Consideration and determination
29 The objectives and principles of s 190F(6) were helpfully summarised by McKerracher J in Whalebone v State of Western Australia [2008] FCA 1678 at [1] to [8] as follows:
1 Section 190F(6) of the Native Title Act 1993 (Cth) (the NTA), introduced in the amendments made to the NTA in 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.
2 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.
3 Order 78 r 12 of the Federal Court Rules [now r 34.109] provides an application for review must be filed within 42 days of the notification of the Registrar's decision.
4 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.
5 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.
6 Pursuant to s 190F(6) of the NTA, 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.
7 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 (para 4.331).
8 As to the principles applicable to how s 190F(6) should operate, I refer to and respectfully adopt, (without repeating), the recent analysis by Logan J in Christine George & Ors on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518.
30 Following the applicant's second failure to meet the registration test on 8 February 2018, s 190F(5)(a) has been satisfied. As the applicant did not apply for reconsideration by the NNTT by the relevant deadline, and did not apply to this Court for review of the second registration decision by the relevant deadline, s 190F(5)(b) has also been satisfied. Thus, these particular preconditions for dismissal under s 190F(6) have been met.
31 As to s 190F(6)(a), the application in issue has not been amended since the delegate's decision of 8 February 2018. Nor were any specific amendments foreshadowed by the applicant. As to whether the Court can be satisfied that the application is not likely to be amended in a way that would lead to a different outcome, the Court accepts that the factors proposed by NTSCORP as summarised at [21] above are relevant factors in these proceedings. For the reasons set out at [22]-[25] above, and in the absence of any contrary evidence from by the applicant, there is not a real chance that the application will be amended in a way that would lead to a different outcome once considered by the Registrar.
32 It is also relevant to consider the delegate's reasons for refusing to register the claim. The delegate determined that the following conditions were not met in order to register the amended application:
(a) section 190B(5): the delegate was not satisfied of the factual basis for the claimed native title, specifically:
(i) section 190B(5)(a): the delegate found that there was insufficient "…information to demonstrate how the contemporary association of Muthi Muthi people has its origins in the preceding generations' association of the area", and insufficient information on "… the intervening years between sustained settlement and the mid to late 20th century" (at [68] and [71]);
(ii) section 190B(5)(b): the delegate found that there "was little evidence…about the intergenerational transmission of laws and customs" and that there "…is no discussion of the operation of the contemporary society bound by laws and customs…" (at [88] and [91]);
(iii) section 190B(5)(c): the delegate found that she was not satisfied that "…the native title claim group has continued to hold the native title in accordance with its traditional laws and customs" (at [96]).
(b) section 190B(6): the delegate was not satisfied, prima facie, that at least some of the native title rights and interests claimed could be established as the factors in s 190B(5) were not satisfied;
(c) section 190B(7)(a) or (b) : the delegate found that "…the application lacks the support of a factual basis that the native title claim group continues to acknowledge and observe its traditional laws and customs"; and
(d) section 190C(2): the delegate found that the map accompanying the application did not meet the requirements of s 62(2)(a)(i) showing the external boundaries of the area covered by the application.
33 All of the deficiencies identified above, except for the last, are deficiencies that go to the merits of the claim rather than purely procedural matters. Importantly, the delegate determined that the applicant had failed to make out a prima facie case that the native title rights and interests claimed in their application could be established. It would be futile for the Court to allow the 1 August 2017 application to proceed to a determination of native title in these circumstances. As Barker J stated in Sambo v State of Western Australia [2015] FCA 954 (Sambo) at [31]:
The simple fact is that the relevant provisions of the NTA enable an apparently unmeritorious application - that is to say, one which has failed the registration test and in relation to which there is no pending reconsideration or judicial review - to be dismissed. The statutory provision recognises that such applications should not clog up the court system.
34 The applicant has not foreshadowed any further amendments to the application to address any of the several deficiencies identified in the delegate's decision. Rather, the thrust of the applicant's submissions as to why their application should not be dismissed is that that the delegate's decision was incorrect. Those submissions attract little, if any, weight. If the applicant wished to challenge the delegate's registration decision, it was open for them to file an application for the Court to review the delegate's decision, or to make an application for the NNTT to reconsider the native title claim. As stated above, no such application was filed within the 42 day deadline prescribed by r 34.109 of the Federal Court Rules 2011 (Cth) and s 190E of the NTA respectively. Nor did the applicant seek the Court's leave to file any such application after the deadline had expired.
35 The statutory scheme is such that an applicant who believes that a decision such as that made by the delegate is wrong should exercise the available review or reconsideration rights and not circumvent these procedures by raising the alleged incorrectness of the decision as part of "any other reason" under s 190F(6)(b). The structure of s 190F supports this approach. In particular, it is made plain in s 190F(5)(b) that one of the preconditions to the Court's power to dismiss an application is that the Court is satisfied that all available reconsideration or review avenues have been exhausted without the claim being registered. This strongly suggests that those avenues should be used and exhausted by an applicant prior to the Court's consideration of an application to dismiss the claim. Those statutory avenues should not be circumvented or marginalised by an applicant determining not to pursue any of them and rather raise issues concerning the correctness of the delegate's decision within the framework of a proceeding under s 190F(6).
36 In any event, even if this is not the correct view of the statutory scheme, I would reject the applicant's challenges to the correctness of the delegate's second decision. In particular, I consider that it was reasonably open to the delegate to make the following findings which are impugned by the applicant.
(a) First, the native title determination application failed to satisfy s 190B(5)(a). This finding was not based on "incorrect information" as alleged by the applicant but rather, it was based on the absence of information to support the applicant's claimed native title. In particular, the applicant:
(i) failed to provide information demonstrating how the contemporary association of Muthi Muthi People has its origin in the preceding generations' association with the area (at [69]);
(ii) failed to provide material demonstrating how the association with the claim area of the generations of the applicant group has its origin in the preceding generations' association with the area (at [68]); and
(iii) failed to provide information demonstrating an association with the claim area of the generations of Muthi Muthi People in the period from sustained settlement to the mid to late 20th century (at [71]).
(b) Secondly, the amended claim application failed to satisfy s 190B(5). I do not accept the applicant's submission that the delegate applied a higher standard of proof than was required. The delegate applied the correct legal test (as outlined by Barker J in Stock at [64]-[66] and Mansfield J in Doepel at [17]) in determining that she was not satisfied as to the existence of a sufficient factual basis to support the applicant's claimed native title, due to the applicant's failure to provide relevant material. In addition, it was reasonably open to the delegate to conclude that ss 190B(5)(b) and (c) were not satisfied because the applicant:
(i) failed to show sufficiently that a pre-sovereignty society, under whose laws and customs native title rights and interests in the application area were possessed, has continued throughout the period since the assertion of sovereignty (at [81]);
(ii) failed to provide sufficient support for the assertion that the claimant group's traditional laws and customs exist, in the absence of explanation of the relationship between the present laws and customs of the applicant group and those acknowledged and observed at the time of sovereignty or European settlement (at [92]); and
(iii) failed to establish a sufficient factual basis to support the assertion that the applicant group continues to hold native title in accordance with its traditional laws and customs (at [94], [101]).
(c) Thirdly, the prima facie threshold in s 190B(6) was not met because the factors in s 190B(5) were not satisfied (at [101]-[102]). The applicant did not provide any authority to support their assertion that the prima facie test in s 190B(6) requires "only the most cursory, initial impression".
(d) Fourthly, the physical connection requirement in s 190B(7) was not satisfied because the amended application lacked the support of a factual basis that the native title claim group continues to acknowledge and observe its traditional laws and customs, as was concluded with respect to s 190B(5) (at [105]). This conclusion was reasonably open to the delegate, although the delegate acknowledged that "Mr Charles in his affidavit provides information that goes some way to demonstrating his traditional physical connection with parts of the claim area" and "[o]ther attachments to the application also provide support for the proposition that at least one member of the native title claim group has or has had the requisite physical connection".
37 When the preconditions in s 190F(5) exist, the terms of s 190F(6)(a) and (b) become the relevant provisions in considering dismissal of a claimant application. As Barker J stated in Sambo at [32]-[35]:
32 When any such application or motion is made for dismissal, the question is whether the claimant application should be dismissed. At that point the terms of s 190F(6)(a) and (b) come into play. It is then for an applicant, if it wishes to resist the dismissal, to put evidence before the Court that will lead to the Court not being satisfied that the application has not been amended since consideration by the Registrar and is not likely to be amended in a way that would lead to a different outcome once reconsidered by the Registrar; and in relation to the question whether there is no other reason why the claimant application should not be dismissed.
33 In that regard, there is a practical onus on an applicant to cause evidence to be supplied to the Court that may lead to the Court not being satisfied about those matters and not forming that relevant opinion: see Fazeldean on behalf of the Thalanyji People (No 2) v State of Western Australia [2012] FCA 1163 at [66].
34 In effect the proceeding now before the Court is in the nature of a show cause proceeding. The applicant has the opportunity to produce materials to show the Court that, notwithstanding the satisfaction of the preconditions to the exercise of the dismissal power, the application is likely to be amended in some way that would lead to a different outcome and/or there is another reason why the application should not be dismissed.
35 A practical burden falls on the applicant in this case therefore to deal with the different bases upon which the amended application failed the registration test and to show how a further amendment may be possible which would lead to a different outcome on a reconsideration; or that there is some other reason why the application should not be dismissed.
38 The applicant failed to provide any evidence that a further amendment would be made to the application for native title which would lead to a different outcome on a reconsideration by the Registrar. In the absence of any evidence or material to the contrary, I find it unlikely that the deficiencies in the claimant application as identified by the delegate will be remedied.
39 In my view, there is no other reason within the meaning of s 190F(6)(b) why the application should not be dismissed.
40 Finally, the Court does not accept the applicant's submission that NTSCORP is a vexatious litigant and was improperly joined as a respondent. On 4 December 2015, NTSCORP lodged an application to be joined as a party in the substantive proceeding (NSD 1248 of 2014), which was opposed by the applicant. The Court made separate orders on 16 March 2016 that NTSCORP be joined as a respondent in both the substantive proceeding and in the related review proceeding (NSD 1603 of 2015). To date the applicant has not sought leave to appeal those interlocutory orders. Those interlocutory orders stand. There is no material before the Court to support the applicant's serious allegations that NTSCORP has acted improperly or vexatiously. The applicant's attack on NTSCORP appears to be based on the mere fact of NTSCORP's opposition to the applicant's case. As these reasons demonstrate, that opposition was soundly based and responsibly advanced by NTSCORP. Although NTSCORP was three days late in filing its outline of written submissions in respect of the current application, Mr Pappin did not suggest that the applicant was prejudiced by this short delay. It appears that Mr Pappin had at least 11 days to consider NTSCORP's written submissions before he filed the applicant's outline of written submissions.