Wanirr v Northern Territory of Australia

1. On the application of the respondent of 28 August 2015, pursuant to s 84C of the Native Title Act 1993 (Cth) the native title determination application is struck out. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MANSFIELD J: 1 This application for the determination of native title, made under s 61 of the Native Title Act 1993 (Cth) (the NT Act), was commenced on 1 April 2015 by Virgil Wanirr on behalf of nine clans, listed later in these reasons. 2 For present purposes, I accept the assertion of counsel for the applicant at a directions hearing that the claim area includes the Town of Batchelor. Schedule B to the application only identifies the boundaries of the claim area as the area shaded on the map Attachment C. Schedule C refers to the same attachment. The application has a page marked Attachment C, but there is no map. The next page is Schedule E. At the back of the documents comprising the application (after Schedule R), there is a series of maps with various annotations. They are of poor quality. They cover a much greater area than the Town of Batchelor. None of them is clearly identified as Attachment C, or can readily fit the description in Schedule B. 3 In the course of submissions at a directions hearing, counsel for the applicant handed up a bundle of maps, with 22 indexed maps, and headed "NTD 5/2015 Batchelor Environs Application". They are much more legible than those with the application. The bundle seems to be the same bundle as that at the back of the application itself. 4 By reference to the index, the first map is described as "Map of application Area 1:a marked in orange" and the second map is described as "Map 1:b Application Area Northern detail marked in orange". 5 The first map is a section of the Northern Territory, from Darwin, running south to below the Town of Adelaide River, and roughly with the Stuart Highway bisecting it vertically. The area delineated in orange runs north/south from a southern point about to the west of the Town of Adelaide River, in a strip of varying east-west width and up to the southern side of the Middle Arm of Darwin Harbour. Its eastern boundary is drawn so as to include the Town of Batchelor as part of that boundary, but it appears that its western boundary abuts more or less with the eastern boundaries of the claims known as Litchfield National Park (NTD 24 of 2005), Wagait No 2 (NTD 31 of 2005) and Bynoe No 2 (NTD 23 of 2005). Its eastern boundary is marked along Haycock Road as it extends roughly southerly from the Middle Arm. 6 So if that is the claim area, it is quite extensive. In any event, as I have noted, the claim area includes the Town of Batchelor. 7 The Northern Territory on 28 August 2015 applied, pursuant to s 84C(1) of the NT Act for an order that the native title determination application be struck out. An affidavit of Kalliopi (Poppi) Gatis sworn on 28 August 2015 was filed in support of that strike out application. 8 For the purpose of determining the strike out application, it also sought that certain evidentiary orders under s 86(1)(a) and (c) of the NT Act for the receipt of certain evidence and the adoption of certain findings of the Court (Mansfield J) in Hazelbane v Northern Territory [2014] FCA 886 (the Town of Batchelor 2014 judgment), being the judgment on an application to strike out the Town of Batchelor No 2 claim (NTD 21 of 2005) which relates to the composition and formulation of the relevant putative native title holding group and the basis upon which that group asserted native title rights and interests. 9 On 18 November 2015, the applicant applied for leave to amend the native title determination in the form contained in an affidavit of Christopher Blishen of that date. 10 Mr Blishen had only recently been instructed to act for the applicant in this matter, and it appears from his affidavit that the proposed changes were prompted by the Native Title Registrar having decided on 10 August 2015 not to accept the claim for registration and the reasons for that decision. 11 On 23 November 2015, the Court made orders provisionally allowing the applicant to amend the native title determination application as proposed on the strike out application. 12 The Court on the strike out application on that date also ordered provisionally that: (1) pursuant to s 86(1) of the NT Act, the Court would: (a) receive into evidence on that application the transcript of evidence in the hearing of the Lower Daly Land Claim comprising the evidence given by Thomas Edward Petherick on 13 September 2002; (b) receive into evidence on that application the transcript of evidence in Hazelbane & Ors obo Warai & Kungarakany People v Northern Territory NTD 6057 of 2001, NTD 21 of 2005 and NTD 18 of 2006 (the Town of Batchelor claims) comprising the evidence given by Mr Petherick on 26 May 2011; (c) receive into evidence in this interlocutory application the transcript of evidence in the Town of Batchelor claims comprising: (i) the evidence given by Mr Petherick on 4 September 2013; (ii) the evidence given by Mr Petherick on 5 September 2013; and (iii) the evidence given by Christian Adams, anthropologist, called by the applicant in NTD 21 of 2005 on 5 September 2013; and (d) adopt certain findings from the decision of the Court in the Town of Batchelor 2014 judgment. 13 Directions were also made on the strike out application, giving leave to the applicant to file such further evidence in response as advised within 21 days, and for the exchange of written submissions, to the intent that the application would be determined on the papers. 14 The orders were provisional, as counsel for the Northern Territory was not present (although the Northern Territory was represented). They were confirmed on 27 November 2015, subject to slight variations of the date in the timetable. 15 The applicant duly filed on 14 December 2015 an amended application with a supporting affidavit of his solicitor. No further evidence was submitted. Apart from the submissions made in support of the amendment application, no further written submissions were provided specific to this matter. The amended application had the map attached as Attachment C which is referred to in [4] and [5] hereof. The description of the claim area is more precise: The Northern, Eastern and Southern boundaries are bordered by the highest external point within the catchment area of the Finniss River. The Western boundary is bordered by the Eastern boundaries of the Native Title Determination Claims NTD 23/05 Bynoe No.2, NTD 31/05 Wagait No.2 and NTD 24/05 Litchfield National Park. A considerably more sophisticated description with notes and maps was provided on 18 December 2015, with an application to permit them as part of the amended application. That data and mapping has been done by the National Native Title Tribunal. 16 The amended application says that the native title claim group comprises the same nine clans, namely the Marri (Cycad/Glider Possum (Wawun)) Clan; the Emu (Mutjirr) Clan; the Blue Tongue Lizard (Awiyeri) Clan; the Werak Goanna Clan; the Long Neck Turtle (Ardram) Clan; the Catfish (Giayi) Clan; the Red Kangaroo (Kumbit) Clan; the King Brown Snake (Wulunggar) Clan; and the Freshwater Crocodile (Jingurr) Clan. 17 As the original application showed (putting aside the defects in authorisation referred to by the Native Title Registrar), the applicant said he was authorised to make the claim by his clan, the Blue Tongue Lizard (Awiyeri) clan, and by delegation from eight other individuals who each separately deposed (in Attachment R) to having each been authorised by their particular clan to make an application for the determination of native title rights and interests on behalf of that clan, and who each in effect then delegated that function on behalf of that clan to the applicant. The further affidavit of the applicant added to Schedule R of the amended application confirms that. 18 The strike out application by the Northern Territory is on the same basis as in the strike out applications in the Bynoe No 2 (NTD 23 of 2005) and other applications. I have given reasons for judgment in the relation to those applications on the same date as this judgment: Thardim v Northern Territory of Australia [2016] FCA 407. 19 It was common ground that the foundations for the strike out application of the Northern Territory in this matter are the same as that in relation to the application and the judgment referred to in the preceding paragraph. That is as to both the legal foundations and the factual foundations. 20 In those circumstances, there is little point in repeating those reasons. They apply with equal force here. I have carefully sought for any points of distinction but they do not emerge. 21 The applicant in this matter had the benefit of pro bono legal assistance of the solicitor who assisted in the preparation of the amended application. He also had the benefit of pro bono legal assistance of counsel (who also appeared for the applicants in the matters dealt with in the judgment referred to in [18] above). His assistance (and that of the solicitors) has been extensive and thorough. 22 As in those matters, there is no firm indication of any material evidence being available but not yet produced (including by reason of the lack of resources available to the applicant to date) and which would provide any basis for not accepting in this matter the conclusions reached on the material before the Court in the Town of Batchelor 2014 judgment on the hearing of the Bynoe No 2 and related claims referred to in [18] above. 23 It is common ground that the evidence considered by the Court in the Town of Batchelor 2014 judgment is in very large measure the same evidence as presented on this application through the affidavit of Mrs Yates and on the application concerning the status of the Bynoe No 2 and related applications. 24 In this matter, the claim as amended is brought on behalf of "the Traditional Elders and members of" the same nine clans identified in the other claims, being the eight clans identified as "the original Finniss River Brinkin Group" (the FRBG) in the Town of Batchelor 2014 judgment (at [3]) and the Freshwater Crocodile Clan. This claim is in the same form as the proposed amended applications in the Bynoe No 2 and related claims, particularly setting out the same bases and containing the same references to the other clans. The claim area falls within the broader area identified by Mr Petherick in his affidavit of 31 March 2014 filed in the Batchelor No 2 claim and also filed in the Bynoe No 2 claim, and part of the evidence in these interlocutory applications, as the area to which the 20 or so clans (which the Northern Territory identifies as the putative native title claim group) is connected. The affidavits forming part of the claim (and directed to satisfaction of the requirements of s 62 of the NT Act) are in the same form (and made by a number of the same deponents) as those included in the Bynoe No 2 and related claims. 25 Consistently with the reasons in the Town of Batchelor 2014 judgment and in Hazelbane v Northern Territory of Australia [2016] FCA 408 the evidence shows that this is a claim for native title rights and interests by a subset of the putative native title holding group and is contrary to s 61 of the NT Act. The putative native title holding group includes at least 11 other clans that do not form part of the claimant group. These are the Goose Clan, the Barramundi Clan, the Hairy Yam Clan, the Tree Clan, Short Neck Turtle Clan, Water Rat Clan, Darter Bird, Water Snake, Wip Snake, Echidna Clan, and Waniwun Clan. 26 As I concluded in Thardim v Northern Territory of Australia [2016] FCA 407 as the native title determination application is a claim for native title rights and interests by a subset of the putative native title holding group, because that group comprises members of the 20 clans referred to, or alternatively, members of the 25 or 26 clans identified in the affidavit of Mr Petherick of 31 March 2014 referred to above, the claim as presently made cannot succeed. 27 I also concluded in that judgment, the claim by such a group (whether of the FRBG or the FRBG plus one or the larger clan group) on the evidence has no realistic prospect of succeeding as a matter of fact. That reasoning also applies to this claim. 28 In that judgment, I also concluded that the process of authorisation remained flawed. It is the same process of authorisation which is said to have been adopted in this claim. That is a further reason why this claim, as presently presented, would not succeed. 29 Accordingly, the application is struck out under s 84C of the NT Act. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.