Taylor v State of Western Australia

the application 9 The Taylor Group application was filed in the Federal Court on 14 September 2001. The application covers approximately 10,100 square kilometres in the south-west Geraldton region. 10 The Taylor Group applicants are not currently represented by the representative Aboriginal/Torres Strait Islander body for the area Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (Yamatji) or otherwise legally represented.

First registration test 11 The Taylor Group application first underwent the test for registration in s 190A of the NTA on 15 July 2002. The delegate of the Registrar decided not to accept the application for registration. No further steps in relation to the application have been taken by the applicants since that time.

Second registration test 12 Because the Taylor Group's 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. This occurred on 8 November 2007, when the Registrar's delegate decided that the application should not be accepted for registration because it 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 NTA; (ii) Subsection 190C(4) - the delegate was not satisfied that the persons named as the applicant had been authorised by the native title claim group; (iii) Subsection 190B(3) - the delegate was not satisfied that the description of the native title claim group was sufficiently clear that it could be ascertained whether any particular person is in the group; (iv) 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); (v) Subsection 190B(6) - the delegate did not consider that, prima facie, at least some of the claimed native title rights and interests could be established; and (vi) 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. 13 Since the applicant was notified of the Registrar's decision, no application seeking leave to amend the Taylor Group application has been filed; nor has an application for review of the Registrar's decision been made.

Submissions filed by Yamatji 14 Yamatji's submissions make clear that, Yamatji is involved in discussions with the State, regarding a proposed Alternative Settlement Agreement under s 86F of the NTA to resolve native title claims in the Southern Yamatji region. 15 Yamatji represents the Amangu, Naaguja and Hutt River native title claims, which cover an area of approximately 34,000 sq km in the southern Yamatji region. The external boundary of the three claims extends from Northampton, south to Eneabba, and east to Perenjori and Yalgoo. The area of land within that external boundary is, as a matter of convenience, referred to as the 'Alternative Settlement Area'. 16 In addition to the Amangu, Naaguja and Hutt River native title claims, there are five other native title claims that overlap parts of the Alternative Settlement Area; namely: Mullewa Wadjari (WAD 6119 of 1998), Franks (WAD 6273 of 1998), Taylor (WAD 6006 of 2001), Widi Mob (WAD 6193 of 1998) and Widi Binyardi (WAD286 of 2004). 17 Of the five native title determination applications that overlap parts of the Alternative Settlement Area, Taylor, Widi Mob and Widi Binyardi are presently before the Court in relation to ss 190F(5) and (6) of the NTA. 18 On 3 September 2004, the claims involved in the Alternative Settlement negotiations and Yamatji met with representatives from both the Office of Native Title (ONT) and Department of Planning and Infrastructure (DPI). In the course of that meeting, the ONT representatives advised that the State is committed to negotiating an Alternative Settlement Agreement subject to the following conditions: 1. The agreement would need to be inclusive of all traditional Indigenous interests in the Alternative Settlement Area; 2. The State would need to be satisfied that it is dealing with the 'right people' for that area; 3. There would need to be a single agreement which includes all overlapping claim groups although that agreement may include subsidiary agreements with each of the overlapping groups; and 4. There would need to be a single entity, to sign the agreement, however that legal entity may consist of subsidiary legal entities. 19 In his mediation progress report to the Court dated 23 June 2008, Member John Catlin of the National Native Title Tribunal states as follows: On 11 December 2007 I reported to the Federal Court in relation to this and other applications in the Southern Geraldton region and recommended that the Tribunal continue to provide mediation to consider options for resolving the claim overlaps. Currently the option being pursued by the cluster of Southern Geraldton claims, including Taylor, is the proposed Southern Geraldton Alternative Settlement Agreement (ASA). Some members of the Taylor Group have successfully sought representation on the working group of the overlapping registered Amangu claim. Taylor Group families are also accepted for representation on the combined working group for the proposed ASA. The Tribunal held a number of telephone discussions with the applicant regarding Taylor Group's inclusion in the proposed ASA however, as noted above, Mr Taylor did not attend any of the assistance meetings arranged by the Tribunal. The Tribunal remains willing to provide assistance to the claimants for the resolution of the four overlaps to this claim, however, based on my understanding that none of the respondents, including the State of Western Australia, intend to mediate with the Taylor Group claim in its own right it is my view that there is no scope for a mediated determination of this application. 20 If the Taylor claim remains, but does not participate in the Alternative Settlement process, then it could prejudice the other claims in the process, including the Amangu claim, due to the State's requirements outlined above. 21 Yamatji also states in its submissions that it is not aware of any reason why this claim should not be dismissed under ss 190F(5) and (6) of the NTA.

Submissions filed by the First Respondent 22 Although the State filed submissions on 23 June 2008, it subsequently advised at the review hearing on 30 June 2008 that it withdrew those submissions and adopted the submissions filed by Yamatji.

Conclusion 23 On the basis of the history, I am satisfied for the purposes of s 190F(6) of the NTA that the application has not been amended since it was considered 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 by the Registrar. There is no other reason why the application should not be dismissed. The application will be dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: Dated: 12 November 2008 No appearance by the applicants.

Solicitor for the First Respondent: State Solicitors Officer

Solicitor for the Second Respondent: Hunt & Humphry

Solicitor for the Third Respondent: Australian Government Solicitor