then to turn to whether the Originating Application is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar. The word “likely” has been construed to mean a real chance rather than a mere possibility: Christine George on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518 at [51] (Logan J); Fazeldean on behalf of the Thalanyji People (No 2) v State of Western Australia [2012] FCA 1163 at [62] (Barker J) and Champion v State of Western Australia (No 2) [2011] FCA 345 at [12] (McKerracher J). In Pappin on behalf of the Muthi Muthi People v Attorney-General of New South Wales (No 3) [2018] FCA 1036 at [21] and [31], in considering likelihood, Griffiths J accepted that the following matters were relevant on the facts of those proceedings:

(a)     the reasons given for refusal of registration;

(b)    the extent to which amendments addressing the reasons for refusal might be possible and within the control of the applicant or conversely require the participation of others;

(c)    in a case requiring participation or action of any other person, the probability of that participation being forthcoming or the action being taken;

(d)    the authority, capacity and inclination of the applicant (and of any other required participant) to take the steps necessary to make amendments capable of addressing the reasons for refusal;

(e)    the resources and assistance available to the applicant (and of any other required participant) to take the steps necessary to make amendments capable of addressing the reasons for refusal; and

(f)    the opportunities already afforded to the applicant to initiate and/or take steps to make amendments addressing the reasons for refusal and any facts or circumstances explaining why initiatives or steps have not been taken or have not succeeded.

21    Furthermore, the applicant for the application in issue, the Jardu Mar applicant, carries the onus of proof and persuasion. As Barker J stated in Sambo v State of Western Australia [2015] FCA 954 at [32]-[35]:

When any such application or motion is made for dismissal, the question is whether the claimant application should be dismissed. At that point the terms of s 190F(6)(a) and (b) come into play. It is then for an applicant, if it wishes to resist the dismissal, to put evidence before the Court that will lead to the Court not being satisfied that the application has not been amended since consideration by the Registrar and is not likely to be amended in a way that would lead to a different outcome once reconsidered by the Registrar; and in relation to the question whether there is no other reason why the claimant application should not be dismissed.

In that regard, there is a practical onus on an applicant to cause evidence to be supplied to the Court that may lead to the Court not being satisfied about those matters and not forming that relevant opinion: see Fazeldean on behalf of the Thalanyji People (No 2) v State of Western Australia [2012] FCA 1163 at [66].

In effect the proceeding now before the Court is in the nature of a show cause proceeding. The applicant has the opportunity to produce materials to show the Court that, notwithstanding the satisfaction of the preconditions to the exercise of the dismissal power, the application is likely to be amended in some way that would lead to a different outcome and/or there is another reason why the application should not be dismissed.

A practical burden falls on the applicant in this case therefore to deal with the different bases upon which the amended application failed the registration test and to show how a further amendment may be possible which would lead to a different outcome on a reconsideration; or that there is some other reason why the application should not be dismissed.

22    The Jardu Mar applicant has not tendered evidence nor made any submission in furtherance of its onus of persuading the Court that the Originating Application is unlikely to be amended in a way that would lead to a different outcome once considered by the Registrar. In addition to the Jardu Mar applicant’s failure to discharge its onus, I have reached the state of satisfaction required by s 190F(6)(a) by reference to the following matters.

23    The phrase “different outcome” in s 190F(6)(a) is a reference to the registration of the application in issue as an outcome different to its prior rejection. Such an outcome may be supposed to be likely if the obstacles to registration as found by the Registrar, or upon reconsideration by the NNTT, are likely to be overcome should an application for registration be reconsidered in the future.

24    Here, the obstacles to registration found by the Delegate and the NNTT were numerous and many, if not most of them, are not capable of being rectified or cured by an amendment to the Originating Application or, at the least, an amendment of a kind that I can be satisfied the Jardu Mar applicant is likely to pursue.

25    For example, one of the significant obstacles faced by the Jardu Mar applicant is its failure to demonstrate before both the Registrar and the NNTT a factual basis in support of the assertions referred to in s 190B(5). That subsection provides:

(5)    The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:

(a)     that the native title claim group have, and the predecessors of those persons had, an association with the area; and

(b)    that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and

(c)    that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.

26    As each of the Delegate and the NNTT was not satisfied that the factual basis required by s 190B(5) was demonstrated, each was also not satisfied that, pursuant to s 190B(6), prima facie, at least some of the native title rights and interests claimed in the application can be established.

27    It is not apparent to me how the failure of the Jardu Mar applicant to factually substantiate the assertions required to be substantiated by s 190B(5), and therefore s 190B(6), could be overcome by an amendment to the Originating Application. No amendment has been foreshadowed or suggested by the Jardu Mar applicant as being capable of addressing those obstacles. Presumably, obstacles of that kind could be overcome by evidentiary material providing the requisite factual basis called for by s 190B(5). If there was evidence before me supporting a likelihood of factual material being available, it may have supported a finding that there is another reason of the kind contemplated by s 190F(6)(b) for not dismissing the application. However, there is no such evidence and the limited evidence before me suggests that, if given an opportunity, the Jardu Mar applicant is unlikely to cure the factual shortcomings in question. Such an opportunity was available to the Jardu Mar applicant on the reconsideration by the NNTT. However, it is clear that the NNTT, like the Delegate, was not satisfied that the factual basis required to be demonstrated by s 190B(5) had been demonstrated despite the second opportunity given to the Jardu Mar applicant to provide the required factual substantiation for the key components of the Jardu Mar Claim.

28    Another available example of where an amendment to the Originating Application could not cure an obstacle to registration relied upon by the Registrar and the NNTT is the non-satisfaction by those decision-makers under s 190C(4)(b) that the Jardu Mar applicant is properly authorised in accordance with the requirements of s 251B of the Act.

29    Other obstacles or shortcomings to registration identified by the Delegate and the NNTT are clearly capable of being addressed by an amendment of the Originating Application. For instance, the finding made under s 190B(8) of non-compliance with the requirements of s 61A of the Act could be addressed by amending the area claimed by the Originating Application to exclude an overlap with an existing native title determination (Ngadju Part B) together with certain amendments to Schedule B of the Originating Application. Non-compliance with s 190C(3) was also found. Neither the Delegate nor the NNTT was satisfied that no person included in the Jardu Mar Claim group was not also a member of a native title claim group for any previous application. Again, that matter is capable of being addressed by an amendment to the claim group description contained in the Originating Application.

30    However, I am not able to be satisfied that those obstacles are likely to be overcome. There is no evidence relied upon by the Jardu Mar applicant in opposition to the State’s interlocutory application which supports any such prospect. There is some evidence in the Brownley Affidavit which could have assisted the Jardu Mar applicant in this respect. However, as earlier recorded, the Jardu Mar applicant disavowed any reliance on that affidavit in relation to the State’s interlocutory application.

31    Mr Brownley deposed that a meeting of the Jardu Mar Claim group occurred on 5 December 2021 and that resolutions were passed to authorise the Jardu Mar applicant to seek leave to amend the Originating Application (referred to as the Form 1). The minutes of the meeting which Mr Brownley purports to exhibit to his affidavit refer to various resolutions passed at that meeting. An inference is open to be drawn from those minutes that the Jardu Mar applicant intends to overcome the difficulty under s 190C(3) caused by the overlaps with the Ngadju Part B determination. The prospect that other amendments may be pursued is supported by a resolution authorising the Jardu Mar applicant “to make such further amendments to the Form 1 as are necessary to resist the Strike out application and are desirable to obtain registration”. It does not, however, appear that the s 190C(3) obstacle to registration based on overlaps with other claim groups and caused by the Jardu Mar Claim group description including the descendants of the apical ancestors Kadee, Lady Jayne and Kitty Bluegum, is intended to be addressed by any amendments to the claim group description in the Originating Application. The minutes include a motion which purports to authorise the claim group description to be based primarily upon descent from the same three apical ancestors.

32    Even if, despite the Jardu Mar applicant not relying upon it, I took into account that evidence and applied it favourably to support the position of the Jardu Mar applicant, at best, the evidence would only lead to the conclusion that there is one obstacle to registration (the s 190B(8) obstacle) which is likely to be overcome by an amendment to the Originating Application. It would not undermine my conclusion that there are other numerous and substantive obstacles to registration which are not likely to be overcome by any amendment to the Originating Application.

33    For those reasons and in relation to the criteria specified by s 190F(6)(a) of the Act, I am satisfied that the Originating Application has not been amended since consideration by the Registrar and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar.

34    I turn then more directly to s 190F(6)(b) to explain why I am of the opinion that there is no other reason why the Originating Application should not be dismissed.

35    Although I need not rely on questions of onus, it seems to me that the practical onus of demonstrating that there is a reason why the application ought not to be dismissed rests with the Jardu Mar applicant.

36    I accept the State’s submission that the phrase “other reason” in this context refers to something other than the potential for an amendment to the Originating Application which may lead to an alternate outcome upon reconsideration by the Registrar: George at [42] (Logan J). I also consider that an “other reason” need not be concerned with overcoming an obstacle to registration. The Explanatory Memorandum to the Native Title Act Amendment Bill 2006 (Cth) stated that the criterion set out in s 190F(6)(b) “will ensure that applications are not dismissed where there is good reason for a claim remaining in the system, despite being unregistered”. An example of such a reason provided by the Explanatory Memorandum is that the claim, despite being unregistered, is close to reaching resolution. Furthermore, whether or not there is no other reason will depend upon an evaluation of all of the circumstances, including those which do not support dismissal.

37    No “other reason” was proffered or relied upon by the Jardu Mar applicant and, taking into account all of the circumstances, none is apparent to me.

38    There was, as already mentioned, no evidence of any intent or capacity to cure the factual deficiencies which arise pursuant to s 190B(5) or (6). There was in Mr Brownley’s affidavit evidence of an attempt made to cure the defect in authorisation relied upon by both the Delegate and the NNTT. The State contended that the attempt made to cure that defect was itself flawed. However, even if I were to accept that the Jardu Mar applicant has been validly authorised to make and pursue the Originating Application or that it is likely that such authorisation can be validly given in the foreseeable future, in the context of the numerous other obstacles to registration faced by the Jardu Mar applicant and my not being satisfied that they are likely to be overcome, valid authorisation of the Jardu Mar applicant would not of itself provide a reason for not dismissing the Originating Application.

39    In coming to the view that there is no reason why the Jardu Mar Claim should not be dismissed, I accept and have taken into account the State’s submission that the continued presence of that application has the potential to cause significant prejudice and delay to the orderly progression of at least two of the seven registered native title determination applications overlapped by the Jardu Mar Claim, being Nyalpa Pirniku (WAD 91 of 2019) and Darlot (WAD 142 of 2018).

40    The Jardu Mar applicant has not raised any discretionary considerations as to why the Originating Application ought not to be dismissed and none are apparent.

41    For those reasons, I will make an order dismissing the Originating Application.

42    I return then to my reasons for rejecting the stay of the State’s interlocutory application which was sought by the Jardu Mar applicant pending the determination of its application for leave to amend the Originating Application. I was not persuaded that there was any utility in granting the stay sought for the purpose for which it was sought. It was necessary, in my view, for the Jardu Mar applicant to persuade me that it was at least arguable that the opportunity to amend the Originating Application in the manner indicated by the Brownley affidavit to which I have already referred would be of substantial utility to it in resisting each of the grounds for strike out or dismissal relied upon by the State. The Jardu Mar applicant failed to do that. As my reasons explain, the foreshadowed amendments to the Originating Application would not have been sufficient to avoid dismissal under s 190F(6) of the Act and, in my view, the limited steps foreshadowed would also not have been arguably sufficient to avoid that result. Furthermore, I took into account the Jardu Mar applicant’s delay in seeking a stay, the absence of any reasonable explanation for that delay, together with the prejudice likely to be inflicted upon the State and the participating persons by the vacation of the hearing.

Associate:

Dated:    4 February 2022