Edward Landers v State of South Australia

INTRODUCTION 1 This motion of 28 October 2002 is to dismiss the native title determination application of The Edward Landers Dieri People (the Edward Landers application) under s 84C(1) of the Native Title Act 1993 (Cth) (the NT Act) and alternatively under O 20 r 2(1)(a) of the Federal Court Rules. I shall call the applicants in the Edward Landers' application "the Edward Landers group". 2 Section 84C of the Act was introduced as part of the extensive amendments to the NT Act through the Native Title Amendment Act 1998 (Cth) (the amending Act). It came into effect on 27 July 1998. Section 84C(1) provides: "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." A note to this sub-section provides the main application may still be amended even after a strike out application is filed. Section 84C(2) obliges the Court to consider the application made under s 84C(1) before further proceedings take place in relation to the main application. 3 The transitional provisions in Part 5 of Sch 5 of the amending Act, in particular cl 21, provide: "Section 84C of the new Act applies where the main application mentioned in that section was made either before or after the commencement of that section. If the main application was made before the commencement, the reference in that section to section 61 or section 62 is a reference to section 61 or section 62 of the old Act." Clause 31 of Part 9 of Sch 5 to the amending Act defines the "old Act" to mean the NT Act as in force immediately before the commencement of the amending Act and the "new Act" to mean the NT Act as amended by the amending Act. I shall adopt that description of the old Act, and shall continue to call the NT Act as then amended the NT Act. 4 I consider that resolution of the present motion is to be determined by reference to the present provisions of s 61 of the NT Act. In essence, that is because the Edward Landers application was significantly amended on 7 September 1999, after the commencement of the 1998 amendments to the NT Act. Counsel for the State of South Australia put that position to the Court. 5 If a native title determination application has been amended after the 1998 amendments have come into force, it has been held the compliance of the native title determination application as amended is then to be assessed by reference to the amended requirements of the NT Act: see per O'Loughlin J in Quall v Risk [2001] FCA 378 at [65]. That view is consistent with decisions requiring amendments to a native title determination application made after the amending Act to comply with the NT Act: Daniel for the Ngalama People v Western Australia [1999] FCA 686 per Nicholson J; Eora People - Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 at [22] per Madgwick J; Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 at [11] per Hely J. It is also consistent with s 66B of the NT Act. It was introduced by the amending Act. It provides for the replacement of applicants in native title determination applications having regard to the authorisation prescribed by s 251B, whether or not the native title determination application was made before or after the amending Act: Daniel v Western Australia [2002] FCA 1147 (Daniel); Holborow v State of Western Australia [2002] FCA 1428. 6 Senior counsel for the Edward Landers group did not contend to the contrary, or that the decisions to which I was referred on the point should not be followed or were distinguishable. 7 Whichever power is relied upon on the motion, it is accepted that the principles applicable to consideration of a summary dismissal application should be applied. The Court should only dismiss the application if the case for its dismissal is very clear: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130. Consequently, the power summarily to dismiss an application should be exercised only where the claim as expressed is untenable, and upon the version of the evidence favourable to the applicant. The Court should not, upon such an application, generally undertake any weighing of conflicting evidence or of the inferences which might be drawn from such evidence: Webster v Lampard (1993) 177 CLR 598 at 602-603. 8 The applicants on the motion are sometimes called the Dieri Mitha People. In the names of Raelene Warren and others, they have themselves applied for a determination of native title under the NT Act in matter SG 66 of 1998 (the Dieri Mitha application) in respect of an area of land which is somewhat larger than, and encompasses, the claim area in the Edward Landers' application. I shall call the applicants in the Dieri Mitha application "the Dieri Mitha group". The Dieri Mitha group are parties to the Edward Landers' application. 9 In the Dieri Mitha application, the Edward Landers group became a party. It applied to summarily dismiss the Dieri Mitha application. Judgment on that motion is to be delivered immediately after this judgment. As will appear, the motion has been successful and the Dieri Mitha application is to be dismissed. 10 The Dieri Mitha motion in this matter is upon the basis that the Edward Landers application does not comply with s 61 of the NT Act, and that the Edward Landers' application has not been authorised to be brought by the Edward Landers group in accordance with s 251B of the NT Act. 11 It is necessary to note firstly that both the Edward Landers group and the Dieri Mitha group assert, and acknowledge, that their respective applications for determination of native title were authorised by and are made on behalf of the same native title claim group. The native title claim group is the Dieri People. The solicitor for the Edward Landers' group deposes to the Edward Landers' application being on behalf of all Dieri People. The evidence adduced on the motion in each application confirms that, possibly subject to some presently irrelevant marginal issues, the same apical ancestors are the foundation for identifying the Dieri People. In this matter, the Edward Landers group acknowledges through senior counsel that most (if not all) of the Dieri Mitha group and the persons nominated as persons on whose behalf the Dieri Mitha application is brought are within the Dieri People. One of the contentions in the Edward Landers group attack upon the Dieri Mitha application is that the Dieri Mitha claim group are but a subgroup of the Dieri People, so the Dieri Mitha application as expressed could not possibly succeed. 12 The issue as between the two groups, once they each acknowledged that their respective applications are on behalf of the native title claim group constituting the Dieri People, might be seen to be which of the claimant groups is in fact the authorised native title applicants under s 251B of the NT Act. It is regrettable that such an issue could not be addressed and resolved so that the Dieri People, as the native title claim group, should be able to press ahead with an application for determination of native title without the distraction of issues such as the present. That is not, however, a course which has been adopted. The Court must therefore address the present motion. 13 The Edward Landers application was first filed with the National Native Title Tribunal on 21 August 1997. It was then over a much more extensive area than its present claim area, and was expressed to be on behalf of the Dieri and Yandruwandha Peoples. At some point, the Dieri People and the Yandruwandha People agreed to go their separate ways. The Edward Landers' application now reflects the implementation of the arrangement between them. The claim area was substantially reduced. The present applicants as the Edward Landers group were substituted. A process of authorisation was undertaken, apparently to comply with s 251B of the Act for the Edward Landers group as the present applicants to be substituted as, and to maintain, the Edward Landers' application (as proposed to be amended). Leave to amend the Edward Landers application in the terms proposed was given on 7 September 1999. 14 The Edward Landers' application then was in the form required by s 61 of the NT Act as introduced by the amending Act, and it purported to meet the then requirements of the NT Act. Those requirements, at least for the purpose of registration under Pt 7 of the NT Act, included the certification of the native title representative body, in this instance the Native Title Unit of the Aboriginal Legal Rights Movement (the ALRM). The certification was given on 8 July 1999 under s 202(4)(d) of the NT Act as in force at that time. (Part 11 of the NT Act including s 202 was repealed and replaced by the amending Act, but the amendment affecting s 202 did not come into operation until 1 September 2000. The substantive effect of the former s 202(4) is now contained in s 203BE). The Edward Landers' application as amended was accepted for registration by the Native Title Registrar under s 190A of the NT Act on 2 November 1999.