Federal Court of Australia

Tucker v State of Western Australia [2022] FCA 1379

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth), there be summary judgment in the proceeding in favour of the respondent.

2.    No order as to costs.

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

REASONS FOR JUDGMENT

MORTIMER J

1    Mr Archie Tucker is a proud Banjima man. He is a senior person, knowledgeable in Banjima traditional law, custom and culture. In the Court’s reasons for judgment for making a determination of native title in favour of the Banjima People, Barker J described him as one of the claimants who gave “primary evidence” : see Banjima People v State of Western Australia (No 2) [2013] FCA 868; 305 ALR 1 at [6].

2    Barker J accepted and relied upon Mr Tucker’s knowledge of his country at a large number of points in his Honour’s fact finding. For example at [287]:

White Springs and the Chichester Ranges (Birdilya) were also shown by a range of evidence of Aboriginal witnesses to be boundary markers. Archie Tucker named a series of outcamps, creeks and gorges along the Ranges boundary markers, explaining that where the water flowed south of the Chichester Ranges into the Fortescue it was Banjima country. On the other side of the Ranges following markers like Yirdimanara the water flowed north. He said that Banjima country goes north up to Chichester. Birdilya (Birdirla) is the name used for the Chichester Range or tablelands.

3    And at [445]:

Archie Tucker explained how he went through the Banjima Walajingka law at Nanutarra in the 1970s with others such as Charlie Coffin and Eric Parker. It was old Wobby Parker (deceased), Archie Tucker’s gundu, who put him through.

4    Mr Tucker was one of the witnesses whom Barker J described as giving “extensive evidence about hunting, fishing, gathering, bush medicines and camping” to establish “economic and day-to-day connection to country” for the Banjima People: see at [475].

5    Although in this proceeding the Court must make orders that will preclude Mr Tucker’s compensation application in this Court from continuing, it is important to emphasise that the Court’s decision in no way reflects on Mr Tucker personally. The Court acknowledges his dedication to trying to make things better for his community, and his extended family within his community, and to do so in a way which can assist his community and his extended family to continue to live on Banjima country, to thrive and keep their law and culture strong.

6    The compensation application which is the subject of the Court’s orders today is part of Mr Tucker’s attempt to achieve these objectives. However, it has some fatal legal flaws, which means the application must be dismissed.

7    Mr Tucker has applied under s 61 of the Native Title Act 1993 (Cth) for a determination of compensation in relation to native title rights and interests he contends have been extinguished or affected by acts by third parties for which compensation is payable under the NTA. Broadly, the area of land and waters covered by Mr Tucker’s compensation application is expressed as the area covered by the native title determination in Banjima People v State of Western Australia (No 3) [2014] FCA 201, as varied by orders made after a Full Court decision in Banjima People v State of Western Australia [2015] FCAFC 84; 231 FCR 456. This determination was made after Barker J’s reasons to which I referred in [1] above, and an appeal from that decision. Banjima Native Title Aboriginal Corporation was determined as the prescribed body corporate to hold the native title on trust for the Banjima People.

8    In his originating application Mr Tucker has not identified the compensable acts for which he contends compensation is payable. That is but one of several problems with his originating process that has led to the present interlocutory application by the State of Western Australia.

A brief description of the claim made by Mr Tucker

9    This summary is taken from the Form 4 originating application under s 61 of the NTA filed by Mr Tucker, as well as what he said at a case management hearing before Bromberg J on 6 September 2021, which I shall refer to as the September CMH. At the September CMH, Mr Tucker appeared without legal representation, but with the assistance of his son Mr Lloyd Tucker (Mr Tucker (Jnr)) and Mr Alex Bashtannyk, who assisted Mr Tucker, with no objection from the State to him doing so. The same position applied in the hearing before me. It was appropriate for the State to take that position.

10    Mr Tucker prepared and filed the Form 4 application without obtaining legal advice. In the section of the Form 4 application that sets out the basic details of the claim, Mr Tucker has stated that he is authorised to make the compensation application in his capacity as “Wirrilimarra Banyima Custodians Aboriginal Corporation”, and that the claim group for the compensation is also Wirrilimarra Banyima Custodians Aboriginal Corporation. At the September CMH, it became clear Mr Tucker was or is the chair of Wirrilimarra Corporation.

11    The Court was told that Wirrilimarra Corporation, and BNTAC, had entered into agreements with mineral prospecting and extracting ventures, which entitled it to royalties and other payments in respect of resources extracted from Hope Downs, a large open pit mining complex in the Pilbara. It became apparent that a principal purpose of Mr Tucker’s claim in this Court was to seek compensation for alleged breaches of those royalty agreements.

12    The State submitted that the native title over the area the subject of the compensation application is held by BNTAC on behalf of the Banjima People, not the Wirrilimarra Corporation. On the State’s submission, this presents a fundamental defect in any purported authorisation of the Wirrilimarra Corporation or Mr Tucker to make the compensation application.

The progress of this proceeding

13    Apprehending that Mr Tucker might be assisted by legal advice about whether a Form 4 compensation application is the correct vehicle to ventilate his claims and, if so, how the application should be authorised, Bromberg J referred Mr Tucker for legal assistance pursuant to r 4.12 of the Federal Court Rules 2011 (Cth). Less than two weeks later, Margie Tannock, a Western Australian legal practitioner with considerable experience in native title, filed a notice of acting for Mr Tucker in this proceeding.

14    In March 2022, the parties appeared at a case management hearing before a Registrar of the Court. I infer that, by this time, Mr Tucker had received legal advice from Ms Tannock. This hearing did not result in Mr Tucker amending, or withdrawing or discontinuing, his compensation application. The following month, the State filed an interlocutory application for an order that Mr Tucker’s application be removed from the Court file pursuant to r 2.28(1)(c)(ii) of the Rules and the proceeding be dismissed or, in the alternative, summarily dismissed or struck out in its entirety. The proceeding was originally listed for a case management hearing before Bromberg J on 1 June 2022, but the Court vacated that hearing because of sorry business in Mr Tucker’s family. Subsequently, the proceeding was transferred to my docket and the State’s interlocutory application was listed for an in-person hearing in Perth on 24 August 2022.

15    Before the interlocutory hearing, Ms Tannock notified the Court that she no longer acts for Mr Tucker. Nevertheless, Ms Tannock was granted leave to appear at the hearing in August as amicus curiae. She informed the Court that she had advised Mr Tucker about alternative vehicles for a claim based on the allegations about Hope Downs, and that she had explained the State’s position on the interlocutory application. The Court expresses its gratitude to Ms Tannock for accepting the referral and providing professional services pursuant to it.

16    The Court also granted leave to Phillip Hunter, a solicitor acting for BNTAC, to appear as amicus curiae to assist the Court to understand the position of BNTAC. At the hearing, Mr Hunter explained the status of the agreements entered into by the Wirrilimarra Corporation and subsequent agreements between BNTAC and the entities that own or operate Hope Downs.

The State’s arguments in summary

17    At [5] of its written submissions, the State conveniently summarises the basis of its interlocutory application:

In summary, the State submits that the Compensation Application:

(a)    does not meet the basic requirements for a compensation application because the application:

(i)    is either not in the prescribed form, or does not contain prescribed information, namely:

(A)    the application is not made by either:

(1)    a registered native title body corporate (RNTBC) as mentioned in item (1) or (1A) of the table in s 61(1) of the NTA in relation to compensation applications; or

(2)    a person authorised by a compensation claim group as mentioned in item (2) of the table in s 61(1) of the NTA in relation to compensation applications;

(B)    does not specify (or provide details in relation to) the act or acts which it is claimed extinguished or affected native title rights and interests for which compensation is claimed including:

(1)    the government or other person that did the act and whether the act has been validated; and

(2)    if the act has been validated, how this was done; and

(C)    details of the basis for the compensation application, such as the provision of the Act that deals with the compensation entitlement;

(D)    information identifying the boundaries of the area covered by the application and any areas within those boundaries that are not covered by the application;

(ii)    was not accompanied by a prescribed document, namely an affidavit sworn by the Applicant stating the matters required by either ss 62(4)(a)-(f) (for applications made on behalf of a compensation claim group) or ss 62(6)(a)-(c) (for applications made on behalf of a registered native title body corporate);

(b)    appears to be a claim for damages arising out of an alleged breach of contract and not a claim for compensation arising from an entitlement under the provisions of the NTA;

(c)    in the circumstances should not have been accepted by the Registrar for filing; and

(d)    having been accepted for filing:

(i)    the Compensation Application should be removed from the Court file and the proceeding should be dismissed; or

(ii)    the proceeding should be struck out.

(Original emphasis, footnotes omitted.)

18    Thus, the State’s interlocutory application centres on four key defects in Mr Tucker’s compensation application:

(a)    it is not authorised pursuant to s 61 of the NTA;

(b)    it does not identify what act or acts have extinguished or impaired native title;

(c)    it does not specify why the extinguishment or impairment gives rise to a right to compensation under the NTA; and

(d)    it does not clearly identify the area it covers.

19    The State submitted there are two main reasons why Mr Tucker could not correct these defects, even if he were given the opportunity to do so. First, Mr Tucker is unable to authorise the compensation application by himself. In order to satisfy the requirements of s 61, a new application would have to be made, properly authorised by the Banjima People as the native title holders for the area covered by the compensation claim. Second, following the reasoning of Rangiah J in Saunders on behalf of the Bigambul People v State of Queensland (No 2) [2021] FCA 190 and Wharton on behalf of the Kooma People v State of Queensland (No 2) [2021] FCA 191, Mr Tucker’s failure to identify any compensable acts cannot be corrected by amendment.

20    In Bigambul, a native title compensation application was expressed to cover the entirety of the areas determined to be subject to non-exclusive native title recognised in two specific determinations made by the Federal Court in favour of the Bigambul People. The compensation application did not identify which acts were claimed to have extinguished or impaired the Bigambul People’s native title. Instead, the applicant stated that it was intended to identify the compensable acts after expert and lay evidence had been provided. The State of Queensland made an interlocutory application to strike out or summarily dismiss the compensation application, on the basis that it did not contain the information prescribed by the NTA, including the identity of the area covered by the compensation application and the identity of acts giving rise to a right to compensation under the Act.

21    Before Rangiah J, the compensation applicant sought leave to amend the compensation application to identify particular compensable acts. Rangiah J refused this application, on the basis that the area covered by an application for compensation for the extinguishment of native title is the area or areas in which the application alleges that native title rights and interests are or have been affected by a compensable act. It followed, Rangiah J reasoned, that because the compensation application did not identify any compensable acts, it did not cover any area of land or water. Accordingly, to allow the compensation applicant to amend the original application to include compensable acts alleged to affect native title rights and interests in particular areas would necessarily expand the area covered by the application. Because s 64(1) of the NTA prohibits an amendment to an application that would result in the inclusion of any area not covered by the original application, the Court could not grant the compensation applicant’s request for leave to amend. For similar reasons, Rangiah J reached a similar conclusion on the application for leave to amend in Kooma.

22    Each of Bigambul and Kooma was the subject of appeal, but, in April 2022, the appeal from Bigambul was discontinued and the appeal in Kooma was dismissed for want of prosecution by operation of a self-executing order.

23    The first kind of relief sought by the State on its present interlocutory application is an order pursuant r 2.28(1)(c)(ii) of the Rules. That paragraph provides that a document that has been accepted for filing will be removed from a Court file if the Court is satisfied that the document should not, under r 2.27, have been accepted for filing. Rule 2.27 provides that a document will not be accepted for filing if, inter alia, it is not substantially complete or it does not substantially comply with the Rules. The State points to the four defects referred to at [18] above, and other defects, in support of a submission that Mr Tucker’s application is not substantially complete or does not comply with the Rules. Therefore, on the State’s submission, it should be removed from the Court file.

24    In oral argument, senior counsel for the State submitted that context might suggest r 2.27 does not apply to a document that would, if accepted, become an originating application. Senior counsel noted that the terms of r 2.26, which empowers a Registrar of the Court to refuse to accept documents that would be frivolous, vexatious or an abuse of process, explicitly apply to a document that would, if accepted, become an originating application. The terms of r 2.27 make no explicit reference to documents that would, if accepted, become the originating process of a proceeding. Nevertheless, the State maintained its position that Mr Tucker’s compensation application should not have been accepted for filing under r 2.27 of the Rules.

25    In conjunction with an order pursuant to r 2.28(1)(c)(ii) of the Rules, the State seeks an order pursuant to r 26.01 of the Rules and/or s 31A(2) of the FCA Act that the proceeding be dismissed.

26    Alternatively, the State seeks an order that the proceeding be struck out pursuant to s 84C of the NTA, or dismissed pursuant to r 26.01 of the Rules and/or s 31A(2) of the FCA Act.

27    In response to the State’s submissions, Mr Bashtannyk and Mr Tucker (Jnr) were permitted to address the Court. They both emphasised Mr Tucker’s dedication to trying to assist his community, and the injustice as they saw it of the non-payment of royalty entitlements. Mr Tucker also then addressed the Court.

28    It is understandable that none of the matters addressed by the three men in support of Mr Tucker’s compensation application really engaged with the legal issues raised by the State. Mr Bashtannyk said:

MR BASHTANNYK: We start with BNTAC. The two agreements between the internal settlement deed and the comprehensive agreement traded native title. They traded Karijini and Mount Florence to the mining companies, and that’s documented in 2014, 2015. That’s one of the reasons that Archie Tucker felt so strongly about this and was the – that began as the substance of this claim, and he can explain that himself in person, how he feels and the Banjima People feel about this.

HER HONOUR: About what you’ve called the trading of Karijini.

MR BASHTANNYK: Yes.

29    Mr Tucker said:

MR A. TUCKER: Yes. Well, that’s where it comes in. I’ve been writing letters to BNTAC to help me, see, and that’s why I went round – went round them, behind them, trying to find a way around to come here because they won’t help me.

30    He described Willimirra, and his family’s circumstances, to the Court:

MR A. TUCKER: - - - see, and here we are now. Mines run around us, you know. We asked ..... to help.

HER HONOUR: How many families in that community?

MR A. TUCKER: Well, there’s 13 of us, family, you know, very small family, but we’re from here. We’re from Wittenoom. We got kicked out of Wittenoom.

HER HONOUR: So you’ve been there a long time now.

[Mr Tucker (Jnr)]: Yes, long time, and they want to kick ..... now, BNTAC want to come and take over my community. What for? You got no help me because apparently it’s under the native title. They want us to get in the native title. I say, “I don’t want that. I want to go on my own. Just help me. You guys doing right in that.”

HER HONOUR: All right. So your community wants to run things for itself.

MR A. TUCKER: Yes.

HER HONOUR: Is that part of the – okay.

MR A. TUCKER: Yes, and we tried that for years, since it started, you know. We are bushmen. We worked out in the scrub. You know, we do our own thing, but they don’t want to help, and here they are, all living in mansions .....

[Mr Tucker (Jnr)]: I will just – may give you an example. Apparently there’s no potable water. So what Dad has to do, travel one hundred and sixty, seventy ks to Tom Price, cart bottles of water back home to drink, something as simple as that.

MR A. TUCKER: You know ..... that, you know. When I go to my own corporation, no help. So I can’t hear that now. I got pushed out of here. Can someone listen, only hear us, help us? Look at all the billions of dollars they’re using.

HER HONOUR: But you want – so a part of your complaint is that you don’t know where all this money is going, but it’s not going to help your community.

MR A. TUCKER: Yes.

31    I accept that Mr Tucker’s concerns about the conditions in which his community and extended family live in Wirrilimarra, and the difference that compensation could make, are heart felt and genuine concerns.

Resolution

32    In my opinion the preferable course in a circumstance such as this is to decide the interlocutory application on the basis of the summary dismissal component of the State’s application. While such a decision is interlocutory, it has a stronger content of finality than the other powers identified. It requires the Court to consider, at a substantive level, whether the compensation application has any reasonable prospects of success. The Court’s conclusion will bind the parties, subject to any successful application for leave to appeal and then any successful appeal.

33    For a person in the position of Mr Tucker, an older man who is self-represented (even though he has had the benefit of legal advice), this would be a basis for the Court’s reasoning in making orders adverse to him which is likely to be more readily comprehended by him, and by others who might be in a similar situation and contemplating similar proceedings.

34    That is an important consideration in deciding what course is in the best interests of the administration of justice. In any of the Court’s jurisdictions, where a procedural decision brings a proceeding to an early end, litigants who are unsuccessful may believe they have been short-changed, or deprived of their access to justice. That belief may be especially strong in self-represented litigants. While I am not suggesting there would necessarily be any objective basis for such a belief, if there is a basis for dismissal which requires the Court to consider the substance of the claims made in an originating process, in my opinion the better course is for that to occur. It is more likely to avoid appeals and reviews, or to make any appeals and reviews more straightforward. A reasonable observer of the Court’s systems is more likely to apprehend that this represents the proper administration of justice, and that is also a consideration.

35    I accept that in a relatively new jurisdiction such as compensation applications, an institutional respondent such as the State might be keen to search for the most cost effective method of responding to applications which appear to be without reasonable prospects of success. Nevertheless, I do not consider a response centred on whether an originating process should be, or should have been, accepted for filing is an appropriate response in these kinds of circumstances. While removal of documents from the Court file, or a refusal to accept originating processes for filing, might appear an attractive initial solution, the burden it casts on the Court’s Registry staff is considerable. The compensation provisions of the NTA are complex, as the State’s submissions demonstrated. The level of substantial compliance required for an application to be accepted for filing might be a matter on which reasonable minds differ. Certainly, in a relatively new area such as compensation, and in an area where there may be self-represented applicants, a technical approach is undesirable. How much detail should be required before a s 61 compensation application is accepted for filing involves matters of judgment which in my respectful opinion it is not fair to leave to Registry staff.

36    In other practice areas in this Court, originating applications are accepted where they have the barest of information in them, especially when they are filed by self-represented litigants. They are frequently incomplete and often almost wholly non-compliant with the Court’s rules and the prescribed forms. Nevertheless, it is usually clear what a person is seeking, in general terms. The Court then deals with the defects in such documents in open court, with the parties present, and perhaps after endeavouring to secure some pro bono legal advice for an applicant. In my opinion, that is a more just and appropriate way to proceed. The approach for which the State contends would place an extra burden on Registry staff, and ultimately likely on a Registrar. A decision of a Registrar of the Court to refuse to accept documents for filing is in any event subject to review: Nyoni v Murphy [2018] FCAFC 75; 261 FCR 164. There is less finality attaching to those decisions. Further, whether or not there is an objective basis for such a view, a person in the position of Mr Tucker might apprehend that his access to the Court is being unfairly fettered.

37    Therefore, in a case such as the present, I do not consider it is in the interests of the administration of justice to grant relief based on the proposition that Mr Tucker’s compensation application should not have been accepted for filing.

38    Further, I do not accept that it is appropriate to characterise Mr Tucker’s application as frivolous or vexatious, or an abuse of the process of the Court. Those words are capable of carrying pejorative meanings and it is neither necessary nor appropriate to apply them to Mr Tucker’s compensation application. I do not consider orders should be made based on r 26.01(1)(b) and (d). The basis in r 26.01(1)(c) – that “no reasonable cause of action is disclosed” – is sufficiently addressed by reliance on s 31A(2).

39    In circumstances such as the present, the appropriate way to deal with a compensation application said to have fatal flaws or defects is to focus on the Court’s summary dismissal powers. In my opinion, consideration of those powers is a preferable approach to the powers in s 84C of the NTA, which are, as the State recognised, more concerned with form rather than the merits of the application: see Bodney v Bropho [2004] FCAFC 226; 140 FCR 77 at [33] (Branson J). Branson J’s characterisation has been endorsed in Walker on behalf of the Noonukul of Minjerrabah v State of Queensland [2007] FCA 967 at [16] and Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 at [43].

40     I turn to the application of s 31A.

No reasonable prospects of success: s 31A

41    The Court’s general summary dismissal powers are conferred by s 31A of the FCA Act and r 26.01 of the Rules. By reference to previous authorities, I explained the nature of those powers recently in Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198 at [46]-[48], DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia [2020] FCA 958 at [46]-[52] and Melville on behalf on behalf of the Pitta Pitta People v State of Queensland [2022] FCA 387 at [16]-[20]. The reasons of McKerracher J in Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [27]-[42] also provide a useful summary of the applicable tests and principles. The threshold set by s 31A (here, s 31A(2)) is whether the Court is satisfied the moving party has “no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding”. Here, Mr Tucker is the moving party.

42    A party may have no reasonable prospects of success if there is a defect in their pleadings that cannot be cured: Ship “Sam Hawk” v Reiter Petroleum Inc [2016] FCAFC 26; 246 FCR 337 at [269] (Kenny and Besanko JJ); or if the proceeding turns on a question of law that is straightforward and confined, or well-settled by binding authority: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256 at [48].

43    There is clear force in the position put forward by the State regarding the absence of lawful authorisation for the compensation application. The non-compliance of Mr Tucker’s compensation application with the terms of s 61(1) is both a defect that cannot, on the evidence, be cured, and a straightforward situation where the application is clearly unable to meet the terms of s 61(1).

44    Section 61(1) prescribes, through the use of a table, the kind of applications which may be made to this Court and who is entitled to make them. It is to be understood as prescriptive, at least to the extent that if it is clear that an application is not one of the kinds set out in s 61(1), or is not made by persons who are entitled by the terms of s 61(1) to make such an application, this may in a given circumstance provide a basis for a summary dismissal application. Of course circumstances will vary widely. There may be a real contest as to whether a person or persons are authorised to make a compensation application; that is what occurred in Melville, where the Court rejected a summary dismissal application by the State of Queensland and the registered native title body corporate (RNTBC) for the area which is the subject of a compensation application. Alternatively, proper authorisation might be achievable if a person or persons are given a further opportunity to seek such authorisation. Each case must be considered on its facts.

45    Relevantly to Mr Tucker’s circumstances, the table in s 61(1) of the NTA provides that if a compensation application is not made by a RNTBC, it must be made by:

(2)    A person or persons authorised by all the persons (the compensation claim group) who claim to be entitled to the compensation, provided the person or persons are also included in the compensation claim group.

(Original emphasis.)

Application of the s 61(1) requirements to Mr Tucker’s application

46    On its face, this application is not brought by the Banjima RNTBC. Indeed it is with BNTAC that Mr Tucker has been in something of a long running dispute. The first basis is not applicable.

47    There is no evidence Mr Tucker is authorised by the Banjima common law holders to bring this application. To the contrary, the Banjima RNTBC has informed the Court and Mr Tucker that he is not authorised by the common law holders. Mr Tucker himself has never sought to suggest he had the permission of even a majority of Banjima common law holders to bring this application. He has always said he brings it on his own behalf, and on behalf of his family and community in Wirrilimarra.

48    Authorisation is critical because the native title recognised by Australia law is communal native title. There is a group, whose composition has been determined by the Court (sometimes after a contested hearing), which has been recognised in a determination of native title as the native title holding group. In Melville at [119], the Court noted the importance of determining the question of the authorisation or standing of a native title applicant early in a proceeding, so as to avoid any waste of public funds and resources if an applicant is found not to be duly authorised. In that case, the members of the compensation applicant adduced evidence that, in their submission, demonstrated that they were recognised elders who were authorised to make the application under a traditional decision-making process. Those circumstances, which were important in the Court’s decision to refuse an application for strike out or summary dismissal, do not exist in the present case. Further, the Court has a positive position put forward on behalf of the RNTBC that common law holders (for whom it is trustee) have not authorised Mr Tucker to bring this claim.

49    I am satisfied Mr Tucker’s compensation application is not authorised by the Banjima native title holders in accordance with s 61(1), and there is no real prospect of Mr Tucker securing proper authorisation. Indeed, he did not suggest he wished to attempt to do so. This is by itself a sufficient basis for the proceeding to be summarily dismissed.

The consequence of Mr Tucker’s application failing to identify any compensable acts

50    An entitlement to compensation arising under Pt 2 Divs 2, 2A, 2B, 3 or 4 of the NTA is for compensation on just terms for “any loss, diminution, impairment or other effect” of an “act” on native title rights and interests: NTA ss 48 and 51(1). In other words, there must be a specific “act”, or a number of specific acts, identified. Usually, these may be events such as the grant of a lease, or public works, or the grant of a mining licence – those events being said to be the conduct that has extinguished or impaired native title rights and interests. The word “act” is dealt with in s 226 of the NTA:

226    Act

Section affects meaning of act in references relating to native title

(1)    This section affects the meaning of act in references to an act affecting native title and in other references in relation to native title.

Certain acts included

(2)    An act includes any of the following acts:

(a)    the making, amendment or repeal of any legislation;

(b)    the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument;

(c)    the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters;

(d)    the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise;

(e)    the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation;

(f)    an act having any effect at common law or in equity.

Acts by any person

(3)    An act may be done by the Crown in any of its capacities or by any other person.

(Original emphasis.)

51    This is a “detailed”, though non-exhaustive, definition: Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [23] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Gumana v Northern Territory of Australia [2007] FCAFC 23; 158 FCR 349 at [115]. The provision uses a device of statutory construction – “affects the meaning of” – which:

alters the meaning of “act” in references to an act affecting native title and in other references in relation to native title. In each provision, the meaning of the word affected … is changed when that word is used in a particular phrase or context in the Native Title Act.

(Tjungarrayi v State of Western Australia [2019] HCA 12; 269 CLR 150 at [121], Gordon J.)

52    I have previously described this type of device as being somewhat unhelpful: see, in the context of s 253 of the NTA, McGlade v Native Title Registrar [2017] FCAFC 10; 251 FCR 172 at [380]. In Vanstone v Clark [2005] FCAFC 189; 147 FCR 299, Weinberg J considered the phrase “has a meaning affected by” in s 4 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). His Honour’s interpretation was cited with approval in Knauf Plasterboard Pty Ltd v Plasterboard West Pty Ltd (in liq) [2017] FCA 866; 254 FCR 559 at [123]-[125]. In Vanstone, Weinberg J held (at [132]-[133], [135]):

The use of the term “has a meaning affected by” is a drafting device that is now found in a number of Commonwealth statutes. …

Despite the fact that there are now numerous examples of the use of this drafting device, counsel were not able to point to any authority bearing upon the question whether, as a matter of construction, this formula allows for an expanded meaning to be given to a word beyond the ordinary meaning that would otherwise be accorded to it.

…

If the words “affected by” are to be given any sensible interpretation, they must contemplate the expansion or contraction of the meaning that would otherwise be applicable. The word “affected”, in its ordinary and natural sense, means “influenced”, “altered”, or “shaped”. It is not merely a synonym for “touching”, “relating to” or “concerning”: Re Bluston (Deceased) [1967] Ch 615 at 633 per Winn LJ. It is plainly apt to include the power to modify, whether by widening or by narrowing, the ordinary meaning of any word that is “affected”.

53    It is not necessary to express any view about the meaning of “act” in the NTA. It is sufficient to note that, whatever meaning is given to it, the word is used in a way which plainly contemplates the specific identification of what is said to have adversely affected native title rights and interests.

54    In Bigambul at [74]-[75], Rangiah J described the critical importance of the existence of a compensable act for the determination of an application for compensation under the NTA:

The central premise underpinning the NTA’s compensation scheme is the doing of an act that affects native title rights and interests. An act, pursuant to s 227, “affects” native title rights and interests if the act extinguishes or is otherwise wholly or partially inconsistent with their continued existence, enjoyment or exercise. As the High Court observed in Griffiths at [43], “the entitlement to compensation is for the ‘act’ itself”; and, at [46], “[t]he act and the effect of the act must be considered”. A determination of whether compensation is payable, and in what amount, depends, therefore, upon identification of an act that has adversely affected native title rights and interests (a “compensable act”).

In addition, identification of a compensable act is necessary for the identification of the entity or person to whom the act is attributable in order to determine by whom compensation is payable.

(Original emphasis.)

55    At [86]-[93], Rangiah J explained that the role of the Native Title Registrar to notify parties who may have a right to be heard in the determination of the compensation application requires the Registrar to be able to identify the area covered by the application, which in turn requires the identification of a compensable act. For that reason, a compensation application must identify the acts which are said to give rise to a right to compensation.

56    As senior counsel for the State submitted at the hearing of the interlocutory application, the legislative scheme of the NTA contemplates that if an applicant wishes to seek compensation under the NTA for the effects of a mining lease on native title, for example, then the applicant would have to provide the details of those leases in the application. However, Mr Tucker’s compensation application does not provide any details of the acts said to have extinguished or affected native title rights and interests for which compensation is claimed. Instead, at Schedule I of the Form 4 application, the schedule at which alleged compensable acts are to be detailed, Mr Tucker has written “UNKNOWN – STATE GOVERNMENT”.

57    Speaking generally, if the only difficulty with a compensation application was its failure sufficiently to identify compensable acts, but it was clear that the requirements of s 61(1) had been met, it might be that the just and appropriate course would be to direct the applicant and the State to confer with a view to the State assisting an applicant to be able to plead what those acts were with some specificity. That is because it is the State which is the repository of most tenure material, and certainly for persons (or RNTBCs) who are not well resourced, it could be very challenging to find the requisite details of compensable acts. even if they have some general idea of the acts they say have affected their native title.

58    Again, speaking generally, it might be that the Court would need to be persuaded an applicant had made their best efforts to identify compensable acts by at least giving as much of a description as available to them – for example, from a native title determination, or even from the knowledge of native title holders or claimants about the grant of leases or mining interests. If the Court were satisfied an applicant was attempting to do their best, the absence of a complete list of compensable acts might not justify the strike out or dismissal of a claim. In my respectful opinion, the Court needs to be careful, especially at the early stages of jurisprudence in compensation, to ensure that the burdens placed on applicants are no greater than those placed on applicants in other areas of the Court’s jurisdiction, where case management is frequently used to give applicants an opportunity to remedy defects in their originating process or pleadings. That may mean some delays in the notification process, or it may mean that the areas over which compensation is claimed need to be carefully specified. All these matters will be fact and circumstance dependent. For present purposes, it is sufficient to state that I would be reluctant to see the absence of a complete or detailed list of specified compensable acts as necessarily or automatically justifying summary dismissal of a compensation application.

59    In this case, however, there has been no attempt by Mr Tucker to identify any compensable act. It is more than a lack of detail. There was no attempt at all to describe the compensable acts.

60    If the application had been properly authorised, in my view it is highly unlikely that there would have been a total absence of specified compensable acts. That is because the native title holders, here the Banjima People, would have had to be properly informed of what kind of compensation application they were authorising, and what events were alleged to have affected their native title.

61    Therefore, in this particular situation, the Court can be satisfied, and is satisfied, that the second reason Mr Tucker’s compensation application has no reasonable prospects of success is because the compensation application has entirely failed to identify even a single act that is claimed to have affected the native title of the Banjima People, in the sense “affects” is used in s 227 of the NTA.

Conclusion

62    On those two bases – lack of compliance with s 61(1), and failure to identify any compensable act – the Court is satisfied Mr Tucker’s application has no reasonable prospects of success and should be dismissed. There will be judgment in favour of the State.

63    As I noted earlier, dismissal of this proceeding is not connected with any claims that might be made in respect of the royalty agreements to which Mr Tucker referred. That is a matter on which Mr Tucker has received legal advice.

64    Given what the Court heard from Mr Tucker, it is also to be hoped that more constructive discussions with BNTAC might result in some improvement in the living conditions of the family community at Wirrilimarra.

Associate:

Dated:    22 November 2022