Whalebone v State of Western Australia

THE APPLICATION 9 The applicants represent the Bindurrna people. The application was filed in the Federal Court on 14 January 2005. The application, which lies in-between the Ngarluma Yindjibarndi determined area and the Kariyarra claim (WAD 6169/98) in the north-west Pilbara, covers approximately 1,500 square kilometres of land. 10 The applicants are not currently represented by the representative Aboriginal/Torres Strait Islander body for the area (Yamatji Marlpa Bama Baba Maaja Aboriginal Corporation) or otherwise legally represented although counsel has filed submissions on behalf of the applicant in relation to the s 190F(6) issues which have been raised by the court with the parties.

First registration test 11 The Bindurrna application first underwent the test for registration in s 190A of the NTA on 9 September 2005. 12 The conditions of the registration test are set out in section 190B and 190C of the NTA. Subsection 190A(6) provides that the Registrar must be satisfied that the application meets all of the conditions in s 190B (which deals mainly with the merits of the claim) and s 190C (which deals with procedural and other matters) before the claim in the application can be accepted for registration. 13 The delegate of the Registrar decided not to accept the application for registration because it did not pass the authorisation condition in s 190C(4). The delegate did not consider the application against the remaining conditions in s 190C and s 190B due to findings that the shortcomings in the authorisation process were so fundamental that any consideration of the application against the remaining conditions was not warranted. 14 No further steps in relation to the application have been taken by the applicants since that time and the application has never been amended.

Second registration test 15 Because the Bindurnna 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 21 September 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 application was not accompanied by an affidavit that complied with s 62(l)(a) of the NTA and the delegate was not satisfied that the application was accompanied by the document prescribed by s 62(l)(a) of the NTA; (ii) Subsection 190C(4) - the delegate was not satisfied that the application was certified by the representative Aboriginal/Torres Strait Islander body for the application area and was not satisfied that the applicant was authorised to make the application and to deal with matters arising in relation to it by all the other persons in the native title claim group; (iii) Subsection 190B(5) - the delegate was not satisfied that the factual basis on which it was asserted that the native title rights and interests claimed exist was sufficient to support the assertions in subs 190B(5)(a), (b) and (c) of the NTA; (iv) 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 (v) 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. 16 Since the applicants were notified of the Registrar's decision, no application seeking leave to amend the Bindurrna application has been filed; nor has an application for review of the Registrar's decision been made.

Submissions filed by the Applicants 17 The applicants, by counsel, Mr Marsh, filed brief submissions in opposition to the application being dismissed. Those submissions were directed primarily to s 190F(6)(b). 18 It was submitted that the provision required the Court to take into account issues of fairness and opportunity and that in the present application: (a) The applicants have had no significant legal assistance to date; (b) The s 136G(3) report demonstrates the difficulty the applicants have in dealing with the procedures before the Court and the Tribunal; (c) The applicants have not yet been able to put their case at its best before the Court; (d) There is now a reasonable prospect that the applicants will be able to present their case more effectively in the near future; and (e) The applicants are not legally represented, but there is a strong probability of solicitors being appointed and of funding being available. 19 Although no evidence was provided in support of the submissions, it was accordingly submitted that the application be adjourned to December at which time a better assessment of the merits may be possible. 20 Alternatively, it was argued that the resolution of the issues raised by s 190F should not be undertaken without a full examination of the evidence and an opportunity to call witnesses and cross examine them. 21 I did permit the applicants to file more substantive submissions before determining the position. However in my view nothing in the submissions of the applicants raises any more than generalised hopes and possibilities. 22 There is no clear evidence that an amended application (at all) will be filed, let alone one that is likely to lead to a different outcome once considered by the Registrar. 23 It can not be argued that the applicant has not had the opportunity to address the issue and provide evidence and submissions in support of the likelihood of a different outcome. 24 It is open to the Court to dismiss the matter 'on its own motion' - this just means that it has raised the issue itself. Directions have been made in relation to dismissal of the application and the parties have been given the opportunity to provide submissions. French J on 18 December 2007 ordered that 3. The applicants, the State and any other interested party are to file submissions no later than 7 days prior to the review hearing in relation to the disposition of the application having regard to the outcome of the registration test. 25 In relation to the suggestion that there should be further evidence, the applicant has not specified any further material at all that would be relied upon.

Submissions filed by the First Respondent (the State) 26 The State advises that the National Native Title Tribunal has attempted, and will continue to, mediate a dispute between the Bindurrna claimants and the neighbouring Kariyarra claimants (WAD 6169/98) in relation to land over which both groups claim an interest. The Tribunal (in its regional report prepared for the Pilbara regional directions hearing 30 June 2008) has advised that, unless resolved, the dispute may affect the negotiated resolution of both claims. 27 As the State has not been directly involved in the Tribunal's mediation efforts, it is not aware of all of the details of the dispute between the Bindurrna and Kariyarra applicants. Accordingly, it is not in a position to make an informed submission to the Court as to whether or not a valid 'other reason' (s l90F(6)(b) of the NTA) currently exists not to dismiss the Bindurrna application. 28 There is simply no basis for concluding that there is any 'other reason'.

CONCLUSION 29 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. 30 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. 31 There is no other reason why the application should not be dismissed. 32 The application will be dismissed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: Dated: 12 November 2008 Counsel for the Applicants: P Marsh

Solicitor for the Applicants: Bruce Havilah & Associates

Solicitor for the First Respondent: State Solicitors Office

Date of Judgment: 12 November 2008