What happened
In 2015 SWALSC convened six authorisation meetings on country across the south-west of Western Australia for the purpose of obtaining the consent of Noongar people to six separate area ILUAs. These meetings took place at Bunbury, Busselton, Katanning, Gingin, Northam and Cannington between 31 January and 28 March 2015. Notices were published in The West Australian and Koori Mail in September 2015 and again in October 2017 after certain applications were withdrawn and resubmitted. The Registrar of the National Native Title Tribunal subsequently decided on 17 October 2018 to register each of the six ILUAs on the Register of Indigenous Land Use Agreements under s 199A of the Native Title Act 1993 (Cth). Those decisions gave effect to a comprehensive settlement under which the State of Western Australia would provide a package of benefits valued at approximately $1.3 billion in exchange for the surrender of all native title rights and interests in an area of over 200,000 square kilometres, consent to determinations that native title does not exist, and validation of potentially invalid acts.
Sheldon Prior did not lodge an objection to any of the registrations under s 24CI(1) of the Native Title Act. On 18 December 2018 he commenced judicial review proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and r 31.01 of the Federal Court Rules 2011 (Cth). His originating application listed seven grounds in bare, unparticularised form. They included an allegation of breach of natural justice citing Minister of State for Immigration and Ethnic Affairs v Teoh, assertions that the British had never settled or colonised Western Australia or the Noongar Nation, that they had acquired the land by fraud, conquest and invasion, that the Native Title Act was therefore invalid, that Noongar cultural protocols had not been followed, that SWALSC, governments and others had engaged in fraud, stealing, collusion, extortion and criminal conduct, and that the ILUAs were therefore tainted.
The State of Western Australia filed an interlocutory application on 21 December 2018 seeking summary dismissal under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules on the bases that the proceeding had no reasonable prospect of success, disclosed no reasonable cause of action, was frivolous or vexatious, or was an abuse of process. Affidavits were filed by the State and by Mr Prior and several other Noongar deponents. Mr Prior was granted leave to be represented at the hearing on 30 March 2020 by Ms L Minston, who advanced both the written submissions he had filed and additional oral arguments drawn in part from special leave submissions in the related McGlade litigation. Those arguments focused on alleged deficiencies in the authorisation process, barriers to participation (early buses, lack of child care, distance, exclusion of prisoners and homeless people), misleading information about the nature of the ILUAs as a treaty, and the contention that s 251A of the Native Title Act required all identified native title holders to agree to and adopt the decision-making process.
McKerracher J delivered judgment on 10 June 2020. His Honour assumed for the purposes of the interlocutory application that Mr Prior was a person aggrieved but concluded that none of the grounds had any reasonable prospect of success, that no reasonable cause of action was disclosed, and that the entire proceeding should be summarily dismissed with costs. The reasons run to 73 paragraphs and carefully traverse the statutory registration scheme, the binding effect of the Full Court’s decision in McGlade, the non-justiciability of sovereignty claims, and the principles governing summary dismissal articulated in Spencer v Commonwealth.
Why the court decided this way
McKerracher J began by identifying the narrow compass of judicial review of ILUA registration decisions. The Registrar’s task under s 24CK(2)(c) and s 24CK(4) is confined to determining whether an objector has satisfied the Registrar that the certification requirements in s 203BE(5)(a) and (b) were not met. The statute itself prescribes the content of procedural fairness. Notices were given in the determined way under s 24CH and the Native Title (Notices) Determination 2011 (No 1) (Cth). Objections were received from others and answered. Mr Prior himself made no objection. Accordingly there could be no procedural fairness complaint against the Registrar.
His Honour then turned to the substance of the seven grounds. Ground 1 was unparticularised. The reference to Teoh did not assist because the doctrine of legitimate expectation has since been restated in WZARH and, in any event, the NTA scheme exhaustively states what fairness requires. The balance of the grounds (2–7) were either incomprehensible or, on a fair reading, rested on assertions of Noongar sovereignty, the illegality of the British acquisition of Western Australia, and the consequent invalidity of the Native Title Act. These contentions are foreclosed by high authority. Gibbs J in Coe (1979) held that the validity of the Crown’s claim to sovereignty is not cognisable in municipal courts. Brennan J in Mabo (No 2) and the joint judgment in the Native Title Act case confirmed that the NTA is a valid exercise of the races power and that native title is recognised only as a burden on the Crown’s radical title after sovereignty has been acquired. McKerracher J quoted at length from Love v Commonwealth; Thoms v Commonwealth to reinforce that Aboriginal sovereignty arguments have been consistently rejected at the highest level.
The judge also noted that every argument capable of touching the authorisation and certification issues had been exhaustively examined and rejected by the Full Court in McGlade. Mr Prior had chosen not to participate in that proceeding. A single judge is bound by that decision. Oral submissions advanced through Ms Minston, although eloquent on the practical barriers faced by Noongar people, addressed a different case grounded in s 251A rather than the actual grounds in Mr Prior’s application. Even if those submissions had been properly before the Court they could not overcome the binding Full Court authority or the non-justiciable nature of the sovereignty claims.
Finally, the principles in Spencer v Commonwealth were applied. The “no reasonable prospect of success” test does not require the Court to conclude that a case is hopeless or bound to fail; it is sufficient that the prospect is not real. Here the defects were fundamental: non-justiciable claims, repetition of rejected arguments, scandalous and unparticularised allegations of fraud, and a complete failure to engage with the limited statutory criteria for registration. The power to dismiss summarily was therefore exercised.
Before and after state of the law
Prior to this judgment the law concerning ILUA registration was settled by the Full Court in McGlade. That decision confirmed that the Registrar’s role is narrow, that the NTA prescribes the procedural fairness obligations, and that challenges to the authorisation process must be channelled through the objection mechanism in s 24CI. The summary dismissal principles had been authoritatively restated by the High Court in Spencer, lowering the bar from the old General Steel and Dey tests and emphasising that a proceeding may be dismissed even if it cannot be said to be hopeless.
McKerracher J’s judgment does not change the underlying law. It applies those established principles to a litigant in person advancing sovereignty-based arguments. The decision reinforces that single judges will not permit collateral attacks on Crown sovereignty or the constitutional validity of the Native Title Act. It also illustrates the practical operation of the Spencer test in the native title context: where grounds fall outside the statutory review criteria or are foreclosed by binding authority, the proceeding will be brought to an early end. The judgment confirms that the comprehensive settlement negotiated over many years by SWALSC and the State can withstand further individual challenges of the present character. After the decision, the six ILUAs remain registered, the Settlement proceeds, and future challenges to similar registrations will be measured against the same narrow statutory and constitutional boundaries.
Key passages with plain-English translation
Paragraph 50 states: “This scheme expressly prescribes what procedural fairness requires in relation to the making of a registration decision: cf Re Minister for Immigration and Multicultural Affairs; Ex parte Miah.” In plain English, the Native Title Act itself tells everyone exactly what steps must be taken to be fair; once those steps are followed, a court cannot invent extra fairness obligations.
Paragraph 68 contains the core sovereignty passage: “The acquisition of sovereignty over a territory is an act of state, the validity of which is not justiciable in municipal courts (Coe v Commonwealth …).” Translation: Australian courts are not allowed to decide whether the British Crown validly took over the country; that question is beyond their power, so arguments based on “the British came by invasion not settlement” cannot succeed.
Paragraph 24 notes: “I am bound by the Full Court decisions, so could not reach a conclusion to the contrary of that decision as urged on behalf of Mr Prior, even if I were so inclined. I am not.” Plain English: the earlier Full Court decision in McGlade is binding on me; I must follow it and, in any case, I agree with it.
Paragraph 73 concludes: “None of the grounds in Mr Prior’s application disclose any issues of law or fact that should be decided at trial. The Court will exercise its discretion to summarily dismiss the whole of Mr Prior’s application with costs.” In everyday language: there is nothing here that needs a full hearing; the case is over and Mr Prior must pay the other parties’ legal costs.
These passages distil the three central pillars of the reasoning: the NTA’s exhaustive procedural fairness code, the non-justiciability of sovereignty, and the binding effect of Full Court precedent.
What fact patterns trigger this precedent
This precedent will be engaged whenever an applicant seeks to impugn the registration of an area ILUA on grounds that fall outside the statutory objection and review criteria in ss 24CI–24CK of the Native Title Act. Typical triggers include claims that the authorisation meetings were unfair because of early buses, lack of child care, distance from Perth, exclusion of prisoners or homeless people, or misleading information about the ILUA being a treaty. The case also applies where a litigant asserts that Noongar (or other Aboriginal) sovereignty was never ceded, that Western Australia was acquired by conquest rather than settlement, or that the Native Title Act is invalid for that reason. Unparticularised allegations of fraud, collusion or criminal conduct by SWALSC, State or Commonwealth actors in the settlement process will likewise attract summary dismissal.
The precedent is not limited to Noongar ILUAs. Any judicial review proceeding that seeks to re-litigate authorisation issues already determined by a Full Court, or that attempts to use the ADJR Act as a vehicle to challenge the constitutional foundations of Australian sovereignty, will engage the ratio. The factual matrix of extensive pre-registration community consultation, on-country meetings, newspaper and Koori Mail notices, and the absence of a timely s 24CI objection strengthens the case for summary relief. Conversely, the decision does not affect proceedings brought by actual objectors who have participated in the statutory process and raise discrete points about s 203BE(5) compliance that have not already been authoritatively determined.
How later courts have treated it
The judgment is a single-judge decision applying well-settled Full Court and High Court authority. It has not itself been the subject of appeal. Subsequent decisions in the Federal Court have continued to cite Spencer for the summary dismissal test and McGlade for the limits of ILUA registration review. The clear statements on non-justiciability of sovereignty repeat and apply the line of authority from Coe through Mabo, the Native Title Act case, and Love v Commonwealth; later benches have therefore had no occasion to depart from it. In native title practice the decision is routinely referred to in submissions seeking early termination of collateral attacks on settled ILUAs. Its treatment has been as a straightforward application of existing doctrine rather than a development of new principle. No court has suggested that the exhaustive statutory scheme for procedural fairness or the non-justiciability holding requires reconsideration.
Still-open questions
McKerracher J left open whether, in a differently constituted proceeding with proper pleadings and a timely objection under s 24CI, some narrower complaint about the practical operation of the “on country” authorisation process might warrant fuller examination. The reasons assume Mr Prior was aggrieved but do not decide the outer boundaries of that concept in the ILUA context. The precise content of the obligation under s 203BE(5)(b) to consult “all” identified native title holders continues to generate debate, although the Full Court in McGlade has substantially narrowed the scope for argument.
The judgment does not explore whether representative bodies such as SWALSC owe separate public law duties of fairness when they certify applications. Nor does it address the interaction between the ILUA registration scheme and any future treaty negotiations. While the reasons dismiss the “treaty” characterisation as irrelevant to the Registrar’s task, the legal status of the Noongar Settlement as a whole remains a matter of political and academic discussion rather than settled doctrine. Finally, the decision does not consider whether, in an appropriately framed constitutional proceeding, different arguments about the intersection of native title and citizenship or alienage (post-Love) might be ventilated; it simply confirms that the present proceeding was not such a vehicle. These narrower or collateral questions remain for future litigation, but the core holdings on sovereignty, statutory exhaustiveness and summary dismissal are unlikely to be disturbed.