Strickland v State of Western Australia

Solicitor for the State of Western Australia: State Solicitors Office

Counsel for the Commonwealth of Australia: S Oliver

Solicitor for the Commonwealth of Australia: Australian Government Solicitor

Counsel for Various Mining/Fishing Interests: M McKenna

Solicitor for Various Mining/Fishing Interests: Hunt & Humphry

Counsel for Various Local Government Interests: A Mararaj-MacLean

Solicitor for Various Local Government Interests: Minter Ellison

Dr H Esbenshade appeared on behalf of Various Pastoral Interests.

GENERAL DIVISION WAD 76 of 1997

CITY OF KALGOORLIE - BOULDER, SHIRE OF COOLGARDIE and SHIRE OF LEONORA

GOLDFIELDS LAND & SEA COUNCIL ABORIGINAL CORPORATION

ARCHAEAN GOLD NL, BORDER RESOURCES NL, DELTA GOLD EXPLORATION PTY LTD, DELTA GOLD NL, GOLDFIELDS EXPLORATION PTY LTD, HOMESTAKE GOLD OF AUSTRALIA LTD, KALGOORLIE LAKE VIEW PTY LTD, KUNDANA GOLD PTY LTD, PANCONTINENTAL GOLD (OPERATIONS) PTY LTD, PANCONTINENTAL GOLDMINING AREAS PTY LTD, PANCONTINENTAL MINING LTD, PLUTONIC (BAXTER) PTY LTD, PLUTONIC OPERATIONS LTD, WILLIAM JAMES STILLMAN and WILBROASH MINING AND EXPLORATION

NEWMONT KALTAILS PTY LTD and NORTH KALGURLI MINES PTY LTD

BHP BILLITON NICKEL WEST PTY LTD and DALRYMPLE RESOURCES NL

COWARNA DOWNS PTY LTD and YUNDAMINDRA PASTORAL HOLDINGS PTY LTD

BURCHILL FRANCIS CECIL JONES, JOHN LOAD CECIL JONES, KEITH CHARLES MADER, MENANGINA PTY LTD and MT VETTERS PASTORAL CO (1966) PTY LTD

1 All references to 'Wongartha' be amended to read 'Wongatha'. I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice McKerracher.

GENERAL DIVISION WAD 76 of 1997

CITY OF KALGOORLIE - BOULDER, SHIRE OF COOLGARDIE and SHIRE OF LEONORA

GOLDFIELDS LAND & SEA COUNCIL ABORIGINAL CORPORATION

ARCHAEAN GOLD NL, BORDER RESOURCES NL, DELTA GOLD EXPLORATION PTY LTD, DELTA GOLD NL, GOLDFIELDS EXPLORATION PTY LTD, HOMESTAKE GOLD OF AUSTRALIA LTD, KALGOORLIE LAKE VIEW PTY LTD, KUNDANA GOLD PTY LTD, PANCONTINENTAL GOLD (OPERATIONS) PTY LTD, PANCONTINENTAL GOLDMINING AREAS PTY LTD, PANCONTINENTAL MINING LTD, PLUTONIC (BAXTER) PTY LTD, PLUTONIC OPERATIONS LTD, WILLIAM JAMES STILLMAN and WILBROASH MINING AND EXPLORATION

NEWMONT KALTAILS PTY LTD and NORTH KALGURLI MINES PTY LTD

BHP BILLITON NICKEL WEST PTY LTD and DALRYMPLE RESOURCES NL

COWARNA DOWNS PTY LTD and YUNDAMINDRA PASTORAL HOLDINGS PTY LTD

BURCHILL FRANCIS CECIL JONES, JOHN LOAD CECIL JONES, KEITH CHARLES MADER, MENANGINA PTY LTD and MT VETTERS PASTORAL CO (1966) PTY LTD

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

GENERAL DIVISION WAD 76 of 1997

CITY OF KALGOORLIE - BOULDER, SHIRE OF COOLGARDIE and SHIRE OF LEONORA

GOLDFIELDS LAND & SEA COUNCIL ABORIGINAL CORPORATION

ARCHAEAN GOLD NL, BORDER RESOURCES NL, DELTA GOLD EXPLORATION PTY LTD, DELTA GOLD NL, GOLDFIELDS EXPLORATION PTY LTD, HOMESTAKE GOLD OF AUSTRALIA LTD, KALGOORLIE LAKE VIEW PTY LTD, KUNDANA GOLD PTY LTD, PANCONTINENTAL GOLD (OPERATIONS) PTY LTD, PANCONTINENTAL GOLDMINING AREAS PTY LTD, PANCONTINENTAL MINING LTD, PLUTONIC (BAXTER) PTY LTD, PLUTONIC OPERATIONS LTD, WILLIAM JAMES STILLMAN and WILBROASH MINING AND EXPLORATION

NEWMONT KALTAILS PTY LTD and NORTH KALGURLI MINES PTY LTD

BHP BILLITON NICKEL WEST PTY LTD and DALRYMPLE RESOURCES NL

COWARNA DOWNS PTY LTD and YUNDAMINDRA PASTORAL HOLDINGS PTY LTD

BURCHILL FRANCIS CECIL JONES, JOHN LOAD CECIL JONES, KEITH CHARLES MADER, MENANGINA PTY LTD and MT VETTERS PASTORAL CO (1966) PTY LTD

INTRODUCTION 1 On 5 June 2009 the delegate of the Native Title Registrar (the delegate) decided not to accept the present native title application for registration under s 190A of the Native Title Act 1993 (Cth) (the Act). 2 The matter came before me on 14 December 2009. I ordered that unless submissions in relation to the disposition of the application under s 190F(6) of the Act were filed on 19 February 2010, I would proceed to determine whether or not the matter should be dismissed pursuant to that provision and without submissions. 3 My reasons for dismissing the matter follow.

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) of the Act, 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 190F(6) '…will ensure that applications are not dismissed where there is good reason for a claim remaining in the system, despite being unregistered' (at para 4.331). 10 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.

APPLICATION FOR REGISTRATION 11 The applicants represent the Maduwongga people. The application is a combination of three applications made to the Native Title Registrar on 19 April 1994, 6 April 1995 and 8 April 1998. On 17 February 1999, leave of the Court was given to amend and to combine the three applications. 12 The registration test in s 190A of the Act was previously applied on two occasions. 13 On 8 June 1999, the delegate considered the original amendment and combination of the three earlier Maduwongga applications. The delegate did not accept the application for registration on this occasion. Following an application for judicial review, in Strickland v Native Title Registrar (1999) 168 ALR 242, French J (as his Honour then was) ordered that the delegate's decision be set aside and that the application be accepted for registration and included in the Register of Native Title Claims. French J's decision was upheld on appeal: Western Australia v Strickland (2000) 99 FCR 33. 14 On 12 September 2005, the delegate considered an amended application filed on 13 June 2003, for which leave to amend was granted by the Federal Court on 11 August 2003. On this occasion the delegate decided that the application did not meet the conditions found in ss 190C(2), 190C(3), 190B(2) and 190B(9) of the Act and the details of the claim were removed from the Register of Native Title Claims. 15 The application has not been amended since the test in s 190A was applied in September 2005. However, the area covered by the application was significantly reduced as a result of the orders made in Harrington-Smith on behalf of the Wongartha People v State of Western Australia (No 9) (2007) 238 ALR 1 (Wongartha) where the application was one of eight overlapping claims before the Court. Lindgren J considered some of the overlapping claims and made orders in respect to the Maduwongga application that: The application be dismissed to the extent that it relates to land or waters that are also the subject of proceedings WAD 6005 of 1998 (Harrington-Smith & Ors v State of Western Australia & Ors). 16 In light of that decision, the delegate reconsidered the application for registration of that part of the Maduwongga claim that was not dismissed by the Court in Wongartha. 17 On 5 June 2009, the delegate decided not to accept the application for registration under s 190A of the Act. The delegate found that the application did not satisfy the following conditions: a. Subsection 190C(4)(b) - the delegate was not satisfied that the applicant was authorised by all the other persons in the native title claim group to make the application and deal with matters arising in relation to it. b. Subsection 190B(5) - the delegate was not satisfied that the factual basis provided was sufficient to support each of the particularised assertions made pursuant to the section. c. Subsection 190B(6) - the delegate did not consider that, prima facie, the applicants had established any of the claimed native title rights or interests. d. Subsection 190B(7) - the delegate was not satisfied that at least one member of the native title claim group, has, or previously had, a physical connection with any part of the land or waters covered by the application. e. Subsection 190B(9)(a) - the delegate was not satisfied that the applicant was not making a claim to the ownership of gas. 18 This matter was listed before me on 14 December 2009. I ordered that: 1. Unless submissions in relation to the disposition of the application under s 190F(6) of the Native Title Act 1993 (Cth) (NTA) are filed and served by 4:00pm on 19 February 2010, the Court will proceed to determine whether or not the matter is to be dismissed pursuant to that provision and without submissions. 19 To date, no submissions have been filed with the Court.

CONCLUSION 20 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 there is nothing to prevent the applicants from filing a properly constituted claim in the future. 21 The application will be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.