Bodney v State of Western Australia

REASONS FOR JUDGMENT WILCOX J: 1 There are before the Court notices of motion to strike out each of five native title applications made by Corrie Christopher Bodney (WAG 137 of 1998, WAG 138 of 1998, WAG 139 of 1998, WAG 140 of 1998 and WAG 149 of 1998) ('the Bodney applications'). 2 The strike out motions are made by Robert Charles Bropho, William Warrell, Gregory Lawrence Garlett, Kelvin Patrick Garlett, Richard Wilkes and Albert Corunna ('the applicants'). The applicants are also applicants in two native title claims which are commonly called 'the Combined Metro applications' and which overlap with the Bodney applications. The reason for the name, no doubt, is that all the relevant sites are located within, or near, the Perth metropolitan area. Each of the applicants has been joined as a respondent to each of the Bodney applications. 3 An unusual feature of the motions is that they were filed only after the taking of considerable evidence concerning the substantive claims. This evidence was taken by Beaumont J, both in court in Perth and on country. However, by reason of ill-health, his Honour was compelled to retire from the matters. They were assigned to me, on the basis that the evidence already given would not be repeated; and that I would read and apply the evidence already given, along with such further evidence as the parties might wish to adduce. The strike out motions 4 The applicants bringing the strike out motions rely, alternatively, on two provisions: s 84C(1) of the Native Title Act 1993 (Cth) ('the Act') and Order 20 rule 2(1)(c) of the Federal Court Rules ('the Rules'). 5 Section 84C(1) of the Act relevantly provides: '(1) If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application. (2) The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1). … (4) This section does not prevent the making of any other application to strike out the main application.' (Original highlighting) 6 Order 20 rule 2 of the Rules reads: '(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding - … (c) the proceeding is an abuse of the process of the Court, the Courtmay order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.' 7 Subrule (2) permits the Court to receive evidence on the hearing of an application for an order under subrule (1). 8 Although the applicants put their motions on two alternative bases, they rely in each case on the contention that the Bodney applications fail to comply with requirements of s 61 of the Act. 9 Some of the Bodney applications were made under the Act as originally enacted ('the old Act'). Some were made under the Act as amended on 30 September 1998 ('the new Act'). The parties accept that, in considering whether a particular Bodney application complies with s 61 of the Act, it is prima facie necessary to have regard to the form of s 61 as at the date of the relevant application; subject, however, to the qualification that, if an old Act application has been amended after commencement of the new Act, s 61 of the new Act applies. This acceptance is consistent with the conclusion of O'Loughlin J in Quall v Risk ('Quall') [2001] FCA 378 at para 65. Quall was followed by Mansfield J in Dieri People v South Australia [2003] FCA 187 at para 18. 10 Both in its original and amended form, s 61(1) of the Act has contained a table setting out the persons who may make an application for determination of native title; before 1998, to the Native Title Registrar; since 1998, to this Court. Before 1998, the relevant persons were: '(1) A person or persons claiming to hold the native title either alone or with others; or (2) A person who holds an interest in relation to the whole of the area in relation to which the determination is sought; or (3) The Commonwealth Minister; or (4) The State Minister or the Territory Minister, if the determination is sought in relation to an area wholly within the jurisdictional limits of the State or Territory concerned.' 11 Section 61(3) of the old Act read: 'An application made by a person or persons claiming to hold native title, or to be entitled to compensation, with others must describe or otherwise identify those others. In doing so, it is not necessary to name them or to say how many there are.' 12 Since 1998, the s 61(1) table has identified the following persons: '(1) A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or (2) A person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought; or (3) The Commonwealth Minister; or (4) The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned.' (Original highlighting) 13 Note 2 to this table mentions that s 251B 'states what it means for a person or persons to be authorised by all the persons in the native title claim group'. Section 251B reads as follows: 'For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorisea person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind - the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process - the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.' (Original highlighting) 14 It is necessary also to mention subss (2) and (4) of s 61 of the new Act. Those subsections read: '(2) In the case of: (a) a native title determination application made by a person or persons authorised to make the application by a native title claim group; or (b) a compensation application made by a person or persons authorised to make the application by a compensation claim group; the following apply: (c) the person is, or the persons are jointly, the applicant; and (d) none of the other members of the native title claim group or compensation claim group is the applicant. … (4) A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must: (a) name the persons; or (b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.' (Original highlighting) 15 All five of the Bodney applications for determination were filed before 30 September 1998, but two of them have been amended since that date. As a consequence, it is necessary for me to consider the position under both the old Act and the new Act. The old Act applications (i) The applications 16 The old Act form of s 61 is relevant to Bodney applications WAG 138 of 1996 (Wanneroo Road), WAG 139 of 1998 (Burswood Island) and WAG 140 of 1998 (Swanbourne). (ii) Wanneroo Road 17 The application filed in respect of the Wanneroo Road land identifies Mr Bodney as sole claimant. The application states that the persons who hold native title are 'Ballaruk People - Bodney Family Group'. At a later point in the application, it is stated: 'We are the living descendant [sic] of the Ballaruk peoples the prior owners of this land the Whadjuck Territorial boundary … before colonization … The Native Title rights and interests to be held by the Ballaruks people, pursuant to their traditional lands and waters, confer and continue to confer, possession, occupation, use and enjoyment of the land and access to the land and waters'. The application contained no explanation of the description 'Bodney Family Group'. 18 The application has never been amended. 19 It will be recalled that s 61(3) of the old Act required that an application made by a person or persons claiming to hold native title with others 'must describe or otherwise identify those others'. The Wanneroo Road application constitutes a claim by Mr Bodney that he holds native title with others, whom he identifies only as 'Ballaruk People - Bodney Family Group'. It may be inferred from later statements in the application that Mr Bodney is asserting that the persons who held native title to the land at the date of sovereignty, presumably 1829, were the Ballaruk People. But it is clear that he is not claiming native title on behalf of the Ballaruk People as a whole, but only on behalf of that portion of the Ballaruk People who are within the 'Bodney Family Group'. The difficulty is that Mr Bodney does not provide any meaningful description or identification of the people who fall within the group. The concept of family is a nebulous one; how far is the network of relationships intended to extend in this case? Mr Bodney does not say. His application does not comply with s 61(3) of the old Act. (iii) Burswood Island 20 The situation in relation to this application is similar to that concerning Wanneroo Road, the only difference being that the claimed land was described as Joobaitch land. Once again, the claimant is Mr Bodney and the relevant native title group is given as 'Ballaruk People - Bodney Family Group', without further explanation. This application, also, fails to comply with s 61(3) of the old Act. (iii) Swanbourne 21 Once again, the application identifies Mr Bodney as sole claimant, this time on behalf of 'Ballaruk Family Group'. This is an uninformative description. It does not meet the requirements of the old Act form of s 61(3). The new Act applications (i) The applications 22 Applications WAG 137 of 1998 (Hartfield Park) and WAG 149 of 1998 (the main claim) have both been amended since 30 September 1998. Consequently, the rule stated in Quall requires that the question concerning compliance with s 61 of the Act be determined by reference to the terms of the new Act.