Hogan v State of Western Australia

MARGARET MERLE HOGG, DONALD JOHN HOGG AND NEIL ALEXANDER HOGG (KINCLAVEN STATION)

DAVE THOMAS, GRAHAM ANDREW THOMAS AND ANTHONY WAYNE THOMAS (BALGAIR STATION)

INTRODUCTION 1 This matter was listed before me today at the Central Desert Regional directions hearing. One of the recommendations canvassed in the National Native Title Tribunal's (Tribunal) mediation report was that the order of French J (as his Honour then was) relating to the disposition of the Nullarbor claim be reconsidered. Order 2 of his Honour's orders of 29 November 2007 provided that: 2. Any motions or submissions in relation to any failure to pass the registration test to be filed and served no later than 19 May 2008. 2 To date no submissions have been filed with the Court. Mr O'Dell, who appeared on behalf of the applicants, indicated that he would not be seeking to file any submissions pursuant to French J's orders. He accepted that orders under s 190F of the Native Title Act 1993 (Cth) (the Act) would be appropriate as they were unable to take instructions. 3 I invited the other parties to make submissions on the issue of dismissal. No submissions were made and no objection was raised. On that basis I dismissed the application and indicated that I would publish reasons shortly.

STATUTORY FRAMEWORK 4 Section 190F(6) of the Act, introduced in the amendments made to the Act on 20 July 2007, confers upon the Court a discretionary power to dismiss an application, either on the application of a party or on its own motion, if: (a) the Court is satisfied that the application has not been amended since consideration by the Native Title Registrar (the Registrar) and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar, and (b) in the opinion of the Court, there is no other reason why the application in issue should not be dismissed. 5 Pursuant to s 190F(5), the new dismissal power applies where: (a) the Registrar does not accept the claim for registration because: (i) it does not satisfy all the merit conditions of the registration test; or (ii) it was so procedurally defective as to render it impossible to determine whether the claim satisfies the merit conditions; and (b) the Court is satisfied that the avenues for reconsideration and review have been exhausted without registration of the claim. 6 Order 78 r 12 of the Federal Court Rules provides an application for review must be filed within 42 days of the notification of the Registrar's decision. 7 The Explanatory Memorandum to the Native Title Act Amendment Bill 2006 provides an insight into the rationale behind the introduction of the new dismissal power: Currently, while unregistered applications do not receive certain procedural benefits that attach to registered claims (such as the right to negotiate), unregistered applications may still proceed to determination. There is presently no requirement on claimants to amend their claim to meet the requirements of the registration test. The amendments inserted by item 73 are intended to provide a greater focus on the responsibility of applicants to take steps to improve the quality of their claims, recognising that poor quality claims are a burden on the native title system. 8 If the Court considers the application has been amended since consideration by the Registrar or is likely to be amended in a way that would lead to a different outcome once considered by the Registrar, it would be appropriate for the Court to await the outcome of the reapplication of the registration test before considering whether to dismiss the application. 9 Pursuant to s 190F(6) of the Act, the Court may consider any 'other reason' why an application should not be dismissed. The Explanatory Memorandum to the Native Title Act Amendment Bill 2006 suggests that the criterion set out in s 190F(6) '... will ensure that applications are not dismissed where there is good reason for a claim remaining in the system, despite being unregistered'. 10 By way of example, the Explanatory Memorandum suggests that the Court may consider that an application should not be dismissed if, despite being unregistered, the claim is close to reaching resolution (par 4.331). 11 As to the principles applicable to how s 190F(6) should operate, I refer to and respectfully adopt, (without repeating), the analysis by Logan J in Christine George & Ors on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518.

THE APPLICATION 12 The applicants represent the Nullarbor people. The application was filed in the Federal Court on 30 September 1998. An amended application was filed on 6 August 1999 (subsequently re-filed on 3 September 1999). The application was further amended by order of the Court in terms of an amended application filed on 19 October 1999. 13 The application covers approximately 78000 square kilometres of land in the Goldfields, Great Victoria Desert and Nullarbor Plain regions of Western Australia. The application has several overlaps. 14 The applicants are represented by Central Desert Native Title Services. Prior to July 2007 they were represented by Goldfields Land and Sea Council.

First registration test 15 The Delegate of the Registrar decided not to accept the application for registration on 19 October 2001 pursuant to s 190A of the Act. The Delegate found that the application did not satisfy the following conditions: i. Subsection 190C(2) - the Delegate was not satisfied that the application contained all of the details and other information and documents required by s 61 and s 62 of the Act; ii. Subsection 190B(2) - the Delegate was not satisfied that the information and map provided by the applicants were sufficient for it to be said with reasonable certainty that native title rights and interests are claimed in relation to the areas specified; iii. Subsection 190B(5) - the Delegate did not consider that the factual basis on which it was asserted that the native title rights and interests claimed exist was sufficient to support each of the particularised assertions in s 190B(5); iv. Subsection 190B(6) - the Delegate did not consider that, prima facie, the applicants had established their connection with the claim area and found that there was an insufficient factual basis for the claimed native title rights and interests; and v. Subsection 190B(7) - the Delegate was not satisfied that at least one member of the native title claim group has a previous or current traditional physical connection with any part of the application area. Second registration test 16 Because the applicants' last amended application was made after 30 September 1998 and before 15 April 2007, and was not on the Register of Native Title Claims when the Native Title Amendment Act 2007 (Cth) commenced, the Registrar was required to reconsider the application for registration (Item 89 of the transitional provisions). The Registrar advised the applicants on 19 July 2007 that the registration test had to be applied again. The applicants replied to the Tribunal on 20 July 2007 advising that they did not wish to make any further amendments to their application. On 13 November 2007 the Nullarbor application underwent a second registration test. The Delegate decided not to accept the application for registration. The Delegate found that a number of conditions were not satisfied: i. Subsection 190C(4) - the Delegate was not satisfied that the persons named as the applicants had been authorised by the native title claim group. The Delegate found that the information relevant to authorisation was either uncertain or insufficient; ii. Subsection 190B(2) - the Delegate was not satisfied that the information and map provided by the applicants were sufficient for it to be said with reasonable certainty that native title rights and interests are claimed in relation to the areas specified; ii. Subsection 190B(5) - the Delegate did not consider that the factual basis on which it was asserted that the native title rights and interests claimed exist was sufficient to support each of the particularised assertions in s 190B(5); iii. Subsection 190B(6) - the Delegate did not consider that, prima facie, the applicants had established their connection with the claim area and found that there was an insufficient factual basis for the claimed native title rights and interests; and iv. Subsection 190B(7) - the Delegate was not satisfied that at least one member of the native title claim group has a previous or current traditional physical connection with any part of the application area. 17 The applicants have not applied to the Tribunal pursuant to s 190E(1) of the Act for reconsideration of the Delegate's decision nor have they applied to this Court pursuant to s 190F(1) of the Act for review of the decision. 18 The applicants have not sought to amend their application since consideration by the Delegate, nor have they indicated any intention to do so.

CONCLUSION 19 On the basis of the history, I am satisfied for the purposes of s 190F(6) of the Act that the application has not been amended since it was considered and rejected by the Delegate. There is no evidence or indication that the application is likely to be amended in a way that would lead to any different conclusion being reached by the Registrar. There is no other reason why the application should not be dismissed. I note that there is nothing to prevent the applicants from filing a properly constituted claim in the future. 20 The application will be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: Dated: 8 June 2009 Counsel for the Applicants: M O'Dell

Solicitor for the Applicants: Central Desert Native Title Services

Counsel for the First Respondent: A Rorrison

Solicitor for the First Respondent: State Solicitor of Western Australia

H Esbenshade of Pastoralists and Graziers Association Western Australia appeared on behalf of the Sixth Respondents