Federal Court of Australia

Keating on Behalf of the Wallara People, Clan of the Koko-Muluridji v State of Queensland [2024] FCA 1044

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 190F(6) of the Native Title Act 1993 (Cth) the Wallara People, clan of the Koko-Muluridji native title determination application (QUD224/2021) proceeding be dismissed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    There is a history of litigation in this Court involving Ms Ann-Marie Keating, on behalf of the Wallara People, Clan of the Koko-Muluridgi (Wallara People), and the State of Queensland and others, in respect of a native title claim made by Ms Keating on behalf of the Wallara People. On 7 July 2021 Ms Keating filed a native title determination application on behalf of the Wallara People (Keating application). On 25 August 2021 a delegate of a Registrar of the National Native Title Tribunal (Native Title Tribunal) refused to accept the Keating application for registration. On 14 December 2021 on reconsideration of the delegate’s decision pursuant to s 190E of the Native Title Act 1993 (Cth) (Native Title Act), Member Helen Shurven on behalf of the Native Title Tribunal refused registration of the Keating application because it did not satisfy all of the conditions required by sections 190B to 190C of the Native Title Act.

2    On 1 March 2023 in Keating v Native Title Registrar [2023] FCA 137 I dismissed an application by Ms Keating for review of the Member’s decision.

3    Now before the Court is an interlocutory application filed on 15 June 2023 by one of the respondents, North Queensland Land Council (NQLC), seeking the following orders:

1.     Pursuant to section 190F(6) of the Native Title Act 1993 (Cth) the Wallara People, clan of the Koko-Muluridji native title determination application (QUD224/2021) proceeding (the proceeding) be dismissed.

2.     In the alternative, pursuant to section 31A(2) of the Federal Court of Australia Act 1976 (Cth) and rule 26.01 of the Federal Court Rules 2011 (Cth) the proceeding be summarily dismissed on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding and on the basis that the proceeding is an abuse of process of the Court.

3.     In the alternative, pursuant to section 84C(1) of the Native Title Act 1993 (Cth) the application be struck out on the basis it does not comply with section 61 of the Native Title Act 1993 (Cth).

4.     Such other order as the Court deems fit.

SUBMISSIONS OF THE PARTIES

4    At the hearing of the interlocutory application there were appearances by Ms Keating in person, and separate Counsel for NQLC and the State of Queensland. Although Ms Keating did not file written submissions, Ms Keating had filed affidavits on 3 October 2023 and 18 January 2024 in which she had set out material on which she relied.

5    In summary NQLC, as moving party on the interlocutory application, submitted:

    On 28 April 2023 Ms Susan Walsh of NQLC wrote to Ms Keating indicating NQLC’s view that the Keating application was not capable of being amended in a way that would lead to a different outcome if it was again considered for registration by the Native Title Registrar. This was because, in the view of NQLC, Ms Keating’s application was made only on behalf of the descendants of Mick Sheppard, and that as it purported to represent only one family group sharing descent from a single person, it could never satisfy the registration test.

    As at 15 June 2023 when the interlocutory application was filed, no amendments had been made to the Keating application, no appeal had been filed in respect of my orders in Keating v Native Title Registrar [2023] FCA 137, and the Keating application had not been accepted for registration by the Native Title Tribunal.

    It was apparent that Ms Keating had no desire nor willingness to amend the Keating application in order to rectify the defects in the application.

    Both the delegate and the Member in the Native Title Tribunal found that conditions in s 190B of the Native Title Act were not met.

    For the purposes of s 190F(5)(b) of the Native Title Act, all avenues for review had been exhausted.

    Although the defect for the purposes of s 190B(2) might be capable of rectification, it was clear that Ms Keating did not intend to make any amendments, notwithstanding that Ms Keating had resources and capability to do so, and opportunities were available for her to do so. Accordingly, the Keating application should be dismissed.

    Alternatively the Keating application should be summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2012 on the basis that Ms Keating had no reasonable prospect of successfully prosecuting the proceeding and the proceeding was an abuse of the process of the Court.

    In the further alternative, the Keating application should be struck out pursuant to s 84C(1) of the Native Title Act on the basis that it did not comply with s 61 of the Native Title Act, and was fatally flawed.

6    NQLC relied in particular on the affidavit of Mr Ashley Jan affirmed 15 June 2023.

7    In summary, Ms Keating submitted:

    Although the Native Title Tribunal had refused registration of the Keating application, Ms Keating was the holder of cultural knowledge and traditions of the Djabugay People, and still had her cultural rights.

    Ms Keating was not properly served with the interlocutory application, and did not have an opportunity to present her case.

    The interlocutory application should be dismissed.

    Ms Keating wished her daughter, Ms Gullara McInnes, to speak on her behalf at the hearing.

    The Djabugay People had not shown that the Mareeba area was theirs – rather they had only shown that there was a blood connection.

    Ms Keating was at a disadvantage because she was not legally represented.

    Ms Keating did not know that she could return to the Native Title Tribunal pursuant to s 190F of the Native Title Act with an amendment to the Keating application.

    Ms Keating has supplied more than enough cultural information to substantiate her claim that the relevant area was her tribal area.

    Ms Keating had diligently represented her family and tribal group.

    Ms Keating was a direct descendant of Mick Sheppard, whose son was William Sheppard. Anthropological reports nominating her great grandfather as Tjabukai were incorrect.

    In the Muluridji #3 Claim Group Description, Mick Sheppard’s stepchildren Johnny, May, Stanley and Ronnie were erroneously expelled from her clan group and tribe in 2015. Her grandmother, Mable Green Sheppard, was incorrectly named as Millie, which Ms Keating had unsuccessfully challenged.

    Asserting the rights of Ms Keating’s family and extended families, mediation and inclusion in the Cairns Regional Claim was not merely a possibility but a rightful demand.

    Ms Keating had produced extensive cultural material which served as irrefutable evidence.

    Connection to country for her was not a matter of interpretation but an invincible truth

8    The State of Queensland supported the orders sought by NQLC, on the basis that, in summary:

    The Keating application should be dismissed under s 190F of the Native Title Act because:

•    the criteria in s 190F(5) of the NTA for dismissal under s 190F(6) had been met;

•    Ms Keating bore a practical onus of putting evidence before the Court to show how the Keating application could be amended to lead to a different outcome on a reconsideration, or that there was some other reason why the application should not be dismissed, and Ms Keating had not provided that evidence; and

•    in the absence of that evidence, the Court could be satisfied of the matters in s 190F(6)(a) and (b) of the Native Title Act.

    Alternatively, the Keating application should be summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act and r 26.01 of the Federal Court Rules because it has no reasonable prospect of success.

    Further in the alternative, the Keating application had not been authorised by the appropriate native title claim group, did not comply with s 61 of the Native Title Act, and should be struck out.

CONSIDERATION

Service of interlocutory application

9    In her affidavit filed 3 October 2023 Ms Keating gave evidence that she had not received the interlocutory application filed on 15 June 2023 by NQLC. However, in his affidavit filed on 20 October 2023, Mr Ashley Jan, a solicitor with NQLC, relevantly deposed:

5.    On 4 July 2023 a case management hearing was held before Registrar Grant where it was stated that the records kept by the Court Registry did not reflect the Form 1 filed by the Applicant, and the Applicant stated that she had not received service of the interlocutory application and supporting affidavit. At this case management hearing, directions were set for the hearing of the application on the basis that NQLC re-serve the documents on the Applicant at [redacted email address].

6.    Annexed to this affidavit and marked “AJ8” is a copy of an email I sent to the Applicant on 4 July 2023 at the email address for service in the Form 1, [redacted email address] as suggested by Registrar Grant at the case management hearing on 4 July 2023.

7.    Annexed to this affidavit and marked “AJ9” is a copy of an email exchange ending on 13 July 2023 between myself and the Applicant where I sought confirmation that she had received my email.

8.    I received no response to my email of 13 July 2023 asking whether my previous email had been received.

9.    Annexed to this affidavit and marked “AJ10” is a copy of an email I sent to the Applicant and all other parties dated 18 September 2023 serving NQLC’s submissions and list of authorities.

10.    …

11.    On 6 October 2023 I received an automated email from the Court Registry advising that a document had been filed on this matter. That document was the affidavit of the Applicant filed 3 October 2023.

12.    …

13.    On 10 October 2023, I spoke to the Applicant by telephone wherein she stated to me that: she had received my emails dated:

(a)    4 July 2023;

(b)    13 July 2023; and

(c)    6 October 2023.

14.    The Applicant stated during this discussion that she while she [sic] had received the emails, the emails did not have attachments to them.

15.    On 13 October I caused a copy of the following documents:

(a)    Interlocutory application and supporting affidavit filed by NQLC on 15 June 1012; and

(b)    Submissions and list of authorities filed 18 September 2023;

by prepaid registered post to the Applicant at the following postal addresses which appear on the Applicant’s Form 1 and most recent filed affidavit:

(c)    [redacted] and

(d)    [redacted]

10    Ms Christine Smith, a Legal Administration Officer with NQLC, gave evidence supporting that of Mr Jan in Ms Smith’s affidavit filed on 25 October 2023.

11    The hearing of the interlocutory application took place on 7 February 2024. At that hearing no issue was taken by Ms Keating concerning receipt by her of the interlocutory application and supporting material after 3 October 2023, or any prejudice she had suffered from earlier non- receipt of that documentation. I note further that Ms Keating had filed additional material, and was in a position to make submissions at the hearing of the interlocutory application.

12    I am satisfied that Ms Keating was able to meet the interlocutory application at the hearing before me on 7 February 2024.

13    It is appropriate for me to now turn to the merits of the interlocutory application.

Section 190F of the Native Title Act

14    The primary basis on which NQLC seeks dismissal of the Keating application is s 190F(6) of the Native Title Act. Section 190F relevantly provides:

190F If the claim cannot be registered — review by Federal Court Applicant may apply to Federal Court for review

(1)     If the Registrar gives the applicant a notice under subsection 190D(1), the applicant may apply to the Federal Court for a review of the Registrar’s decision not to accept the claim, provided the NNTT is not reconsidering the claim under section 190E at the time the application is made.

Federal Court has jurisdiction

(2)     The Court has jurisdiction to hear and determine an application made to it under subsection (1).

Court order where physical connection test failed

(3)     If, on an application under subsection (1) in a case to which subsection 190D(2) applies, the Court is satisfied that:

(a)    prima facie, at least some of the native title rights and interests claimed in the application can be established; and

(b)     at some time in his or her lifetime, at least one parent of one member of the native title claim group had a traditional physical connection with any part of the land or waters and would reasonably have been expected to have maintained that connection but for things done (other than the creation of an interest in relation to land or waters) by:

(i)     the Crown in any capacity; or

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

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

    the Court may order the Registrar to accept the claim for registration.

Opportunity to be heard

(4)     Before making an order under subsection (3), the Court must give to any person who is a party to the proceedings in the Court under Part 4 in relation to the application an opportunity to be heard in relation to the making of the order.

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

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

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

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

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

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

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

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

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

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

        have all been exhausted without the registration of the claim.

(6)     The Court may, either on the application of a party or on its own motion, dismiss the application in which the claim was made (the application in issue) if:

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

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

15    It follows that for the Keating application to be dismissed pursuant to s 190F(6), I must be satisfied of the following broad issues, namely that:

(1)    The Native Title Registrar did not accept the Keating application for registration for one of the reasons identified in s 190F(5)(a) of the Native Title Act.

(2)    The reconsideration under section 190E of the Native Title Registrar’s decision; the review under s 190F of the Native Title Registrar’s decision; the review of orders made in the determination of an application under this section; and the review of the Native Title Registrar’s decision under any other law, have all been exhausted without the registration of the claim (s 190F(5)(b) of the Native Title Act).

(3)    The Keating application has not been amended since consideration by the Native Title Registrar, is not likely to be amended in a way that would lead to a different outcome once considered by the Native Title Registrar, and there is no other reason why the Keating application should not be dismissed.

16    Section 190B of the Native Title Act sets out conditions about merits of a native title claim which are mentioned in s 190A(6)(b)(i) of that Act. In particular s 190B states that the Native Title Registrar must be satisfied that:

    the information and map contained in the application are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters (s 190B(2));

    the persons in the native title claim group are named in the application; or the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group (s 190B(3));

    the description contained in the application is sufficient to allow the native title rights and interests claimed to be readily identified (s 190B(4));

    the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion (s 190B(5));

    prima facie, at least some of the native title rights and interests claimed in the application can be established (s 190B(6));

    at least one member of the claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application, or previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for identified events (s 190B(7));

    The application and accompanying documents must not disclose, and the Native Title Registrar must not otherwise be aware, that the application should not have been made because of s 61A (s 190B(8)); and

    The application and accompanying documents must not disclose that native title has been extinguished (s 190B(9)).

17    Section 190C of the Native Title Act sets out conditions about procedural and other matters which are mentioned in s 190A(6)(b)(ii) of that Act. In particular s 190C states that the Native Title Registrar must be satisfied that:

    the application contains all details and other information, and is accompanied by any affidavit or other document, required by ss 61 and 62 (s 190C(2));

    no person included in the native title claim group for the application was a member of the native title claim group for any previous application (s 190C(3)); and

    the application has been certified by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part or the requirements in s 190C(4AA) are met (s 190C(4)).

18    I will now turn to each of the three broad issues I have identified above.

1. The Native Title Registrar did not accept the Keating application for registration for one of the reasons identified in s 190F(5)(a) of the Native Title Act

19    As I noted earlier, Ms Keating filed the Keating application on 7 July 2021. The Keating application was refused registration on 25 August 2021, and on reconsideration of the decision of the delegate, Member Shurven refused registration.

Delegate decision

20    In the decision of 25 August 2021 the delegate found as follows:

I have decided that the claim in the Wal Iara People, Clan of the Koko-Muluridji application does not satisfy all of the conditions in ss 190B-190C of the Native Title Act 1993 (Cth).

For the reasons attached, I do not accept this claim for registration pursuant to s 190A.

For the purposes of s 190D(3), my opinion is that the claim does not satisfy the conditions in ss 190B(2), (5)-(7) and ss 190((3)-(4).

(footnotes omitted)

21    In summary, the delegate found:

    The Keating application satisfied the condition of s 190C(2), because it contained all of the details and other information and documents required by ss 61 and 62;

    The Keating application did not satisfy the condition of s 190C(4) being met. In particular:

•    Schedule R to the Keating application indicated that it had not been certified, with the result that s 190C(4)(a) was not satisfied;

•    In relation to whether s 190C(4)(b) was satisfied:

(i)    Ms Keating was a member of the native title claim group;

(ii)    However there was no further information about a representative or collective body with decision-making power in the claim group, such that Ms Keating was authorised under s 251B(a) of the Native Title Act to make the application and deal with matters arising in relation to it;

(iii)    The Keating application was made by Ms Keating on behalf of the Wallara People, Clan of the Koko-Muluridji, and was referable to earlier determinations in 2011 involving the Muluridji People. The Keating application had been made on behalf of the descendants of Mick Sheppard, however there was no explanation why the descendants of the remaining apical ancestors for the Muluridji People had not been included within the claim group. This indicated that the claim group described was not a properly constituted claim group and that the application was not being made on behalf of all the holders of the particular native title claimed. This was particularly in light of the information indicating the applicant and other descendants of Mick Sheppard were members of the Muluridji People.

(iv)    The descendants of Stanley Sheppard had also been excluded, notwithstanding that Stanley Sheppard was grown up by Mick Sheppard and so took his 'country through him'.

    The Keating application did not satisfy s 190B(2) because, in summary:

•    Schedule C of the Keating application referred to the “Wallara People Map”, prepared by the Native Title Tribunal’s Geospatial Services and dated 18 June 2021.

•    The geospatial assessment concluded that the description and maps in the Keating application were not consistent and did not identify the application area with reasonable certainty. In particular it noted that the external boundary description in Schedule B did not describe or identify the excluded areas shown on the Wallara People Map.

•    It followed that the description and the map of the application area were not sufficient for it to be said with reasonable certainty that the native title rights and interests were claimed in relation to particular land or waters.

    The Keating application satisfied the conditions in s 190B(3) and s 190B(4).

    The Keating application did not satisfy the condition of s 190B(5), namely that the factual basis on which it was asserted that the native title rights and interests claimed to exist was sufficient to support the assertion, because:

•    The delegate was not satisfied that the claim group described in Schedule A, truly constituted a native title claim group; and

•    There was information before the delegate which discussed the association of the Muluridji People with parts of the area claimed, and not just the Wallara People, suggesting an association by a wider group.

    The Keating application did not satisfy the condition of s 190B(6) because the delegate was unable to be satisfied that the factual information was sufficient to support the assertions at s 190B(5).

    The Keating application did not satisfy the condition of s 190B(7) because the delegate was required to satisfied that at least one member of the native title claim group currently had or previously had a traditional physical connection with any part of the land or waters covered by the application, or previously had and would reasonably be expected to currently have a traditional physical connection with any part of the land or waters, but for certain things done. In circumstances where the delegate was unable to be satisfied the factual basis was sufficient in supporting the assertion that there existed traditional laws acknowledged by, and traditional customs observed by, the native title claim group that gave rise to the claimed native title rights and interests, the delegate could not be satisfied that at least one member of the claim group currently had or previously had a traditional physical connection with any land or waters within the application area.

    The Keating application satisfied the conditions in s 190B(8) and s 190B(9).

Reconsideration by Member Shurvan

22    The decision of the delegate was reconsidered by Member Shurvan in accordance with s 190E of the Native Title Act. In Keating v Native Title Registrar [2023] FCA 137 I summarised the decision of the Member. In particular I noted the following:

16.    The Member noted that information and evidence relevant to those considerations includes material about the predecessors of the native title claim group, the society at sovereignty, and any link between that society and the claim group today.

17.    In relation to s 190B (5)(a), there was some support that some members of the claim group, as described, had an association with parts of the geographical area described in the Wallara Claim. However, the Member found that there was insufficient material to support the claim group’s current or previous physical and/or spiritual association with all parts of the application area. The Member noted that materials provided by the applicant largely consisted of extracts of reports which appeared to be anthropological in nature, without reference to how that related specifically to the claim group for this particular matter.

18.    The Member further found that the information provided was at too high a level of generality to enable a genuine assessment of the factual basis of the Wallara Claim. The Member observed that the traditional laws and customs of a native title claim group were not cohesively outlined — rather, the general rights and interests of members of a family, in respect of hinterland and scrub areas, were claimed. The Member further considered that the composition of the native title claim group as described in the claim was provisional and did not reflect the “native title claim group” that held the common or group rights in relation to the area claimed in the Wallara Claim. In respect of this issue the Member concluded:

30.    The Wallara People application affidavit refers to the applicant being ‘authorised to make this affidavit on the Wallara Clan's (Mareeba Tribe of the Koko-Muluridji) behalf’. Various people are named in the materials as being a part of the claim group (for example Rowena Sheppard, daughter of Willie Sheppard (granddaughter Mick Sheppard); descendants of Mick Sheppard - Maureen Green, Rayleen Green, Clive Green and Allan Green; and the Fagan family). However, it is not clear why other members of the Muluridji people have been excluded (for example, Dolly Hughes and Annie Green). The delegate made detailed comments in her decision (at [66]-[78]) regarding the composition of the claim group, and I am of the same view as the delegate that the composition of the claim group indicates that the group as described in Schedule A is not the actual or the whole of the native title claim group. I conclude that potentially not all of the descendants of the ancestors named are included in the native title claim group, and that the adjacent native title claims (Djabugay-Bulway-Yirrgay-Nyakali-Guluy People and the Cairns Regional Claim Group) indicates a wider group.

19.    In relation to s190B (5)(b) the Member observed that the applicant’s references to pre-sovereignty society having laws and customs was broadly cast, and not linked clearly to the rights and interests claimed. The Member noted that while there were references in the materials to the existence of traditional laws and customs, what those traditional laws and customs were and how they are acknowledged and observed by the Wallara Claim group was not sufficiently explained.

20.    In relation to s190 (5)(c) the Member noted that the relevant task was to form a view as to the factual basis for the existence of a society at sovereignty observing identifiable laws and customs. The Member found however that no laws or customs were identified with any clarity, nor was there any clear outline of the existence of a society as at sovereignty. The Member concluded that there was a lack of material which could support a finding that the claim area of some 995 square kilometres was linked to traditional laws and customs of the claim group.

21.    Section 190B (6) provides that the Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established. The Member noted that the Wallara Claim application outlined a number of native title rights and interests as claimed, and accepted that each were capable of being a native title right and interest. However the Member concluded that because the traditional laws and customs asserted in the Wallara Claim were not sufficiently explained, the Member could not be satisfied some of the native title rights and interests claimed could be established with respect to the Wallara Claim.

22.    Section 190B (7) of the Native Title Act provides that the Registrar must be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application, or previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done by the Crown or any holder of a lease. The Member observed that if there was not a sufficient factual basis for the claimed native title, it followed that traditional physical connection also could not be established. In circumstances where the Member could not be satisfied that the native title claim group continued to hold native title rights and interests in accordance with traditional laws and customs, s 190B (7) could not be supported.

…

24.    The Member noted that the focus of the inquiry mandated by s 190C(3) was to identify if there were any common claim group members between the Wallara Claim and any previous, but still registered, application which overlapped the same land and waters. The Member noted the two native title claims on the Register. The Member was not satisfied that there were no common claim group members because:

42.    ....‘Winmai, mother of Mick Shepherd’ is described as an apical ancestor for the Djabugay-Bulway-Yirrgay-Nyakali-Guluy People claim group, and is also an apical ancestor for the Wallara People claim group. As it stands, according to Schedule A of the Wallara People application, Winmai is Mick Sheppard’s mother. I take Mick Shepherd and Mick Sheppard to be the same person, as noted at [9] above. There is nothing in the reconsideration materials which explains the duplication of Winmai, such that the issue of a common ancestor between the two native title claim groups would be resolved.

25.    The Member noted that although the applicant was prepared to remove Mick Sheppard from the Wallara Claim, as the Wallara Claim was framed Mick Sheppard was an ancestor upon which the description of the native title claim group was based. The Member concluded that, as the Wallara Claim was constructed with claimants in common with overlapping previously registered claims, this condition could not be met, and the Wallara Claim would not meet this requirement for registration.

…

27.    After examining the material, the Member was satisfied that the applicant was a member of the Wallara Claim group, however was not satisfied of the identity of the claimed native title holders and that the applicant had been authorised by all members of the native title claim group. In particular the Member observed that certain families were noted in the reconsideration application as being specifically excluded, however such inclusions and exclusions of persons from the claim group were not cogently explained. The Member could not be satisfied as to the identity of the native title holders for the Wallara Claim, and was not satisfied that there was a coincidence between the actual native title claim group and the one which has been described in the Wallara Claim.

28.    In relation to authorisation of the applicant by all other members of the claim group to make the application and to deal with matters arising in relation to it, the decision-making process for authorisation must be identified. The Member examined the materials and concluded that the information provided about the decision-making process was not sufficient to permit a conclusion as to the nature of the traditional process is, or that it has been used by members of a claim group to authorise an applicant to take actions on their behalf. The Member further observed that it was not clear, on the basis of the material, whether the decision-making process was one that was mandated by traditional laws and customs, or one that had been agreed to and adopted by the native title claim group, or whether all the people who were required to participate in the decision making process were given an opportunity to participate.

29.    Accordingly, the Member concluded that the Registrar should not accept the Wallara Claim for registration, in accordance with s 190E of the Native Title Act.

Conclusion

23    I am satisfied for the purposes of ss 190F(5) and 190F(6) that, in respect of the Keating application, the Native Title Registrar has refused to accept it for registration because the delegate at first instance, and the Member on reconsideration, found that the Keating application did not satisfy all the conditions in s 190B of the Native Title Act, or it was not possible to determine whether all of the conditions in section 190B had been satisfied because of a failure to satisfy section 190C of the Native Title Act.

2. The reconsideration under section 190E of the Native Title Registrar’s decision; the review under s 190F of the Native Title Registrar’s decision; the review of orders made in the determination of an application under this section; and the review of the Native Title Registrar’s decision under any other law, have all been exhausted without the registration of the claim (s 190F(5)(b) of the Native Title Act)

24    Review of the material before the Court plainly demonstrates that the delegate of the Native Title Tribunal refused to accept the Keating application for registration for reasons which were referable to ss 190B and 190C of the Native Title Act. Ms Keating sought reconsideration of the delegate’s decision by the Native Title Tribunal. On reconsideration of the Keating application, Member Shurvan similarly refused to accept the Keating application for registration for reasons which were referable to ss 190B and 190C of the Native Title Act.

25    As I have already noted, Ms Keating sought review of the decision of Member Shurvan in the Federal Court of Australia by application filed by Ms Keating on 21 April 2022. I heard and determined Ms Keating’s application. In Keating v Native Title Registrar [2023] FCA 137 I ordered that it be dismissed. The result of those orders was that the decision of the Native Title Tribunal refusing registration of the Keating application stood.

26    To my knowledge, to date no application for review of, or appeal against, my orders in Keating v Native Title Registrar [2023] FCA 137 has been filed.

27    No other avenue for review of the decisions of the Native Title Tribunal has been brought to my attention by the parties.

28    In the circumstances I am satisfied that all avenues for reconsideration and review to which s 190F(5)(b) refers have been exhausted without registration of the Keating application.

3. The Keating application has not been amended since consideration by the Native Title Registrar, is not likely to be amended in a way that would lead to a different outcome once considered by the Native Title Registrar, and there is no other reason why the Keating application should not be dismissed

29    It is not in dispute that, since consideration by both the delegate and the Member, the Keating application has not been amended.

30    Section 190F(6) of the Native Title Act has been the subject of consideration by this Court in numerous cases. In Martens on behalf of the Kunggandji Gurrabuna People of Kamoi (Kimoi or Kimuy) v State of Queensland [2021] FCA 1577 Charlesworth J said:

63    For the purposes of the first limb of s 190F (6)(a), the application has not been amended since it was considered by the delegate in March 2019. The remainder of the test casts a practical burden on the applicant in the sense discussed by Barker J in Sambo v State of Western Australia [2015] FCA 954:

31     The simple fact is that the relevant provisions of the NTA enable an apparently unmeritorious application – that is to say, one which has failed the registration test and in relation to which there is no pending reconsideration or judicial review – to be dismissed. The statutory provision recognises that such applications should not clog up the court system.

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

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

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

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

64     As Logan J said in Christine George & Ors on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518 (at [56]), whether a claim is likely to be amended in a way that would lead to a different outcome involves an evaluative and predictive assessment. To make that assessment, the Court must have regard to the reasons why the registration of the application has been refused, and to consider whether any proposed amendment would lead to a different outcome, ie: that it would lead to a decision to accept the claim for registration. His Honour continued:

... There must be something ... which provides a reasonable foundation for the predictive value judgment called for in s 190F (6)(a) to be made. The evidence before me did not arise above the raising of a possibility that, at some uncertain time in the future, further evidence might possibly be obtained which might, in turn, possibly generate an amendment of an unidentified kind of the application in its present form. That is a long way short of what is needed, even taking a benign view of the meaning to be given to the word ‘likely’. Further, it is quite impossible on the evidence to reach any predictive conclusion at all as to whether any amendment would lead to a different result upon reconsideration of an application so amended by the Registrar.

65     Logan J’s approach was followed by Barker J in Fazeldean on behalf of the Thalanyji People (No 2) v State of Western Australia [2012] FCA 1163 (at [66]):

... while the Court might consider the anthropological or ethnographic research material now put forward by or on behalf of the claim group, the Court should not speculate about other information that might be put forward. Thus it would not be open, in my view, for the Court to adopt a very broad proposition put on behalf of counsel for the applicants, that the Court should anticipate that additional information will be provided to the Registrar or delegate upon issues being raised by the Registrar or delegate after further consideration of an amended application. It is one thing for the Court to accept that further questions might be directed to the applicants by the Registrar or delegate upon further consideration of an amended application, but it is another to speculate about what that might be and to further speculate that the Registrar or delegate would be satisfied that registration is appropriate in light of such further material. The point is an obvious one: the claim group at this point is aware of the reasons why the application initially failed the registration test. Thus the claim group knows what sort of material it needs to put up to overcome the deficiencies earlier identified. If the applicants have information relating to those matters, then it no doubt should put that information forward at this point. In the absence of any evidence about those matters, or evidence pointing to those matters which suggest that there are indeed other items of information that might reasonably be put forward, then the Court simply would be speculating. There is a practical onus on the claim group therefore to put forward all relevant material at this point that it says would be reflected in an amended application, which amended application, in their view, would lead to a different outcome than occurred before.

31    Subsequently in Tait on behalf of the Ngarrawanji #3 Yarlil Native Title Claim Group v State of Western Australia [2022] FCA 887 Banks-Smith J said:

34.    …The meaning of 'likely' in the context of s 190F(6)(a) has been equated to a real chance rather than a mere possibility: Champion v State of Western Australia (No 2) [2011] FCA 345 at [12] (McKerracher J).

35.    In Pappin on behalf of the Muthi Muthi People v Attorney-General of New South Wales (No 3) [2018] FCA 1036, Griffiths J accepted and applied a submission to the effect that the following matters were relevant in assessing 'likelihood' (at [21]):

(a)    the reasons given for refusal of registration;

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

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

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

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

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

32    (see also Bromberg J in Dimer on behalf of the Jardu Mar People v State of Western Australia [2022] FCA 64 at [20]).

33    In the present case the reasons of the Native Title Tribunal, most recently on reconsideration by Member Shurvan but also earlier the findings of the delegate, for refusal of the registration of the Keating application, included issues referable to the identity of claimed native title holders, the constitution of the native title group, the validity of the authorisation of the claim the subject of the Keating application and the description of the native title rights and interests claimed. These issues are of critical importance to the framing of native title applications, as is plain from s 61(1) and 251B of the Native Title Act.

34    NQLC submitted that the native title of the Muluridji People was determined in Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432. This does not appear to be in dispute. The delegate and then the Member both found that the claim group the subject of the Keating application was actually a subset of the Muluridji People. As Mortimer J explained in McGlade v Native Title Registrar [2017] FCAFC 10:

363.    An application for a determination of native title must be made by a native title claim group, as that phrase is defined in s 253, read with s 61(1). Where an application is made by a person who is, or persons who are, on the evidence, only a subset or subgroup of a claim group, such an application will not comply with s 61(1) and will be struck out: see Laing v State of South Australia (No 2) [2012] FCA 980 at [18] (Mansfield J), referring also to the decision of Besanko J in Brown v State of South Australia [2009] FCA 206. This proposition emerges not only from the nature of native title rights and interests as I have set them out above, but also from the express terms of s 61(1) which speak of a person or persons authorised by “all the persons (the native title claim group) who ... hold the common or group rights and interests comprising the particular native title claimed”. It is also consistent with the requirement in the NT Act that there be only one approved determination of native title over any given area of land and waters: see ss 61A(1) and 68.

(emphasis added)

35    (see also The State of Western Australia v Sebastian [2008] FCAFC 65).

36    The Keating application confined the claim group to exclude Muluridji apical ancestors other than Mick Sheppard (who was also an apical in the Muluridji determination), also excluding for example the descendants of Stanley Sheppard who was apparently raised by Mick Sheppard and took his country through Mick Sheppard. Authorisation of a native title claim must be by all persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Harrington-Smith v State of Western Australia (No 9) [2007] FCA 31 at [1172]. Lack of authority of the claim group on the part of an alleged claimant is fatal to the purported claim: Daniel v State of Western Australia [2002] FCA 1147 at [11], Kite v State of South Australia [2007] FCA 1662 at [23], Harrington-Smith (No 9) at [1171]-[1172], Tait at [39].

37    Further, s 62(1)(b) and s 62(2) of the Native Title Act require claimant applications to contain details of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests): Jango v Northern Territory of Australia [2007] FCAFC 101 at [71], [82]. As was indicated in the decision of the delegate at [91] and of the Member at [22]-[24], geospatial assessments undertaken by the Native Title Tribunal on 14 July 2021 and 20 October 2021 concluded that the description and maps in the Keating application were inconsistent, did not identify the application area with reasonable certainty, and there was a further inconsistency concerning the description or identification of excluded areas. These findings are uncontested before me.

38    In the present case Ms Keating has evinced no intention, either in her affidavit material or in her submissions, to amend the Keating application to rectify fatal defects identified by the Native Title Tribunal. This is the case notwithstanding the passage of more than a year since the decision of Member Shurvan.

39    I note that NQLC accepts that the defect for the purposes of s 190B(2) – relating to the information and map about the area of the claim – might be capable of rectification, however NQLC further submits that all other defects in the Keating application are either not capable of rectification or could only be rectified by amendments that Ms Keating has evinced no intention of making.

40    Ms Keating has made much of the fact that she is not a lawyer. Notwithstanding this, Ms Keating has been able to construct the Keating application, and put together material for consideration by the Court. I am satisfied that Ms Keating has the capacity to understand the reasons of the Native Title Tribunal for, most recently, the refusal of the Member to accept the Keating application for registration, and to prepare material to address the issues causing the Native Title Tribunal to make that decision. I further note the evidence of Mr Jan that NQLC offered to meet with Ms Keating to discuss the future of the Keating application, however the offer was not accepted.

41    In similar circumstances in Martens, Charlesworth J observed:

69     In circumstances where there is no amendment within the applicant’s contemplation, it is not possible for the Court to identify whether any contemplated amendment (if made) would be likely to lead to a different outcome upon the amendment being considered by the Registrar against the requirements of s 190B or s 190C of the NT Act. As discussed in Fazeldean, the Court should not speculate about the amendments that might hypothetically be made or the material that might hypothetically be forthcoming that might cause the Registrar to be satisfied that the conditions for registration are fulfilled. That is especially so given the multiple deficiencies affecting the claim in its present form arising under s 190B(2) to (8) inclusive, as well as numerous procedural deficiencies identified under s 190C. The defects are not minor. In the absence of a clearly articulated foreshadowed amendment it is not at all obvious whether and how they might be cured, and it is not for the Court to speculate about the combinations and permutations of changes that could conceivably made to achieve registration.

70     That conclusion is sufficient in and of itself to satisfy the second limb in s 190F (6)(a) of the NT Act.

42    I respectfully adopt these observations of her Honour as being equally applicable to the circumstances before me.

43    The second limb of s 190F(6) concerns the question whether there is any other reason why the relevant application should not be dismissed: s 190F(6)(b). Once the provisions of s 190F(5) and 190F(6)(a) are satisfied, as observed in such cases as Sambo v State of Western Australia [2015] FCA 954 and Dimer at [35] the practical onus of demonstrating that there is a reason why the application ought not to be dismissed rests with the Native Title applicant.

44    Ms Keating’s submissions in this respect can be summarised as being her contention that she has cultural rights, knowledge and understanding she seeks to protect, that she has a connection to her country, that her interests have not been acknowledged, and that she did not know that she could return to the Native Title Tribunal to amend the Keating application.

45    I note the conviction of Ms Keating concerning rights and interests she desires to protect, however that of itself does not address the fatal flaws in the Keating application identified by the Native Title Tribunal. Further, I am not persuaded that Ms Keating was unaware that she could return to the Native Title Tribunal with an amended application rectifying defects – certainly the correspondence from Ms Susan Walsh of NQLC to Ms Keating dated 28 April 2023 (as annexed to the affidavit of Mr Ashley Jan of 15 June 2023) indicates a history of discussions between Ms Keating and NQLC where the possibility of a return to the Native Title Tribunal by Ms Keating was brought to her attention.

46    In my view, Ms Keating was unwilling to amend the Keating application in a manner which may have allowed registration by the Native Title Tribunal.

47    I am satisfied that there is no other reason why the Keating application should not be dismissed.

CONCLUSION

48    As I am satisfied that the Keating application should be dismissed pursuant to s 190F(6) of the Native Title Act, it is unnecessary for me to consider whether it should be summarily dismissed under the Federal Court Act and the Federal Court Rules, or struck out pursuant to s 84C(1) of the Native Title Act.

Associate:

Dated:    10 September 2024