THE EVIDENCE
19 There were a number of affidavits relied upon by the first applicants in support of the strike-out application. The second applicants relied upon the material in the main application, together with two further affidavits of Thomas Edward Petherick sworn on 5 December 2006 and on 23 April 2007, the latter of which contained extensive annexures.
20 There was an objection to my receiving in evidence a small part of Thomas Petherick's affidavit of 23 April 2007 on the grounds that it was unsupported hearsay. The particular passage objected to quotes entries from a diary of his father, Ray Petherick about an alleged meeting on the morning of 10 April 2006 at Palampa, some 200 km south-west of Batchelor. The meeting allegedly involved Captain Wodidj and other members of his family in which it was agreed that the Petherick family would be responsible for the Batchelor area of the Emu Dreaming, together with the Litchfield National Park and Welltree areas, and that Captain Wodidj and his family would be responsible for the Emu Dreaming when it came south-west into Palampa. At that time, apparently, Captain Wodidj signed a document apparently constituting his affidavit filed in support of the Town of Batchelor No 2 application as amended.
21 The objection is not simply that hearsay evidence cannot be received on an application such as the present. As I have said, it is common ground that the application is an interlocutory one in respect of which hearsay evidence may be admitted by reason of s 75 of the Evidence Act 1995 (Cth): see e.g. Bodney v Bropho (2004) 140 FCR 77 at 92 [64] per Stone J. Section 75 requires evidence of the source of the hearsay material within the affidavit. It is contended that such evidence has not been given, so that that particular part of Mr Petherick's affidavit of 23 April 2007 should not be received, or alternatively that it should not be received by reason of s 135 of the Evidence Act. There is no explanation as to why Ray Petherick should not have given evidence of those facts directly. There is nothing to verify on his part the reliability of his diary, although it has considerable detail within it. However, I think it identifies the source of the information, namely Ray Petherick and there is some independent confirmation of the events to which it refers by Captain Wodidj having signed the affidavit on 10 April 2006 which was filed in support of the Town of Batchelor No 2 application as amended. It is a different question as to the weight to be given to that affidavit of Captain Wodidj generally upon the whole of the evidence.
22 I propose to receive that part of the affidavit of Mr Petherick, but I indicate that I do not think it carries much weight. There is direct evidence from Captain Wodidj as to the fact that he did not intend to authorise the bringing of the Town of Batchelor No 2 application as amended as an authorised applicant or on his behalf as an asserted member of that native title claim group, or to authorise the claim to be brought as a senior member of the Emu Clan. He plainly disavows any interest as a member of any native title claim group which may have native title rights and interests in respect of the Batchelor area. Nevertheless, there is some evidence of attempts made by Thomas Petherick through Ray Petherick to secure Captain Wodidj's agreement to being a nominated applicant for the claim group, and to indicate his preparedness to be a member of the claim group.
23 For reasons which appear below, nothing turns upon the receipt of that evidence in all the circumstances.
24 What is apparent is that the FRBG comprises at least the eight clan groups referred to in [2] above, and for many years has been seeking to have its interest in the claim area of the Town of Batchelor No 2 application, in Litchfield National Park, and in surrounding areas recognised firstly by the Aboriginal Land Rights Commissioner under the Aboriginal Land Rights (Northern Territory) Act (1976) (Cth) and, secondly, in various claims made under the Act in relation to areas in which the FRBG claims to have an interest in a number of areas, including the Bachelor area. Both the Aboriginal Land Rights Commissioner in relation to the Finniss River Land Claim 1980 and the Northern Land Council (the NLC) as the representative body responsible for the area in which the relevant claims under the Act have been made, have declined to recognise that interest. The NLC has also declined to provide financial or other support to the FRBG to pursue its claims, variously to pursue its claimed interests in the Batchelor and other areas. Consequently, but not surprisingly, the Town of Batchelor No 2 application and other documents prepared by and on behalf of the FRBG have some unsatisfactory aspects. The process of making such an application is complex and the information required is detailed. It is not surprising that the FRBG or more specifically the Petherick family, who appear to have been carrying the primary responsibility for furthering the interests of the FRBG, have not completed that process in a way which a more formal analysis and professional care might have done.
25 However, the Court's function is to determine the motion to strike out the Town of Batchelor No 2 application having regard to the principles applicable to determining an application under s 84C, and on material before it.
26 The nominated apical ancestors of the Emu Clan in the Town of Batchelor No 2 application as amended are set out in [4] and [5] above. There is clear evidence from Captain Wodidj and from several of his brothers that Captain Wodidj does not claim to be a member of the native title claim group or of any native title claim group which has native title rights and interests in the Town of Batchelor area. He and his brothers all say that they are elders of the Rak Palampa Clan or estate group, an estate area some 200 km south-west of Batchelor. That is a place where there is an Emu Dreaming. It says that membership of the Rak Palampa Clan is determined on a patrilineal descent rule, and that they each have membership of that clan with its Emu Dreaming by descent from their father Miren, also known as Chugulla. That is another name which appears as an apical ancestor of the Emu Clan in the Town of Batchelor No 2 application. Each of those men confirms that their father was a member of the Rak Palampa estate group who made claim to, and who had no, native title rights and interests in respect of the Batchelor claim area. The second named person, Mr Tjalma Tiger Jongman, is also addressed in the evidence through Ambrose Jongman, who says that that man was his grandfather, and that he and his father and his grandfather were members of the Ma Muthirr estate group in Maringar country, also well remote from the Batchelor claim area. He says that that estate group also has patrilineal descent rules, and shares the Emu Dreaming which moves into the Palampa area. Both the Wodidj deponents and Mr Jongman expressly disclaim any interest to native title rights and interests in the Batchelor claim area, and say that the Emu Dreaming which they share must be different from any Emu Dreaming in the Batchelor claim area (if there is one). Each says also that the decision-making processes of those two clans was a traditional one involving the senior elders of those clans.
27 The only direct evidence of knowledge of the third apical ancestor identified, Madntingi, is that he was otherwise known as Jack Mumbe, and that he was also a member of the Ma Muthirr estate group in Maringa country, remote from the Batchelor claim area. The fourth named apical ancestor of the Emu clan is Thullumbun. The evidence is that he is a member of the Rak Peppimenarti estate group, again remote from the Batchelor claim area, and not in respect of an area with an Emu Dreaming.
28 Mr Petherick's affidavit of 23 April 2007 does not directly dispute much of that material. He acknowledges that it was necessary to get authorisation from two sub-groups of Emu Clan members that were living at Palampa and Wadeye (Maringar country) and who had very little association with the Woolaning area (nearby to the Batchelor area) over many years. It was for that reason that he sought the approval of Captain Wodidj, and Ambrose Jongman for the purposes of the claim.
29 In my view, that is sufficient to determine the application adversely to the Town of Batchelor No 2 applicants.
30 Section 61(1) of the Act requires that each of the named and authorised applicants to the Town of Batchelor No 2 application be included in the native title claim group. Clearly, Captain Wodidj is not in the identified native title claim group. He says so, and Mr Petherick in effect acknowledges that.
31 The thrust of the material presented through Mr Petherick is that the FRBG is a separate claim group, made up of a number of clans, who claim native title rights and interests within the Batchelor area and surrounding areas. The FRBG does not claim native title rights and interests in the Palampa area in which Captain Wodidj says that his native title rights and interests exist, and which Mr Petherick acknowledges is the area in which ultimately his native title rights and interests exist, even if they are tied together by the Emu Dreaming. On the material, there is simply a contest as to whether the Emu Dreaming of Palampa is the same as such Emu Dreaming as exists in the Batchelor claim area. But I do not think that matters. Even if the Emu Dreaming is the same dreaming, it is not really disputed that the native title claim group for the Town of Batchelor No 2 claim, whether it comprises all of the FRBG clans or only the two clans (namely the Emu Clan and the Blue Tongue Lizard Clan) does not claim native title rights and interests extending beyond the Batchelor area as remotely as Palampa country or Maringar country where the Ma Muthirr estate group exists.
32 In those circumstances, I do not need to determine whether the evidence adduced on behalf of the second applicants is sufficient to overcome the quite strong evidence to which I have referred indicating that the apical ancestors identified in the Town of Batchelor No 2 application for the Emu Clan are not in fact apical ancestors for a clan within the native title claim group which claims native title rights and interests in respect of the Batchelor area. The evidence to the contrary seems to be quite strong.
33 Nor do I need to determine whether the evidence adduced by the second applicants, but in particular through Mr Petherick, is sufficient to demonstrate, in the face of quite strong evidence to the contrary, that the relevant decision-making processes to which he refers are adequate to establish authorisation in accordance with s 251B of the Act. There is, as I have noted, significant evidence that at least in respect of three of the named apical ancestors of the Emu Clan the relevant decision-making processes requires decisions in relation to land to be made in a traditional way by the men and women whose fathers and father's fathers come from the relevant country. There is also strong evidence that neither the Wodidj family or the Jongman family would expect to participate in any authorisation meeting in accordance with their traditional laws and customs involving the making of a native title determination application in respect of the Batchelor claim area, and did not do so. Such authorisation as there was, in any event, would not appear to satisfy a process of traditional decision-making to which that evidence refers. I appreciate that there is some evidence from Mr Petherick to the contrary. As I have said, I do not need to decide whether it is of sufficient strength to resist the strike-out motion, because there is in my view a clear answer in support of the application being struck out.
34 There is a second reason why, in my view, the strike out motion should succeed. There is no evidence that Thomas Petherick himself was authorised either by a traditional meeting of the members of the identified native title claim group (either the Emu Clan or the Blue Tongue Lizard Clan together or separately) to bring the application on their behalf. He certainly took an active role in assembling information and encouraging members of the FRBG to support the bringing of an application. But there is no evidence to suggest that he was authorised by all members of the native title claim group as he has described it, or as it is described in the Town of Bachelor No 2 application as one of the persons authorised to bring the application and to deal with matters in relation to it. At best, he is described in both attachments R2 and R3 to the Town of Batchelor No 2 application, as a spokesperson interpreter in the courts representing the FRBG itself, and not the two particular clans. Those documents have two other headings: Authorised Persons, and Clan Group Representative Spokespersons. He does not appear in those sections of those documents. The extensive process of consultation to which he refers does not indicate that at any particular meeting or meetings he was expressly authorised by the identified native title claim group to bring the Town of Bachelor No 2 application on its behalf or to deal with matters in relation to it. I do not think Attachment R4 to the Town of Batchelor No 2 application as amended demonstrates more than a thorough and conscientious attempt by Mr Petherick to consult as widely as he could, and as he did, with many persons who may have had an interest in the Batchelor claim area, but it does not demonstrate any traditional form of decision-making by the native title claim group itself in terms of s 61(1) of the Act in relation to him.
35 There is a third reason why, in my view, the necessary authorisation is shown not to have been given. The native title claim group as presently expressed is confined to members of the Emu Clan and the Blue Tongue Lizard Clan. However, the material presented by Mr Petherick indicates that his inquiries have been on behalf of the FRBG generally. In various parts of the extensive material to which he refers, he identifies in a collective way the various clans comprising the FRBG as the group which claims native title rights and interests in respect of the Batchelor area. Those clans extend beyond the Emu Clan and the Blue Tongue Lizard Clan. The number of the persons to whom he has spoken, as he himself records, are persons who are not members of the Emu Clan or the Blue Tongue Lizard Clan but are members of other clans such as the Cycad/Glider Possum Clan and the Werak Goanna/Pulini Clan and the King Brown Snake Clan. He asserts variously that every member of the FRBG claims to have native title rights and interests in the Batchelor claim area, with particular responsibility for particular sites.
36 In my view, on his own material, those two clans are a mere subset of the FRBG. It is therefore inappropriate that they should constitute the native title claim group: see e.g. Ward v Western Australia (1998) 159 ALR 483 at 581; Risk v National Native Title Tribunal [2000] FCA 1589 at [60]; Tilmouth v Northern Territory [2001] 109 FCR 240 at 241-242; Dieri People v South Australia (2003) 127 FCR 364 at [55]; Landers v South Australia [2003] 128 FCR 495 at 504; and Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 at [1209]-[1217].
37 It is not necessary to address the further contentions on behalf of the first applicants.
38 In my judgment, there are clear reasons why the Town of Batchelor No 2 application, as presently expressed is not capable of being maintained in its present form. I propose to strike it out. I will give the second applicants 14 days within which to apply by motion for orders which may save the application: see the discussion in [14] above. The strike out order is therefore not to be sealed for that time. I do not suggest that the second applicant should make any such application, but I think it appropriate to give them the opportunity to do so.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.