FEDERAL COURT OF AUSTRALIA

Carter on behalf of the Warrwa People v State of Western Australia (No 2) [2024] FCA 206

ORDERS

THE COURT NOTES THAT:

A.    This proceeding is the combination of two native title determination applications made by the Warrwa People, being:

(a)    Warrwa People Application filed on 16 September 2010 (WAD 262 of 2010); and

(b)    Warrwa #2 Application filed on 3 October 2012 (WAD 258 of 2012),

and is known as the Warrwa Combined Application. By order of the Court made on 16 January 2019, the Warrwa Combined Application was given a new proceeding number WAD 33 of 2019.

B.    The Warrwa Combined Application is overlapped in part by the Boorroola Moorrool Moorrool Application (WAD 598 of 2016). The area of overlap concerns the town of Derby.

C.    On 1 December 2020, a determination of native title in respect of part of the land and waters covered by the Warrwa Combined Application was made by the Court by consent of the parties pursuant to s 87A of the Native Title Act 1993 (Cth). The area covered by that determination was referred to as Part A, and the determination excluded three separate areas covered by the Warrwa Combined Application being:

(a)    that part of the Warrwa Combined Application that is overlapped by the Boorroola Moorrool Moorrool Application (the Overlap Area);

(b)    that part of the Warrwa Combined Application known as “Big Springs”; and

(c)    that part of the Warrwa Combined Application known as “Area East of the Napier Ranges”.

D.    On 11 September 2023, orders were made separating the remainder of the Warrwa Combined Application into the above three parts as follows:

(a)    Part B – comprising the Overlap Area, being the area shown with purple hatching in the map at Annexure 3 to those orders;

(b)    Part C – comprising the area known as “Big Springs”, being the area described in Annexure 1 to those orders and shown with pink hatching in the map at Annexure 3 to those orders; and

(c)    Part D – comprising the area known as “Area East of the Napier Ranges”, being the area described in Annexure 2 to those orders and shown with blue hatching in the map at Annexure 3 to those orders.

E.    The following orders concern Part D of the Warrwa Combined Application. A copy of Annexures 2 and 3 to the orders made on 11 September 2023, which define the Part D area, are also attached to these orders.

THE COURT ORDERS THAT:

1.    The Warrwa Combined Application be dismissed in so far as it concerns the land and waters the subject of Part D of the proceeding, being the area described in Annexure 2, and shown with blue hatching in the map at Annexure 3, to the orders dated 11 September 2023.

2.    There be no orders as to costs.

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

ANNEXURE 2

DESCRIPTION OF THE AREA KNOWN AS “AREA EAST OF THE NAPIER RANGES” (PART D)

All those lands and waters commencing at a point on a northwestern boundary of Native Title Determination WAD94/2012 Bunuba #2 Part A (WCD2015/009) at Longitude 124.883103 East and extending northeasterly, generally northerly, generally easterly and again generally northeasterly along the boundary of that native title determination to the intersection with a southern boundary of Native Title Determination WAD6016/1996, WAD6015/1999, WAD6006/2002 Wanjina – Wunggurr Wilinggin Native Title Determination No 1 (WCD2004/001) at Longitude 125.236615 East; Then generally northwesterly and generally southwesterly along the boundaries of that native title determination to the intersection with the boundary of Native Title Determination WAD33/2019 Warrwa Combined Part A (WCD2020/010) at Longitude 124.837152 East; Then generally easterly and generally southeasterly along the boundaries of that native title determination through the following coordinate positions:

Then southeasterly back to the commencement point.

Note:    Geographic Coordinates provided in Decimal Degrees. Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 28th January 2023.

For the avoidance of doubt the Part D area excludes any land and waters the subject of:

Native Title Determination WAD33/2019 Warrwa Combined Part A (WCD2020/010) as determined in the Federal Court on 1 December 2020.

Native Title Determination WAD6016/1996, WAD6015/1999, WAD6006/2002 Wanjina – Wunggurr Wilinggin (WCD2004/001) as determined in the Federal Court on the 27 August 2004.

Native Title Determination WAD94/2012 Bunuba #2 Part A (WCD2015/009) as determined in the Federal Court on the 22 December 2015.

Datum:        Geocentric Datum of Australia 2020 (GDA2020)

Prepared By:    Geospatial (Landgate) 23 February 2023

Use of Coordinates:

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

ANNEXURE 3: MAP

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    On 16 November 2023, the Court made orders of its own motion setting down for determination on the papers the question whether Part D of this proceeding (the Warrwa Combined Application) should be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) on the ground that the applicant has no reasonable prospect of successfully prosecuting Part D of the proceeding (the dismissal question). The reason for making those orders is explained in the section of these reasons that describes the relevant procedural history of the proceeding.

2    The Court also made timetabling orders providing the applicant and the first respondent with an opportunity to file and serve any evidence and a written submission in respect of the dismissal question.

3    On 27 November 2023, the applicant filed and served written submissions opposing the dismissal of Part D of the proceeding, supported by an affidavit of Nathan Lennard affirmed 12 October 2023.

4    On 18 December 2023, the State of Western Australia filed and served written submissions in support of the dismissal of Part D of the proceeding.

5    For the reasons explained below, in my view the applicant has no reasonable prospect of successfully prosecuting Part D of the proceeding and that part of the proceeding should be summarily dismissed pursuant to s 31A of the FCA Act.

Procedural history

6    The Warrwa Combined Application is the result of the combination of two native title determination applications made by the Warrwa People, being:

(a)    Warrwa People Application filed on 16 September 2010 (WAD 262 of 2010); and

(b)    Warrwa #2 Application filed on 3 October 2012 (WAD 258 of 2012).

7    By leave granted by the Court on 12 May 2014, the Warrwa People Application and the Warrwa #2 Application were amended. The amended application, known as the Warrwa Combined Application, was filed with the Federal Court on 24 September 2014 and continued under Federal Court file number WAD 258 of 2012. On 1 December 2014, the Native Title Registrar gave notice pursuant to s 66A(2)(a) of the Native Title Act 1993 (Cth) (NTA) of the combining of the Warrwa People Application and the Warrwa #2 Application to each person who, immediately before the combining, was a party to either proceeding. By order of the Court made on 16 January 2019, the Warrwa Combined Application was given a new electronic court file proceeding number WAD 33 of 2019.

8    On 1 December 2020, a determination of native title in respect of part of the land and waters covered by the Warrwa Combined Application was made by the Court by consent of the parties pursuant to s 87A: see Carter on behalf of the Warrwa Mawadjala Gadjidgar and Warrwa People Native Title Claim Groups v State of Western Australia [2020] FCA 1702 (Carter). The area covered by that determination was referred to as Part A, and the determination excluded three separate areas covered by the Warrwa Combined Application being:

(a)    that part of the Warrwa Combined Application that is overlapped by WAD 598 of 2016 (the Overlap Area);

(b)    that part of the Warrwa Combined Application known as “Big Springs”; and

(c)    that part of the Warrwa Combined Application known as the “Area East of the Napier Ranges”.

9    The applicant has actively prosecuted its claim in respect of the Overlap Area, which concerns an area encompassing the town of Derby in Western Australia. Preservation evidence was heard by the Court during November 2019 at various locations within and around the town of Derby from three Warrwa witnesses, namely Henry Ah Choo, Barry Lennard and Tommy May (now deceased). More recently, the Court made orders timetabling a hearing in respect of the Overlap Area in respect of a single question, being whether the descendants of a particular ancestor (Topsy Mouwudjala) possess native title rights and interests in the Overlap Area.

10    Although there was a long period of inactivity in respect of the Big Springs area, the Court has been informed that the applicant has been engaged in negotiations with a neighbouring Aboriginal group in respect of native title rights and interests in that area and it is expected that an application for the determination of native title by consent in respect of that area will be forthcoming.

11    As set out below, no substantive progress has been made in advancing that part of the Warrwa Combined Application that concerns the Area East of the Napier Ranges.

12    Recognising that the three remaining areas covered by the Warrwa Combined Application were progressing at different rates and through different procedures, and in order to give greater specificity to those areas, on 11 September 2023 orders were made separating the remainder of the Warrwa Combined Application into the following three parts:

(a)    Part B – comprising the Overlap Area, being the area shown with purple hatching in the map at Annexure 3 to those orders;

(b)    Part C – comprising the Big Springs area, being the area described in Annexure 1 to those orders and shown with pink hatching in the map at Annexure 3 to those orders; and

(c)    Part D – comprising the Area East of the Napier Ranges, being the area described in Annexure 2 to those orders and shown with blue hatching in the map at Annexure 3 to those orders.

13    The remainder of these reasons concerns the Part D area. A copy of Annexure 3 to the orders of 11 September 2023, showing the Part D area, is annexed to these reasons.

14    As the Court noted in Carter at [32], the applicant decided to exclude the Area East of the Napier Ranges (and the Big Springs area) from the Warrwa Combined Part A determination area as a result of anthropological research which suggested that, in addition to native title rights and interests claimed by the Warrwa people, the area may be the subject of native title rights and interests held by neighbouring groups. The Court noted that the applicant intended to progress claims for native title in those areas separately and following consultation with the relevant neighbouring groups.

15    In a report filed on 4 September 2018, the applicant informed the Court and the parties that field-based research had been conducted by anthropologist, Dr Bill Kruse, in respect of the Part D area during August 2018, which had included consultations with members of the Warrwa claim group as well as persons who identify as Ngarinyin and Bunuba. The report noted that the outcomes from the field work, and recommendations regarding approaches to recognise rights and interests under the NTA, had been reported to a meeting of Wilinggin Aboriginal Corporation (WAC) (which represents the interests of Ngarinyin people) in August 2018, and would be reported to a meeting of Bunuba Dawangarri Aboriginal Corporation RNTBC (BDAC) (which represents the interests of Bunuba people) at the next available opportunity.

16    In the ensuing years, the applicant had limited success in engaging with both WAC and BDAC in relation to how native title may be recognised in respect of the Part D area.

17    From at least October 2018, the Court regularly ordered case management timetables in respect of the Part D area. Those timetables contemplated community meetings with Warrwa claimants regarding further fieldwork, meetings with WAC and BDAC as well as with senior Ngarinyin and Bunuba people, and family group meetings between Warrwa, Ngarinyin and Bunuba native title holders to discuss the future progress of the Warrwa claim in respect of the Part D area. On multiple occasions, the applicant advised the Court that it would be unable to comply with the timetable due to difficulties experienced in securing the engagement of the neighbouring groups in terms of responding to correspondence and meeting requests.

18    Given the lack of progress in respect of the Part D area over many years, on 29 September 2022 I made orders requiring the applicant to file and serve an affidavit identifying each of the Aboriginal persons or bodies with whom the applicant had held discussions and who, to the knowledge of the applicant, claim native title rights or interests in the land and waters comprising the Part D area and providing a chronology of the discussions or communications with each of those persons or bodies. In compliance with that order, Scott Howieson, a Legal Officer of Kimberley Land Council Aboriginal Corporation (KLC), affirmed an affidavit on 28 October 2022. In the affidavit, Mr Howieson listed a number of Ngarinyin and Bunuba people who assert native title rights and interests and WAC, BDAC and Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (which is the trustee prescribed body corporate for Ngarinyin native title holders) as relevant bodies representing the interests of Ngarinyin and Bunuba people. Mr Howieson’s affidavit also presented a chronology of attempts by the Warrwa applicant, and the KLC on behalf of the Warrwa applicant, to engage with the above persons and bodies in respect of the Part D area. Relevant events include:

(a)    between 14 and 15 August 2018, Dr Kruse conducted fieldwork in the Part D area with Warrwa, Ngarinyin and Bunuba representatives;

(b)    on 7 and 8 May 2019, the KLC attended a BDAC board meeting to discuss the Warrwa claim in respect of the Part D area;

(c)    on 29 May 2020, the Warrwa applicant wrote to the BDAC and the WAC requesting advice whether the Bunuba and Ngarinyin people respectively assert native title rights and interests in respect of the Part D area;

(d)    on 29 July 2020, the KLC attended a BDAC board meeting at which the BDAC confirmed that Bunuba people assert native title rights and interests in the Part D area;

(e)    on 14 December 2021, the Warrwa applicant wrote again to the WAC requesting advice whether Ngarinyin people assert native title rights and interests in respect of the Part D area;

(f)    on 13 January 2022, the WAC wrote to the Warrwa applicant confirming that Ngarinyin people assert native title rights and interests in the Part D area and that WAC would not support a Warrwa native title claim in respect of the Part D area;

(g)    on 1 July 2022, the Warrwa applicant wrote to the BDAC and the WAC proposing a meeting of representatives to discuss options for the ways in which native title may be recognised in the Part D area; and

(h)    on 1 July 2022, the WAC replied by email stating that it was unlikely the WAC board’s position, as stated in its letter of 13 January 2022, had changed.

19    On 21 November 2022, I made further orders requiring the applicant to send letters to each of the Aboriginal persons or bodies whom the applicant has reason to believe may claim native title rights and interests in the Part D area and notifying them, amongst other things, of a further scheduled hearing on a date in 2023 and that the Court would consider making an order at that hearing precluding any person from making an application under s 84(5) of the NTA to be joined as a party to the proceeding without the leave of the Court. The order was intended to provide a procedure by which other Aboriginal persons, particularly Ngarinyin and Bunuba people, could come forward and participate in the present proceeding in respect of the Part D area.

20    By a further affidavit made on 25 July 2023 in accordance with the further orders of the Court, Mr Howieson deposed that, on 19 July 2023, the Warrwa applicant arranged a meeting at the Civic Centre in Derby between Warrwa and Ngarinyin people in relation to the recognition of native title in the Part D area. The Warrwa applicant also invited Bunuba people to attend the meeting but, shortly before the meeting, the BDAC advised that relevant Bunuba people had sorry business for a Bunuba elder, and would not be available to attend. Mr Howieson deposed that the attendees at the meeting were unable to agree on a way forward to progress the native title claim over the Part D area.

21    At a case management hearing conducted on 2 August 2023, a legal representative of the BDAC attended but no representative of the Ngarinyin people attended. Mr Mumford on behalf of the applicant informed the Court that Ngarinyin people considered that native title rights and interests in the Part D area are not shared with the Warrwa people, and that Ngarinyin people were proposing to take their own steps in relation to that area. Ms Myers on behalf of the BDAC attended the hearing and informed the Court that Bunuba people considered that they hold native title rights and interests in the Part D area, but were willing to meet with Warrwa people later in August 2023 to discuss the Warrwa claim in respect of that area. The State informed the Court that it was concerned that, although the Warrwa claim in respect of the Part D area had been on foot for many years, the State had not received any material supporting the Warrwa claim in respect of the Part D area. The State indicated its view that the time may be approaching where a summary dismissal application may need to be made. At the hearing, I informed the parties that, if the claim in respect of the Part D area was not able to be progressed, the Court would consider whether it should be summarily dismissed. The case management hearing was then adjourned to 12 September 2023, and an order was made for the Warrwa applicant to give a copy of the order to the general manager of the WAC.

22    At the case management hearing on 12 September 2023, Ms Myers on behalf of the BDAC attended but no representative of the Ngarinyin people attended. Mr Howieson for the Warrwa applicant informed the Court that a meeting had occurred between the Warrwa applicant and representatives of the BDAC on 23 August 2023. Following that meeting, the BDAC wrote the Warrwa applicant informing them that BDAC intended to lodge a separate native title claim over the Part D area and that its position was that Warrwa people did not have rights and interests in the area. That position was confirmed by Ms Myers at the hearing. In circumstances where it was clear that the Warrwa applicant’s claim in respect of the Part D area could not progress to any form of consent determination (as it was opposed by the Ngarinyin and Bunuba people), I indicated to the Warrwa applicant that the Court would require them to propose a timetable for progressing the claim to a hearing, failing which the Court would need to consider whether the claim should be summarily dismissed. The case management hearing was adjourned until 14 November 2023 to enable the Warrwa applicant and the State to confer about a timetable to progress the matter to hearing.

23    On 20 October 2023, the applicant provided the State with an affidavit of Nathan Lennard affirmed 12 October 2023. Mr Lennard is a member of the Warrwa claim group (and a native title holder in respect of the Part A native title determination). The affidavit set out Mr Lennard’s evidence in support of the Warrwa people’s claim to native title in respect of the Part D area. Upon provision of the affidavit, the applicant informed the State that it did not anticipate being in a position to provide any further evidence in support of the Warrwa people’s claim to the Part D area. By letter dated 8 November 2023, the State informed the applicant that Mr Lennard’s affidavit did not, in the State’s view, provide a sufficient basis upon which the State could support the continuation of the Part D claim, and that this was particularly so in circumstances where the applicant had indicated that it did not intend to provide any further evidence in support of the claim.

24    At a further case management hearing on 14 November 2023, Mr Howieson for the applicant confirmed that the applicant had provided Mr Lennard’s affidavit to the State but that it did not anticipate being in a position to provide any additional evidence in respect of the Part D area. Mr Howieson also informed the Court that his instructions were to proceed with the claim in respect of the Part D area, however the applicant was unable to propose any programming orders to progress it. Mr Howieson candidly and appropriately informed the Court that, although he did not have positive instructions from the applicant that there will not be any further evidence on the claim, given the length of the matter and his discussions with the applicant so far, he did not anticipate being in a position to provide any further evidence. The State informed the Court that, in the circumstances, it supported the making of an order for the applicant to show cause why the claim ought not be dismissed. Ms Kilpatrick for the BDAC informed the Court that it had secured funding from the KLC to progress a claim in respect of the Part D area. In the circumstances, I made orders for the determination of the question whether Part D of the proceeding should be summarily dismissed pursuant to s 31A of the FCA Act on the ground that the applicant has no reasonable prospect of successfully prosecuting that part of the proceeding.

Summary dismissal

25    Section 31A(2) of the FCA Act provides that the Court may give judgment for a respondent against an applicant if the Court is satisfied that the applicant has no reasonable prospect of prosecuting the proceeding or that part of the proceeding. Section 31A(3) provides that a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.

26    The procedures governing the exercise of the Court’s power to dismiss a proceeding summarily are contained in r 26.01 of the Federal Court Rules 2011 (Cth) (Federal Court Rules). Rule 26.01(1)(a) provides that a party may apply to the Court for an order that judgment be given against another party because, amongst other things, the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding. By r 1.40, the Court may exercise a power mentioned in the Federal Court Rules on its own initiative. That occurred in the present case, although an order for summary dismissal of the Part D claim is supported by the State.

27    As s 31A(3) makes express, the Court need not be satisfied that the proceeding or part of the proceeding is hopeless or bound to fail. Rather, the focus is on whether there is a “reasonable prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail”: Spencer v Commonwealth (2010) 241 CLR 118 at [52] (Hayne, Crennan, Kiefel and Bell JJ). It can be accepted, as submitted by the applicant, that the power to dispose of proceedings summarily should only be exercised with great care and caution: Spencer at [24]-[25] (French CJ and Gummow J).

28    In Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978, McKerracher J helpfully summarised the principles relevant to summary dismissal under s 31A (at [3]). I have had regard to those principles. It is unnecessary in this case to reproduce them. It is relevant, though, to emphasise the last of the principles mentioned by McKerracher J, that 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 that the proceedings have reached and the materials available to the Court for considering the application.

29    The applicant submitted that where, on the version of the evidence favourable to it, there is a real question of fact to be tried, summary dismissal is inappropriate. So much can be accepted: see for example Landers v State of South Australia (2003) 128 FCR 495 at [7] (Mansfield J). What must be assessed is whether there is a real question to be tried. In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372, Gordon J observed (at [132], citations omitted):

I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences — but only reasonable inferences — in favour of the non-moving party. I emphasise “reasonable” because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between “hopeless” cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.

30    Her Honour’s statement has been regularly referred to with approval by the Court: see for example, Ashby v Commonwealth of Australia (No 2) [2021] FCA 830 at [12] (Bromwich J); Shockthorap v Electricity Network Corporation [2019] FCA 619 at [61] (Banks-Smith J); Blakeley v National Australia Bank [2018] FCA 796 at [31] (McKerracher J); Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171; 273 IR 439 at [61] (Gilmour J); Smartec Capital Pty Ltd v Centro Properties Ltd [2011] FCA 716 at [15] (Stone J); Visscher v Teekay Shipping (Australia) Pty Ltd [2011] FCA 1 at [19] (Katzmann J).

31    The applicant drew the Court’s attention to a number of summary dismissal cases involving native title applications, including Budby on behalf of the Barada Barna People v Queensland [2013] FCAFC 149, Hazelbane v Northern Territory of Australia [2014] FCA 886 and Bates on behalf of the Malyangapa Part B Claim Group v Attorney General of New South Wales [2021] FCA 1198. Each of those cases turned on their facts and no new point of principle was established.

32    The Court also has power under r 5.23 of the Federal Court Rules to dismiss a proceeding if an applicant is in default. Rule 5.22 provides that a party will be in default if, amongst other things, the party fails to prosecute the proceeding with due diligence. In Bulabul on behalf of the Kewulyi, Gunduburun and Barnubarnu Groups v Northern Territory of Australia [2017] FCA 461, White J dismissed a number of native title determination applications that had been made in respect of land and waters in the Northern Territory, but which had not been progressed by the applicants (a decision which was upheld on appeal in Henwood v Northern Territory of Australia [2017] FCAFC 182). Justice White discussed the principles guiding the exercise of the discretion afforded by r 5.23, and its previous application in the context of native title cases, as follows:

22    The discretion conferred by Rules such as r 5.23 is broad and unconfined: Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520, (1990) 27 FCR 388 at 396; Welsh v Digilin Pty Ltd [2008] FCAFC 149 at [14]. In Lenijamar, Wilcox and Gummow JJ said, in respect of a predecessor of r 5.23, at 395-6:

[T]he power given by this rule is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court’s judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule. There is no requirement of “inordinate and inexcusable delay” on the part of the applicant or the applicant’s lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties.

…

[T]wo situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant’s state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. … .

23    There are several instances of the power to dismiss for want of prosecution being exercised in the native title context. These include Lawson v NSW Minister for Land and Water Conservation [2007] FCA 8; Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister for Lands for the State of New South Wales [2010] FCA 1073; MT (dec’d) v Western Australia [2015] FCA 697; and Galway v Victoria [2015] FCA 497. Several of these cases concerned prolonged inactivity by applicants in pursuing their claims. Thus, in MT (dec’d) v Western Australia, Barker J said at [91]:

This then is not a case where there is some passing default that can be remedied, easily or otherwise. This is not a case where there is some technical failure to comply with orders made. This is not a case where a party comes forward and, by reference to satisfactory explanation, seeks an indulgence to remedy its default. Rather, this is a case where nothing of substance has been done by the applicant in advancing the case since the Bagshaw Report was made available to it and its constituent members more than 10 years ago, and nothing is likely to be done in that regard.

24    In Galway v Victoria, North J said at [6]:

The decision to strike out the matter does not reflect upon the existence or otherwise of any native title rights which the group or the individual groups may have. Rather, this is a procedural decision which is based on the fact that the application has been on foot without significant progress for such a long time. The order to strike out the application is made because without progress it would be wrong to keep the parties returning to the Court for no good reason. … .

25    Finally, in Atkinson v Minister for Lands, Jagot J said at [25]:

The diligence of the applicants in pursuing their funding application is also not to the point. These proceedings are not about funding. These proceedings concern the applicants’ substantive claims for native title over the subject land. The applicants, having been permitted to exhaust every opportunity to obtain funding to support the making of their claims, either are or are not in a position to prosecute those claims in these proceedings. If, as the history of the proceedings suggest, the applicants are not able to do so, then it is contrary to the interest or justice to permit the proceedings to consume yet more time and resources with no real end in sight.

Evidence relied upon by the applicant in support of the Part D claim

33    In opposing summary dismissal, and in support of its claim to hold native title in respect of the Part D area, the applicant relies on the following:

(a)    the determination of native title made on 1 December 2020 by Banks-Smith J in Carter;

(b)    the evidence of Barry Lennard deposed in the preservation evidence hearing conducted at May River Crossing on Meda Station and at the Derby Recreation Centre on 26 and 27 November 2019, and the witness statement of Barry Lennard dated 7 November 2019 which was tendered as exhibit W3 during that hearing, and filed in this proceeding on 3 February 2020; and

(c)    the affidavit of Nathan Lennard affirmed on 12 October 2023 and filed in this proceeding on 27 November 2023.

34    As noted above, the applicant has informed the Court that it does not anticipate being in a position to provide any additional evidence in respect of the Part D area. There is no historical or anthropological evidence before the Court in respect of the area and it is apparent that the applicant is unable to provide any such evidence in support of its claim in respect of the Part D area.

The decision in Carter

35    In Carter, the Court recognised that Warrwa people acknowledged and observed, and continue to acknowledge and observe, traditional laws and customs which give rise to rights and interests in the Part A determination area, which lies to the west of the Part D area. In Carter at [46], Banks-Smith J adopted the joint submissions of the parties which provided detail concerning the basis of the Warrwa people’s native title rights and interests in what was described by the parties as “Warrwa Core Country” (being the Part A area the subject of the determination in Carter – see at [8]):

(1)    The Native Title Holders are the Warrwa People who are descended from Warrwa speaking ancestors and have rights and interests in Warrwa Core Country stemming from their system of law and culture.

(2)    The term ‘Warrwa’, or some variation thereof, has always existed, having been identified in the earliest of the ethno-historical materials. The Kruse Report presented sufficient material and analysis to allow the State to reasonably infer that a group known as ‘Warrwa’ were in occupation of Warrwa Core Country prior to effective sovereignty.

(3)    Warrwa People hold rights and interests in the Determination Area through the principle of spiritual imbuement to country, which is transferred via descent from ancestors who are recognised as deriving spiritually and physiologically from Warrwa Core Country and who held rights and interests there.

(4)    The Warrwa People’s society is situated within a broader regional society within the West Kimberley region of Western Australia, which includes both Warrwa and Nyikina Peoples. Religious beliefs, systems of social kinship and language are largely similar across the regional society. Within the regional society, the term ‘Warrwa’ denotes a distinct language as well as a distinct group of people with a connection to the Warrwa Core Country area.

(5)    For Warrwa People, their religious connection with Warrwa Core Country arises from the Dreamtime, or the creative epoch. Some particular elements of the Dreamtime beliefs include:

(a)    spiritual imbuement through the religious relationship between person and country;

(b)    totemic patrifiliation to totemic centres within named estate areas; and

(c)    other social forms, such as ‘finding’ a newborn child in country.

(6)    The most significant religious beliefs, rules and actions of the regional society, including Warrwa People, in relation to country comprise: the ‘right’ families speaking for country; spiritual imbuement to country; belief in mythical creatures being present in the landscape; and concerns that country, or visitors to country, may be physically or spiritually harmed if proper protocols are not followed.

(7)    The religious basis for Warrwa People’s connection to country also founded a duty of care in particular Warrwa People, and Warrwa People as a whole, to look after sites in Warrwa Core Country. There are some sites in Warrwa Core Country with dangerous potency and enormous numinous power. Warrwa People who know country and its dangers therefore have an obligation to protect strangers and others who have no knowledge of those dangers from the power of those sites in Warrwa Core Country. This duty of care is closely linked to the right of Warrwa People to reside in, access and utilise Warrwa Core Country as a consequence of spiritual imbuement. Warrwa claimant, Barry Lennard, provides the following example about Milala, a place on Meda Station, within Warrwa Core Country:

The boab trees are like a magnet to me; I feel their power in me. I warn people about those special trees that they should not touch. My father told me about that place. He taught me where to go and where not to go; he guided me. I warn people not to go to the tree at Milala because it’s a dangerous place that needs to be protected, and because my father warned me about it. My father told me that if people went to that tree and touched it, it could kill them; so we always walked around it. I warn people about that place; I warn them not to go near there.

(8)    Mr May also refers to spirits, or rai, which exist within particular places on Warrwa Core Country, and the need to exercise caution due to the presence of these spirits:

There are lots of places on Meda Station where you need to be careful: Murungul places. The places where the rai are called murungul. You have to be careful because someone is there watching and listening to you at those places. They could make you mad. There are good and bad spirits. You have to listen to the old people when they tell you where not to· go, to avoid those spirits.

(9)    Warrwa People define the extent of Warrwa Core Country with reference to the following concepts:

(a)    language embedded in country;

(b)    areas of country to which members of the Warrwa claim group have a descent based connection to, and spiritual imbuement from (and with reference to two named estate groups in Warrwa Core Country, namely Imarbla and Emama Nguda: see further below);

(c)    knowledge of song and ceremony for country;

(d)    knowledge of areas of country where forebears were born and/or are buried;

(e)    by reference to forebears living on and utilising the resources of Warrwa Core Country;

(f)    knowledge of, and ceremonial responsibility for, certain sacred sites (some of which are considered boundary markers);

(g)    by reference to creeks, rivers, mountain ranges, pools and a range of other key distinguishing geological features;

(h)    some Warrwa People having greater knowledge of coastal areas and coastal flora and fauna (Emama Nguda estate), in contrast to riverine peoples along the Fitzroy River (Imarbla estate);

(i)    areas of country in relation to which they assert exclusive rights and interests, that is, country which is not subject to traditional use or occupation by other native title groups; and

(j)    by distinction from areas in relation to which native title has already been determined.

(10)    Warrwa People continue to access and utilise ceremonial and traditional resource areas within Warrwa Core Country, including Milala Pool, Poulton Pool and the May River crossing. These areas are used for hunting, fishing, cooking, camping and taking and utilising the natural products of the land and conducting cultural activities.

(11)    Use of the land and its resources is constrained by cultural rules and protocols. One example is that because some sites within Warrwa Core Country are gender restricted, women and children cannot access areas of Warrwa Core Country, and likewise neither can men.

(12)    For Warrwa People, access to and use of places on Warrwa Core Country is intertwined with religious belief about country. Warrwa claimant, Barry Lennard, provides the following example, recalling visiting locations on Warrwa Core Country as a child:

The Warrwa places we went had language names: Bambidan, Kula, which is close to Milala, and Milala … At one place, at Number One Bore on the May River, there is a big rock pile where I was told to sing out names of the old people to the spirits so that we would be able to get fish. If you did that, the spirits of the old people would help you get fish.

(13)    The laws and customs practised by Warrwa People today remain rooted in the religious and social systems arising from the Dreamtime, and remain consistent with the laws and customs practised by the claimants’ ancestors. The Warrwa People’s society has substantially maintained its identity and existence to the present day and Warrwa People are united by traditional laws and customs by which they have an ongoing connection to Warrwa Core Country.

36    The Court’s findings in Carter are limited to the Part A area which was the subject of that proceeding. As discussed by Rangiah and Charlesworth JJ in Stuart v State of South Australia [2023] FCAFC 131 at [56]-[90], while a native title determination is a judgment in rem that is binding on all of the world, the matters determined are necessarily geographically specific. That does not render the determination made in Carter irrelevant to the Part D claim. It does mean, though, that the determination in Carter established only that Warrwa people hold native title rights and interests in an area that is adjacent to the Part D area. The determination in Carter provides no direct assistance in answering the question whether the area in which the Warrwa people traditionally held, and continue to hold, native title rights and interests ends at the boundaries of the Part A area or extends into the Part D area. That question must be answered by evidence showing that, under the traditional laws and customs acknowledged and observed by them, the Warrwa people possess rights and interests in the Part D area and that, by those laws and customs, they have a connection with the Part D area: see Bodney v Bennell (2008) 167 FCR 84 at [178] and [179] (Finn, Sundberg and Mansfield JJ).

Evidence of Barry Lennard

37    Barry Lennard is a member of the Warrwa claim group. He is a grandson of Bobby Ah Choo, who is one of the apical ancestors from whom the Warrwa claim group is descended. Mr Lennard’s father was William (Willie) Ah Choo (whose surname was subsequently changed to Lennard), who was the son of Bobby Ah Choo.

38    As noted above, Barry Lennard gave evidence in the preservation evidence hearing conducted at May River Crossing on Meda Station and at the Derby Recreation Centre on 26 and 27 November 2019 in the form of a signed witness statement and in oral testimony.

39    On this application, the applicant places reliance on two aspects of Barry Lennard’s evidence: the first concerns the Warrwa boundary with Bunuba country, and the second concerns the Warrwa boundary with Ngarinyin country.

40    As to the first aspect, Mr Lennard gave evidence that the Bunuba-Warrwa boundary is marked by a painting near Tunnel Creek. In his statement at [49], Mr Lennard stated that the Warrwa boundary runs “from Oobagooma, Robinson River; to Limestone Springs along the Napier Range; then along Wombarella Creek; back to the Napier Range again; then down to Inglis Gap (where Bunuba, Ngarinyin and Warrwa meet); down to Tunnel Creek, where the hand print is; down to Blina; then to Langey Crossing; then back up the coast, including Mary Island”. In his statement at [60], Mr Lennard stated: “Bunuba country is on the other side of Windjana Gorge and Tunnel Creek; there is a marking there where Warrwa country ends and Bunuba begins. There is a hand print near Tunnel Creek, in a cave in the Napier Range, that is part of the Warrwa boundary. Warrwa goes through Kimberley Downs to that handprint. Two brothers put the handprint on a wall at the cave there. Old Bunuba people talked about that boundary at Tunnel Creek between Warrwa and Bunuba. Johnny, William, Harry and Jaime Leopold: their father put the hand print there to mark his boundary. Garmunung was the name of their father.”

41    Both Windjana Gorge and Tunnel Creek are outside the Part D area. Both are located in the Napier Ranges and are south of the southern boundary of the Part D area. Both are within one of the Bunuba native title determination areas. Neither can be described as being located east of the Napier ranges.

42    In cross-examination at the preservation evidence hearing, Mr Lennard’s evidence concerning the boundary marker differed slightly from his statement. He described the marker as “two paintings there of two men” (T418.1). It is possible that the difference is only one of expression. Mr Lennard admitted that he had not been to the location, and indicated that “there are some people that know where that area is” (T414.8). Later, in cross-examination, Mr Lennard said that “It’s never been found yet” (T542.13), which I understand to mean that the claimed marker has never been found. Mr Lennard said that he was told about the marker by Bunuba people, but even Bunuba people do not know where it is (T542.29) and he had never seen it (T543.1). Mr Lennard said that he was aware that Tunnel Creek is within one of the Bunuba native title determination areas (T543.25).

43    As to the second aspect, Mr Lennard gave evidence that the old Ngarinyin people told him that the Ngarinyin-Warrwa boundary is at Inglis Gap (statement at [50] and [58]; T554-56). Inglis Gap is located just north of the far eastern tip of the Part D area.

Evidence of Nathan Lennard

44    In his affidavit affirmed on 12 October 2023, Nathan Lennard deposed that he is the son of Barry Lennard and he is a member of the Warrwa native title claim group through his descent from Bobby Ah Choo. Mr Lennard’s mother, Anne Lennard, is a Gooniyandi woman. Mr Lennard also gave evidence concerning the Warrwa boundaries with Bunuba country and with Ngarinyin country.

45    In relation to the boundary with Bunuba country, Mr Lennard deposed about events that occurred in 1994 when he was about 18 years old. Mr Lennard deposed that, in 1993, when he was 17 years old, he decided to leave school in Port Hedland and move to Galeru Gorge community at Mt Pierre Station, to go back home to his mother’s and her family’s country. In early 1994, Mr Lennard visited his uncle Brandon Williams in Junjuwa, which is a community in the town of Fitzroy Crossing. During this visit, Brandon Williams took Mr Lennard to meet Mr Williams’ father who was a Bunuba man called William Leopold (now deceased). Mr Lennard deposed that William Leopold belonged to Galamanda country, which is an area of Bunuba country. When Mr Lennard was at Mr Leopold’s house in early 1994, Mr Leopold asked for my help to build his community at Galamanda, which is a small community approximately 50 kilometres south-east of the Part D area. Mr Leopold told Mr Lennard that it had become clear to him that his family was not interested in country and cultural matters, so, instead of passing on his knowledge about Galamanda country to his family, he had decided to pass that knowledge on to Mr Lennard. Mr Lennard deposed that, as part of teaching him about Galamanda country, Mr Leopold taught him where the boundaries of Galamanda country were. Relevantly, Mr Lennard deposed as follows:

14.    One day in 1994 when I was out hunting with William Leopold, we were driving along the Fairfield-Leopold Downs road from Leopold Downs station to Fairfield station. The road runs alongside the Oscar Range, which is a limestone range that is part of the Devonian Reef that runs towards Fitzroy Crossing into Gooniyandi land. At one point along the road, before we reached Tunnel Creek, that old man slowed the car down and pointed to a rocky hill that formed part of the Oscar Range on the left (South-West) side of the road.

15.    This particular location in the range was identifiable because it was very flat along the top, and it had white rock all along the bottom half of the rock face, and dark grey rock along the top half. There was a smaller circular ridge on the right (North-East) side of the road and a very small creek on the right (North-East) side of the road at this point as well. I remember these features clearly, even though it was a long time ago.

16.    At the point where the old man slowed down, there was a sign on the side of the road that either said seven (7) or 11 kilometres to Tunnel Creek. I can’t remember whether the sign said seven (7) or 11 kilometres, because it was so long ago, but it was definitely one of the two.

17.    When the old man slowed down at this part of the road, he told me that this was the Western boundary of his country. He pointed up to the cliff and said up there you will see my father and my father’s brother’s handprints. He told me those two men were called Gumin-Nung (William Leopold’s father) and Jarung-Goo, … . He told me that if you walk up that cliff, and look to the side, you will find a cave, and in that cave you will find a painting showing handprints of those two brothers, alongside a Dingo’s handprint. That old man told me that the painting of the handprints marks the ancient boundary between his country and Warrwa country. He told me that his father had shown him the location of the painting, and told him that it was a boundary marker showing where their country finished, and where Warrwa country starts.

18.    William Leopold didn’t talk to me about any country North or West of the painting, other than to say that it was where Warrwa country began. I perceived that he had no interest in telling me about it, because he had no cultural obligations for that country.

19    We didn’t get out of the car or walk up the hill that day in 1994, so I didn’t see the painting of the handprints or its exact location.

20.    After he told me that story, William Leopold and I drove past the place where the painting is in the range many times before I left Janjuwa in 1995, but I never went into the cliff and saw the painting. At that point in my life, when I was only a young man, I didn’t think it would be important to go and see the painting. I trusted that old man, and I believed him when he showed me where it was.

46    Mr Lennard deposed that, on 10 October 2023 (two days before he affirmed his affidavit), he went on a trip from Derby with KLC representatives to attempt to locate the cave and the painting. The trip was unsuccessful. Mr Lennard deposed that they drove down the Fairfield-Leopold Downs road towards Galamanda and, once they had passed Tunnel Creek, Mr Lennard looked along the side of the road for a sign that said 7 or 11 kilometres to Tunnel Creek. He was unable to locate the sign and believes that it must have been removed since 1994. The group then measured 7 and 11 kilometres from the Tunnel Creek turnoff heading south-east towards Yiramilay on the odometer of the car, and stopped at both points. However, Mr Lennard was unable to recognise the landscape that he saw in 1994. At the 7 kilometre point, Mr Lennard walked toward a cliff on the south-west side of the road and found two cave entrances. However, he did not enter those caves to look for the paintings described by Mr Leopold because he considered that he did not have the right people, who were responsible for the caves, to accompany him.

47    In relation to the boundary with Ngarinyin country, Mr Lennard deposed that he had been told by his father, Barry Lennard, that the boundary is at Inglis Gap (although he did not say when he was told that). Mr Lennard also gave additional evidence that had not been given by his father. Mr Lennard deposed that the boundary marker at Inglis Gap was confirmed to his father and he by an old Ngarinyin man, named Peter Nyowida. In or around 1997, Mr Lennard’s father and he went to Mowanjum to visit some of his father’s family. Nyowida was at the house when they were there. At that time, Nyowida told them that Ngarinyin country finished at Inglis Gap. Mr Lennard deposed that, when he was alive, Nyowida was the “last living big Ngarinyin boss”.

Other evidence given at the preservation evidence hearing

48    At the preservation evidence hearing, evidence was also given on behalf of the Warrwa applicant by Walmanjarri man and Warrwa custodian, Tommy May (now deceased), and by Warrwa man, Henry Ah Choo.

49    As a young boy, Mr May was adopted by the Lennard family and raised on Meda station in the Part A determination area by brothers Willie and Con Lennard. Willie Lennard was the father of Barry Lennard. As noted in Carter at [44]:

… the parties also agreed that Tommy May (Ngarralja), who is a named custodian only for the Determination Area, is recognised by the native title holders to hold specific, non-transferable rights and interests in the Warrwa Core Country. Mr May is recognised by the Warrwa People as a ‘custodian’ who holds contingent rights in Warrwa Core Country. Mr May has a deep knowledge of Warrwa law and ceremony, as well as a deep knowledge of country, particularly around Meda pastoral station. Mr May’s rights are not transmissible to his offspring.

50    Mr May prepared a witness statement dated 1 November 2019 which was tendered during the preservation evidence hearing (exhibit W2). Mr May’s witness statement described growing up and living on Meda Station with the Lennard family. Mr May acquired his knowledge of Warrwa law and custom and country from Willie and Con Lennard, as well as “an old Warrwa man called Frank Dudangarri” (statement at [24]). Mr May’s witness statement described his knowledge of the Warrwa boundary with the Ngarinyin people as follows:

37.    Wombarella Creek is Ngarinyin. Imintji is Ngarinyin country too, and the road up to Imintji.

38.     The Warrwa boundary goes up to the west side of the Napier Range. Ngarinyin and Bunuba country is on the east side of Napier Range. East of Napier Range was never mentioned as being Warrwa country when I was growing up on Meda Station.

51    Wombarella Creek is located in the Part D area. Imintji is further to the east of the Part D area.

52    In his oral testimony, Mr May stated that Tunnel Creek and Windjana Gorge are not part of Warrwa country “[b]ecause it’s out, too far” (at T372.43).

53    Mr Ah Choo prepared a witness statement dated 6 November 2019 which was tendered during the preservation evidence hearing (exhibit W1). Mr Ah Choo is a member of the Warrwa claim group. Mr Ah Choo’s father was Bobby Ah Choo who, as noted earlier, is one of the apical ancestors from whom the Warrwa native title claim group is descended. Mr Ah Choo’s brother was Willie Lennard, Barry Lennard’s father (and, therefore, Mr Ah Choo is Barry Lennard’s uncle). Mr Ah Choo worked on Meda station with his brothers, Willie and Con Lennard, and with other Warrwa people including Frank Dudangarri (statement at [56]). Mr Ah Choo’s witness statement described his knowledge of Warrwa country. Relevantly, Mr Ah Choo stated that “from Windjana Gorge is Bunuba country” (statement at [99]). In his oral testimony, Mr Ah Choo was asked if he knew which language group Windjana Gorge belongs to, and he replied “Bunuba but mainly Unggumi” (T249.18). Mr Ah Choo was also asked if he knew which language group Tunnel Creek belongs to, and he replied “Bunuba” (T249.30), while also noting that “half the place was Unggumi” (T249.35).

54    The evidence of Mr May and Mr Ah Choo contradicts the evidence of Barry and Nathan Lennard with respect to the Part D area and supports a conclusion that the Part D area is not Warrwa country.

Does the applicant have reasonable prospects of prosecuting the Part D claim?

55    The applications constituting the Part D claim have been on foot for more than 10 years. In that time, almost no progress has been made in prosecuting the Part D claim. It can be accepted that, in years gone by, the applicant progressed its claim in respect of other areas, and did so successfully. However, some field-based research was conducted in respect of the Part D area in 2018 and, since that time, the Court has endeavoured to progress the claim with timetabling orders. Despite the efforts of the Court, the claim has not progressed.

56    During the period of 2018 to 2022, the applicant discussed the prospect of reaching agreement with the Ngarinyin people and the Bunuba people for joint recognition of native title rights and interests in respect of the Part D area. Those discussions failed to produce any agreement. In July 2020, the BDAC advised the KLC that Bunuba people assert native title rights and interests in the Part D area. In January 2022, the WAC formally advised the Warrwa applicant that Ngarinyin people assert native title rights and interests in the Part D area and that WAC would not support a Warrwa native title claim in respect of the Part D area. Following a meeting on 23 August 2023, the BDAC formally advised the Warrwa applicant that BDAC intended to lodge a separate native title claim over the Part D area and that its position was that Warrwa people did not have rights and interests in the area.

57    At a case management hearing on 12 September 2023, the Court informed the applicant that it would require them to propose a timetable for progressing the Part D claim to a hearing, failing which the Court would need to consider whether the claim should be summarily dismissed.

58    The applicant has not filed any historical or anthropological evidence in support of its claim in respect of the Part D area. In October 2023, the applicant provided the State with the affidavit of Mr Nathan Lennard affirmed 12 October 2023. The applicant informed the State that it did not anticipate being in a position to provide any further evidence in support of the Warrwa people’s claim to the Part D area. That position was subsequently confirmed by the applicant at the case management hearing on 14 November 2023. The applicant informed the Court that it did not anticipate being in a position to provide any additional evidence in respect of the Part D area, and the applicant was unable to propose any programming orders in order to progress it.

59    The position has been reached where the only evidence that the applicant is able to rely on in support of the Part D claim is the Court’s determination in Carter and the evidence about two claimed boundary markers for Warrwa country, the first being near Inglis Gap and the second being near Tunnel Creek, given by Barry Lennard at the preservation evidence hearing and in Nathan Lennard’s more recent affidavit. In my view, that evidence is wholly insufficient to support a determination of native title in favour of the Warrwa people in respect of the Part D area; that is, reading the evidence given by Barry Lennard and his son Nathan Lennard about the two claimed boundary markers for Warrwa country with the Court’s determination in Carter, the evidence is incapable of establishing that the Warrwa people hold native title rights and interests in the Part D area on the balance of probabilities.

60    The evidence of Barry and Nathan Lennard concerning the two claimed boundary markers has a number of weaknesses.

61    First, in relation to the claimed Ngarinyin boundary marker (at Inglis gap), Barry Lennard gave evidence that he was told about the boundary marker by old Ngarinyin people. Nathan Lennard’s evidence supported his father’s evidence in that respect. Neither Barry nor Nathan Lennard gave evidence that they learned this knowledge from Warrwa people. Significantly, the Warrwa applicant is unable to adduce any evidence in support of this claim from Ngarinyin people, and has informed the Court that the WAC, which represents the interests of Ngarinyin people, contests the Warrwa claim to hold native title in the Part D area.

62    Second, the evidence of Barry and Nathan Lennard in respect of the claimed Ngarinyin boundary marker is contradicted by another witness who has given evidence in this proceeding on behalf of the Warrwa applicant, Tommy May (now deceased). Mr May said that the Warrwa boundary goes up to the west side of the Napier Range and that Ngarinyin and Bunuba country is on the east side of Napier Range. Mr May also said that east of Napier Range was never mentioned as being Warrwa country when he was growing up on Meda Station. Mr May’s knowledge was acquired from Barry Lennard’s father, Willie Lennard, and from his uncle, Con Lennard, and from another “old Warrwa man”, Frank Dudangarri. Thus, Mr May’s knowledge was acquired from Warrwa people, in contrast to Barry and Nathan Lennard.

63    Third, in relation to the claimed Bunuba boundary marker near Tunnel Creek, Barry Lennard gave evidence that he was told about the boundary marker by “old Bunuba people”. Nathan Lennard gave evidence that he was told about the boundary marker by a Bunuba man called William Leopold (now deceased). As for the claimed Ngarinyin boundary marker, neither Barry nor Nathan Lennard gave evidence that they learned their knowledge about the claimed Bunuba boundary marker from Warrwa people. Furthermore, the Warrwa applicant is unable to adduce any evidence in support of this claim from Bunuba people, and has informed the Court that the BDAC, which represents the interests of Bunuba people, contests the Warrwa claim to hold native title in the Part D area.

64    Fourth, neither Barry nor Nathan Lennard have ever seen the claimed Bunuba boundary marker near Tunnel Creek. Barry Lennard said in oral testimony that “it’s never been found”. Nathan Lennard’s evidence is based on a single conversation he had as an 18 year old with Mr Leopold in 1994, during which he pointed out the boundary marker from a distance. Nathan Lennard was not taken to see the marker. When he tried to find the boundary marker in October 2023, nearly 30 years after being taken there when young, he had doubts about the location because he was unable to identify some of the physical features of the landscape that he said he had remembered from 1994. As submitted by the State, there is no direct evidence that the handprint paintings are in fact at a location claimed by Barry or Nathan Lennard.

65    Fifth, the evidence of Barry and Nathan Lennard in respect of the claimed Bunuba boundary marker is contradicted by two other witnesses who have given evidence in this proceeding on behalf of the Warrwa applicant, Mr May and Henry Ah Choo. Mr May’s evidence has already been referred to, and is that the Warrwa boundary goes up to the west side of the Napier Range and that Ngarinyin and Bunuba country is on the east side of Napier Range. Mr Ah Choo’s evidence is that “from Windjana Gorge is Bunuba country” and that Tunnel Creek belongs to the Bunuba language group.

66    Sixth, the evidence of Barry and Nathan Lennard in respect of the claimed Bunuba boundary marker is inconsistent with one of the Bunuba determinations of native title (being either Wurrunmurra v State of Western Australia [2012] FCA 1399 or Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 1481, depending upon the precise location of the claimed marker). As submitted by the State, the relevant Bunuba determination is to be taken to have established conclusively that the Bunuba people hold native title rights and interests, as described in the determinations, with respect to the determination area, so that the Court will not accord any weight to evidence which is directly inconsistent with those determined facts: see Starkey v South Australia (2018) 261 FCR 183 at [204] (Reeves J, White J agreeing).

67    Taking the evidence of Barry and Nathan Lennard at its highest, it does not rise very high at all. It is confined to evidence of two claimed boundary markers, which evidence has numerous weaknesses as set out above. Given those weaknesses, the evidence is incapable of establishing the fact of the claimed boundaries on the balance of probabilities.

68    Even more significantly, however, the evidence falls far short of establishing facts capable of supporting a determination of native title in respect of the Part D area. It is necessary for the Warrwa applicant to establish that, under their traditional law acknowledged and their traditional customs observed, the Warrwa people have rights and interests in the Part D area and, by those laws and customs, have a connection with the Part D area. The Warrwa applicant has not adduced any evidence capable of supporting such findings. As noted earlier, the Warrwa applicant’s reliance on the decision in Carter does not overcome that deficiency. While the findings in Carter have general relevance to the Part D claim, it is necessary for the Warrwa applicant to demonstrate that the Warrwa people have rights and interests in the Part D area and have a connection with the Part D area: Bodney at [179] (Finn, Sundberg and Mansfield JJ). That cannot be established by the findings in Carter which concerned the Part A determination area.

69    The joint submissions of the parties in Carter, adopted by Banks-Smith J in her Honour’s reasons at [46] (and reproduced earlier), may be contrasted with the evidence that the applicant has been able to present in respect of the Part D area. That is not to suggest that the applicant is required on this application to adduce evidence of the same nature and extent as described in Carter at [46]. Rather, it is to highlight the absence on this application of any evidence having material weight in support of the applicant’s claim in respect of the Part D area. As submitted by the State, on this application there is no evidence:

(a)    that the Warrwa claimants’ apical ancestors were in occupation of the Part D area at sovereignty;

(b)    that the Warrwa claimants and/or their forebears have ever lived on, accessed, or utilised the resources in, the Part D area;

(c)    of spiritual imbuement to country in the Part D area;

(d)    of who the “right” families are who speak for country in and around the Part D area;

(e)    of any Warrwa people believing in mythical creatures being present in the landscape in the Part D area; and

(f)    of Warrwa people’s knowledge of important sites (other than the claimed boundary markers), songs or ceremony for country, or of ceremonial responsibility for sacred sites, or of any Warrwa people’s obligation to care for country within the Part D area.

70    This is not a case where the evidence before the Court is preliminary or incomplete and the Court is required to assess the substance of the native title claim having regard to the material both available and likely to be adduced (cf Budby at [10] (Mansfield and Jagot JJ)). In this case, the applicant has candidly and appropriately disclosed to the Court that it has filed all of the evidence it will be able to adduce in support of the Part D claim.

71    In the present case, I am satisfied that the applicant has no reasonable prospect of successfully prosecuting the Part D claim and that the Part D claim ought to be dismissed under s 31A of the FCA Act.

72    In the course of preparing these reasons, I have given consideration to the question whether it would be more appropriate to dismiss the proceeding under r 5.23 of the Federal Court Rules on the basis that the applicant is unable to prosecute the proceeding with due diligence. The application in respect of the Part D area has been on foot for more than a decade without any significant steps being taken to prosecute it. Successive case management timetables have not resulted in any progress and, at the most recent case management hearing, the applicant could not propose a timetable to bring the matter to trial.

73    As has been candidly disclosed to the Court, however, the applicant is unable to progress the Part D claim any further because it has adduced the totality of the evidence available to it in support of the claim. This is not a case in which there has been a lack of diligence in progressing the matter. There is nothing to progress beyond the evidence that is already before the Court. In those circumstances, the more appropriate course is to dismiss the Part D claim under s 31A of the FCA Act. I record, though, that if I had not dismissed the proceeding under s 31A, I would have dismissed the Part D claim under r 5.23. The Part D claim is not progressing to trial and the applicant is not seeking to bring it to trial. I would not have permitted the claim to remain indefinitely in a stagnant state.

Conclusion

74    In conclusion, the Court will order that the Warrwa Combined Application be dismissed in so far as it concerns the land and waters the subject of Part D of the proceeding, being the area described in Annexure 2, and shown with blue hatching in the map at Annexure 3, to the orders dated 11 September 2023. There will be no orders as to costs.

Associate:    

Dated:    8 March 2024

Annexure

SCHEDULE OF PARTIES