Collard v The State of Western Australia

Should the application be dismissed? 5 On 21 May 2008 the applicant filed submissions in relation to all the Collard applications currently before the Court today ('the Collard Submissions') pursuant to the Order of the Court made on 9 April 2008. 6 The effect of the Collard submissions across the applications appears to be to the effect that the Court should not dismiss them under s 190F(6) of the Native Title Act because they are likely to be withdrawn in exchange for some form of recognition by the South West Aboriginal Land and Sea Council. It is not said in what way that is to be achieved or the terms in which it might be achieved. Somehow, it is said, it would recognise the status of Mr and Mrs Collard who are the Applicants. 7 The State of Western Australia submitted that neither these nor any of the other matters referred to in the Collard submissions provide any substantive reason why the applications should not be dismissed. 8 In the Collard Submissions the Applicants state that they have not been able to obtain legal representation in preparing an amended application together with supporting evidence. It is therefore conceded that the polygon claims in these applications are unlikely to be amended in the near future. 9 The question then is whether or not, in the opinion of the Court, under subsection 190F(6)(b) of the Native Title Act there is no other reason why the application in issue should not be dismissed. 10 The Applicants submitted or pointed to negotiations having taken place to resolve the claims with the South West Aboriginal Land and Sea Council but that these are currently in abeyance. They stated, however, that the Applicants remain keen on pursuing negotiations with the South West Aboriginal Land and Sea Council aimed at securing the withdrawal of their applications on terms that properly acknowledge their status as respected Noongar elders. The Applicants point to the explanatory memorandum to the Native Title Amendment Bill 2006 which, at paragraph 4.331, it is submitted, suggests that the Court may consider that an application should not be dismissed if, despite being unregistered, it is close to reaching resolution. That is not the position in this case. 11 The Applicants advise that the land is said to include numerous sites of strong cultural significance, for example, the Hippo's Yawn, which is a sacred women's site where they gave birth. They say that a mutual respect has developed between the claim group and the mining companies with whom they have developed a consultative relationship whereby community initiatives and support are negotiated and they submit that these matters together are good reasons, inferentially under s 190F(6)(b) of the Native Title Act, why their claims should not be dismissed. None of these matters are of a kind which, in my opinion, might demonstrate another reason, in the circumstances where the criteria under s 190F(6)(a) of the Native Title Act have been satisfied, why the application should not be dismissed. In my view, the application should therefore be dismissed and I so order. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.