Hazelbane v Northern Territory of Australia

1. The interlocutory application of Thomas Petherick for the summary dismissal of this application for the determination of native title rights and interests over the Town of Batchelor is struck out. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MANSFIELD J: 1 There has been a long-standing dispute over the indigenous persons or group of persons who may properly claim to have native title rights and interests over the Town of Batchelor recognised under the Native Title Act 1993 (Cth) (NT Act). 2 At and until 21 August 2014, there were two competing claims, namely one by Gabriel Hazelbane and others on behalf of the Warai and Kungarakany Groups in matter NTD 6057 of 2001, and the other by Thomas Petherick and others on behalf of the Emu and Blue Tongue Lizard Clans in matter NTD 21 of 2005. 3 On that date, the Court made an order that the claim in matter NTD 21 of 2005 should be struck out, and it further ordered in matter NTD 6057 of 2001 that the persons presently constituting representatives of the Finniss River Brinkin Group (FRBG) (for whom Mr Petherick and others were the nominated representatives) and who had been joined as respondents to that application on 16 September 2002, be removed as parties to that application: see Hazelbane v Northern Territory of Australia [2014] FCA 886 (the Town of Batchelor judgment). The Court was satisfied that the claims of Mr Petherick and others on behalf of the Emu and Blue Tongue Lizard Clans had no realistic prospect of succeeding, and that there was no ongoing basis on which the FRBG could have a proper interest in the Town of Batchelor claim area: see the Town of Batchelor judgment at [34] and [35]. There was no appeal instituted from the orders made in either of those proceedings. 4 Nevertheless, Mr Petherick in his asserted capacity as "Elder Custodian to Sacred Sites and Rock Art Sites, Traditional owner to land" on 11 March 2015 filed an affidavit in support of an application to strike out the present applicant's claim by Mr Hazelbane and others in this matter pursuant to s 84C(1) of the NT Act. 5 Not surprisingly, the applicant responded by seeking dismissal of that application because neither Mr Petherick, nor the people he says he represents, are parties to the application and therefore have no standing to apply to strike it out. On 12 March 2015, the Court gave Mr Petherick further time to consider his position in relation to his application to strike out this claim, including a period to file and serve a written outline of submissions identifying why he has the status to make the strike out application, having regard to the orders made in the Town of Batchelor judgment, and of course giving leave to the present applicant and to the Northern Territory to file and serve any responsive submissions. 6 Mr Petherick has not taken up the opportunity to file and serve a written outline of submissions concerning his status. 7 Section 84(C)(1) of the NT Act 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. 8 Mr Petherick does not have the status of being a party to this application. Consequently, he does not have the status to apply to strike out this application. I am satisfied that his application should be dismissed. 9 Accordingly, the application of Mr Petherick to strike out this application is dismissed. 10 I note that, in the course of submissions, the Court has been told that the applicant to this application and the Northern Territory propose to resolve it by entering into an Indigenous Land Use Agreement, to be registered, and for this claim then to be discontinued. 11 It is necessary to note that on 1 April 2015, Virgil Wanirr in matter NTD 5 of 2015 filed a native title determination application on behalf of the Marri, Emu, Blue Tongue Lizard, Werak Goanna, Long Neck Turtle, Catfish, Red Kangaroo, King Brown Snake and Freshwater Crocodile clans. That group of clans had been said in the course of submissions to comprise the FRBG in the application by Mr Petherick and others in matter NTD 21 of 2005. It is unclear whether the area of land described in that application encompasses the Town of Batchelor at all. There is reason to think that it was intended to do so, having regard to the submissions of counsel for Mr Petherick and others on 12 March 2015 (where he was representing other but related applicants in other claims under the NT Act concerning areas proximate to the Town of Batchelor) foreshadowing that such a claim over the Town of Batchelor might be made. 12 Subject to the Court addressing that claim, where the Northern Territory has applied to have it summarily dismissed, there is no obstacle to the intended process to finally resolve the claim over the Town of Batchelor in the manner proposed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.