Tait on behalf of the Ngarrawanji #3 Yarlil Native Title Claim Group v State of Western Australia

Federal Court of Australia|2022-08-01|Before: Smith J

The native title determination application be dismissed pursuant to s 190F(6) of the Native Title Act 1993 (Cth).
There be liberty to apply with respect to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BANKS-SMITH J: 1 This application to dismiss or strike out a native title determination application was listed for hearing before me today. In the end opposition to the application fell away, and I have made orders and determined the application on the papers.

The native title determination application 2 On 27 January 2021 the applicant (Ngarrawanji #3 applicant), on behalf of the Ngarrawanji #3 Yarlil native title claim group, filed a native title determination application. It covers approximately 112 square kilometres in the East Kimberley region.

The interlocutory application to dismiss 3 On 7 June 2022 an interlocutory application was filed seeking orders to strike out or summarily dismiss the application. 4 The interlocutory application was brought by three respondents: Pauline Manning, Frank Sampi and Edna Skeen. Each claims to hold native title rights and interests in the claim area. For convenience, and because they are applicants in a separate determination application known as the Koongie-Elvire native title determination claim that is case managed with this matter (WAD 45 of 2019), I will refer to them as the KE respondents. 5 The interlocutory application is supported by the State and by the Kimberley Land Council (KLC), both of which are also respondents. 6 The KE respondents, the State and the KLC all filed useful written submissions and the matter was listed for hearing. Shortly before the hearing the Ngarrawanji #3 applicant consented to an order striking out the native title determination application. Having considered the various submissions, I formed the view that orders dismissing the application should be made. 7 Because the Ngarrawanji #3 applicant purported to represent the Ngarrawanji #3 Yarlil native title claim group in bringing the native title determination application, it is appropriate that I provide some brief reasons that explain why the application is to be dismissed.

Registration test not satisfied 8 Following lodgement of the Ngarrawanji #3 application, a delegate of the Native Title Registrar considered the application for registration against each of the conditions contained in s 190B and s 190C of the Native Title Act 1993 (Cth) pursuant to the process provided for by s 190A of the Native Title Act. 9 Section 190A(6)(b) relevantly provides that the Registrar must accept the claim for registration if the claim satisfies all of the conditions in s 190B (which deals mainly with the merits of the claim) and in s 190C (which deals with procedural and other matters). 10 The relevant provisions of s 190B are in the following terms: Registration: conditions about merits of the claim (1) This section contains the conditions mentioned in subparagraph 190A(6)(b)(i). … Identification of claimed native title (4) The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified. Factual basis for claimed native title (5) The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions: (a) that the native title claim group have, and the predecessors of those persons had, an association with the area; and (b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. Prima facie case (6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established. Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a 'right to negotiate' process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a 'right to negotiate' process). Physical connection (7) The Registrar must be satisfied that at least one member of the native title claim group: (a) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or (b) previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by: (i) the Crown in any capacity; or (ii) a statutory authority of the Crown in any capacity; or (iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease. No failure to comply with section 61A (8) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of section 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made. 11 The relevant provisions of s 190C are in the following terms: Registration: conditions about procedural and other matters (1) This section contains the conditions mentioned in subparagraph 190A(6)(b)(ii). … Identity of claimed native title holders (4) The Registrar must be satisfied that either of the following is the case: (a) the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; or Note: An application can be certified under section 203BE, or may have been certified under the former paragraph 202(4)(d). A representative Aboriginal/Torres Strait Islander body may certify the application, even if it is only the representative body for part of the area claimed. (b) the requirements mentioned in subsection (4AA) are met. (4AA) For the purposes of paragraph (4)(b), the requirements are: (a) the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group; and (b) either: (i) there are no conditions under section 251BA on the authority that relate to the making of the application; or (ii) any conditions under section 251BA on the authority that relate to the making of the application have been satisfied. Note: The word authorise is defined in section 251B. 12 On 21 May 2021 the delegate determined not to accept the Ngarrawanji #3 claim for registration pursuant to s 190A of the Native Title Act on the basis that it did not satisfy s 190B(4)-(8) or s 190C(4)(a)-(b) of the Native Title Act. 13 The delegate published lengthy reasons and it is not necessary to address them all, but I will return to certain aspects below.

Possible courses following delegate's decision 14 After the decision, it remained open to the Ngarrawanji #3 applicant to apply to the National Native Title Tribunal (NNTT) to reconsider the claim made in the Ngarrawanji #3 application, under s 190E(l) of the Native Title Act, within 42 days of the notice of the registration decision (that is, by 2 July 2021). No application was made. 15 It was also open to the Ngarrawanji #3 applicant to apply to this Court under s 190F(l) of the Native Title Act for a review of the registration decision, provided that the NNTT was not at that time reconsidering the claim under s 190E of the Native Title Act. Such an application to the Court could have been made within 42 days of the notice of the registration decision. No such application was made. 16 From at least 21 August 2021 the Ngarrawanji #3 applicant also had logistical and on-ground assistance available to it for the purpose of, relevantly, re-authorising the application, facilitated by the KLC. That assistance remained available to it until 8 December 2021 (evidence provided by an affidavit affirmed by Claire Saffery on behalf of the KLC). 17 The Ngarrawanji #3 application has not progressed to any significant extent since it was filed. For example, no anthropological report in support of the claim has been provided to the State for consideration.

Case management 18 At a case management hearing on 16 December 2021 Mortimer J made orders progressing this and WAD 45 of 2019 to a hearing (dates are now listed in November 2022). Relevantly, her Honour ordered that by 30 March 2022 the Ngarrawanji #3 applicant was to file and serve any further native title determination application over the areas claimed in this application and WAD 45 of 2019, or any amendments to existing claims, and that otherwise (subject to further order) no further native title application over those areas was to be accepted for filing without leave. 19 At a case management hearing on 18 March 2022 I extended the date of 30 March 2022 referred to in the previous orders to 30 May 2022. 20 Despite the extended window of opportunity, the Ngarrawanji #3 applicant did not lodge any amended native title determination applications with the Court prior to (or after) 30 May 2022. 21 At a case management hearing on 8 June 2022 I noted that the time for bringing overlapping claims or amendments to claims had expired, and programmed the hearing of the strike out application, granting the Ngarrawanji #3 applicant until 6 July 2022 to file any affidavits or submissions opposing the application. None were filed.

The relief sought 22 The KE respondents rely on a number of pathways in their interlocutory application: (a) s 84C(1) of the Native Title Act - application should be struck out for non-compliance relevantly with various requirements of s 61(1) and s 61A of the Native Title Act; (b) s 31A(2) of the Federal Court of Australia Act 1976 (Cth) - application should be summarily dismissed on the basis that there are no reasonable prospects of the Ngarrawanji #3 applicant establishing the application was properly authorised within the meaning of s 61(1) and s 251B of the Native Title Act; or (c) s 190F(6) of the Native Title Act - application should be dismissed by exercise of the Court's discretion because it has not been amended since consideration by the Registrar, is not likely to be amended in a way that would lead to a different outcome, and there is no other reason why it should not be dismissed. 23 I accept the State's submission that the clearest pathway in this case is that provided by s 190F(6) of the Native Title Act, and in light of the Ngarrawanji #3 applicant's consent to the dismissal of its application, it is not necessary to address the other bases upon which it may have been dismissed or struck out. A similar approach was taken by Bromberg J in Dimer on behalf of the Jardu Mar People v State of Western Australia [2022] FCA 64 at [14].

Section 190F(6) 24 The Court's power under s 190F(6) of the Native Title Act to dismiss a claimant application such as the Ngarrawanji #3 application is only enlivened if the preconditions provided for by s 190F(5) are satisfied. So it is appropriate to first consider s 190F(5). 25 Section 190F(5) of the Native Title Act provides: Where no application for review, or Court does not make order under subsection (4) on review (5) Subsection (6) applies in a case where: (a) the Registrar does not accept the claim for registration either because, in the opinion of the Registrar or, if the claim is reconsidered under section 190E, of the member of the NNTT reconsidering the claim: (i) it does not satisfy all of the conditions in section 190B; or (ii) it is not possible to determine whether all of the conditions in section 190B have been satisfied because of a failure to satisfy section 190C; and (b) the Court is satisfied that the avenues for: (i) the reconsideration under section 190E of the Registrar's decision; and (ii) the review under this section of the Registrar's decision; and (iii) the review of orders made in the determination of an application under this section; and (iv) the review of the Registrar's decision under any other law; have all been exhausted without the registration of the claim. 26 I am satisfied that the avenues specified by s 190F(5)(a) have been exhausted without the registration of the Ngarrawanji #3 application. As I have noted, the delegate has not accepted the claim for registration on the basis specified by s 190F(5)(a)(i). 27 As to s 190F(5)(b), I am satisfied that no reconsideration as referred to in s 190F(5)(b)(i) was initiated within the prescribed time period. 28 I am also satisfied that, given that the time specified by r 34.109 of the Federal Court Rules 2011 (Cth) for any application for review has expired, the avenue addressed by s 190F(5)(b)(ii) of a review by this Court has been exhausted. 29 The avenues specified by either s 190F(5)(b)(iii) or (iv) do not appear to arise in the circumstance of this proceeding. 30 Accordingly, all avenues for review have been exhausted and so the conditions in s 190F(5) have been met. When the preconditions in s 190F(5) have been met, s 190F(6) applies. 31 Section 190F(6) of the Native Title Act provides that the Court, on application of a party or by its own motion, may dismiss the application in issue if: (a) the Court is satisfied that the application in issue has not been amended since its consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar (s 190F(6)(a)); and (b) in the opinion of the Court, there is no other reason why the application should not be dismissed (s 190F(6)(b)). 32 As stated by Barker J in Sambo v State of Western Australia [2015] FCA 954: [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 s190F(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.

Application not amended and not likely to be amended - s 190F(6)(a) 33 As noted, the Ngarrawanji #3 application has not been amended, or been sought to be amended, since it failed the registration test on 21 May 2021. 34 So, it is necessary to turn to whether the application is likely to be amended in a way that would lead to a different outcome. The meaning of 'likely' in the context of s 190F(6)(a) has been equated to a real chance rather than a mere possibility: Champion v State of Western Australia (No 2) [2011] FCA 345 at [12] (McKerracher J). 35 In Pappin on behalf of the Muthi Muthi People v Attorney-General of New South Wales (No 3) [2018] FCA 1036, Griffiths J accepted and applied a submission to the effect that the following matters were relevant in assessing 'likelihood' (at [21]): (a) the reasons given for refusal of registration; (b) the extent to which amendments addressing the reasons for refusal might be possible and within the control of the applicant or conversely require the participation of others; (c) in a case requiring participation or action of any other person, the probability of that participation being forthcoming or the action being taken; (d) the authority, capacity and inclination of the applicant (and of any other required participant) to take the steps necessary to make amendments capable of addressing the reasons for refusal; (e) the resources and assistance available to the applicant (and of any other required participant) to take the steps necessary to make amendments capable of addressing the reasons for refusal; and (f) the opportunities already afforded to the applicant to initiate and/or take steps to make amendments addressing the reasons for refusal and any facts or circumstances explaining why initiatives or steps have not been taken or have not succeeded. 36 The delegate's reasons in this case refer to a large number of obstacles to registration (see [12] above). Although it may be accepted that some defects are capable of rectification, others are not. Relevantly, the delegate was not satisfied that the Ngarrawanji #3 applicant was properly authorised within the meaning of s 251B of the Native Title Act, a requirement of s 190C(4)(b), and a defect that could not be cured. It is primarily this defect that has satisfied me that it is appropriate to dismiss the application.

Substantive defect - no proper authorisation 37 Section 61(1) of the Native Title Act permits the making of a native title determination application by a person or persons who are 'authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed'. The authorised person or persons is defined by s 61(2)(c) jointly as the 'applicant'. The Native Title Act vests the carriage of a native title determination application in the applicant. 38 Section 251B provides: Authorising the making of applications For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind - the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process - the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind. 39 The process of authorisation is of central importance to the conduct of native title determinations. Those who purport to exercise rights on behalf of a group of asserted native title holders must have the authority of the group to do so: Daniel v State of Western Australia [2002] FCA 1147 at [11]. 40 If decisions are to be made at a meeting of members of a claim group, then there must be proper notice given: Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [40]-[41] (Rares J). 41 In this case, the delegate had before her affidavits from the Ngarrawanji #3 applicant members, their submissions and a letter from the KLC. Such evidence indicated a number of issues: (a) the affidavits indicated that the members of the applicant group met together on 15 September 2020 at Halls Creek, and that after members had the opportunity to talk about the application, some 13 motions were put to and voted upon by the members, including motions to authorise the application and to authorise the Ngarrawanji #3 applicant; (b) it was said that the motions were passed 'in accordance with our people's traditional decision-making processes', but the delegate was unable to identify the decision making process that was involved, and the information that was provided was inconsistent; (c) further, despite the evidence from the applicants, the relevant notice of meeting (which was in evidence) indicated that the meeting was organised by the KLC but not for the purpose of authorising the Ngarrawanji #3 native title determination application. Rather, the notice of meeting indicated that the meeting was to be held in relation to the establishment of a prescribed body corporate for different conditional native title determinations, being Ngarrawanji (WAD 41 of 2019) and Ngarrawanji #2 (WAD 569 of 2019); (d) the notice of meeting invited native title holders described by reference to those applications and their relevant apical ancestors and certain non-descent based pathways; (e) there was no mention or indication in the notice of meeting that the purpose of the meeting was to authorise the Ngarrawanji #3 applicant or application, and the notice contained no maps of the proposed determination areas; (f) the conduct of the meeting itself was not without issue - there was dispute as to who should be present, no agenda or list of attendees was provided to the delegate, and it was not clear who controlled or chaired the meeting and under what authority; (g) the delegate was therefore unable to satisfy herself that the Ngarrawanji #3 applicant was authorised to make the application pursuant to an agreed and adopted decision making process; and (h) nor was the delegate able to satisfy herself on the information before her that the composition of the group was such that it represented a claim group, having regard to discrepancies in the description of the persons invited by the notice of meeting to attend and the persons described in the schedule to the Ngarrawanji #3 application. 42 The delegate concluded that although she was satisfied that s 190C(5) was met in the circumstances, she was not satisfied that the Ngarrawanji #3 applicant has been authorised to make the application by all the other members of the claim group. Accordingly, the requirements of s 190C(4)(b) were not satisfied and s 190C(4) was not met. 43 There was no evidence before me to indicate that the conclusions of the delegate were not well founded. There was no evidence provided to explain the discrepancies referred to. Nor was there evidence that suggested further factual material might be available to the Ngarrawanji #3 applicant that might indicate that there was a solution to the authorisation problems referred to. The Ngarrawanji #3 applicant has already been afforded time to seek to re-authorise the applicant members to bring the application, but has not sought to do so. Therefore, I am satisfied that it is not likely that there is any real prospect that there would be a different outcome if the application were to be reconsidered by the Registrar.

No other reason not to dismiss - s 190F(6)(b) 44 The continuation of the Ngarrawanji #3 application also has the potential to prejudice and delay the progression of the Koongie-Elvire native title determination claim, which is listed for hearing in November 2022. Those dates have been reserved for some time, and the programming to hearing has already been interrupted by this application. That matter should now proceed as efficiently as possible to hearing. 45 The Ngarrawanji #3 applicant has not pointed to any other discretionary matter that might weigh in favour of a different outcome, and has not maintained its opposition to the application. 46 Therefore, I have come to the view that there is no reason why the Ngarrawanji #3 application should not be dismissed.

Orders 47 Accordingly, there will be an order under s 190F(6) of the Native Title Act dismissing the application. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.

SCHEDULE OF PARTIES WAD 11 of 2021 Respondents Fourth Respondent: KIMBERLEY LAND COUNCIL Fifth Respondent: EDNA SKEEN Sixth Respondent: PAULINE MANNING Seventh Respondent: FRANK SAMPI Eighth Respondent: THALNGARR NGARRINY ABORIGINAL CORPORATION Ninth Respondent: TELSTRA CORPORATION LIMITED (ABN 33 051 775 556)

Native Title Act 1993(Cth)ss 61, 61A, 84C, 190A, 190B, 190C, 190E, 190F, 251B

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