FEDERAL COURT OF AUSTRALIA Thomas v State of Western Australia [2011] FCA 346 Citation: Thomas v State of Western Australia [2011] FCA 346 Parties: PHYLLIS THOMAS & ORS v STATE OF WESTERN AUSTRALIA & ORS File number: WAD 6069 of 1998 Judge: MCKERRACHER J Date of judgment: 12 April 2011 Catchwords: NATIVE TITLE - Court's discretionary power to dismiss an application on its own motion where application has failed registration test Legislation: Native Title Act 1993 (Cth) s 190F(6) Cases cited: Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1 Strickland v Western Australia [2010] FCA 272 Date of hearing: 30 March 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: S Kilpatrick Solicitor for the Applicant: Goldfields Land and Sea Council Counsel for the State of Western Australia: T Creewel Solicitor for the State of Western Australia: State Solicitors Office Counsel for Various Mining/WAFIC: M Watts Solicitor for Various Mining/WAFIC: Hunt & Humphry Counsel for Various Local Government Interests: R Mascarenhas Solicitor for Various Local Government Interests: Minter Ellison IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6069 of 1998 BETWEEN: PHYLLIS THOMAS & ORS Applicant AND: STATE OF WESTERN AUSTRALIA & ORS Respondents JUDGE: MCKERRACHER J DATE OF ORDER: 12 April 2011 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application will not be dismissed. 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. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6069 of 1998 BETWEEN: PHYLLIS THOMAS & ORS Applicant AND: STATE OF WESTERN AUSTRALIA & ORS Respondents JUDGE: MCKERRACHER J DATE: 12 april 2011 PLACE: PERTH REASONS FOR JUDGMENT introduction 1 These reasons address a motion instigated by the Court to consider whether the application for native title in this matter should be dismissed pursuant to s 190F(6) of the Native Title Act 1993 (Cth) (the Act). 2 As noted in Strickland v Western Australia [2010] FCA 272 (at [4]-[10]): 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. BACKGROUND 3 The current application was lodged with the National Native Title Tribunal (the Tribunal) on 11 March 1996. After amendments made to the Act, the application became a proceeding in this Court on 30 September 1998. 4 In Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1 Lindgren J dismissed part of this application which covered areas subject to the Wongatha decision. Subsequent amendments of the application were made pursuant to leave granted by Lindgren J in February 2008. 5 The application now covers 2548.89 square kilometres of land and waters within the Goldfields region of Western Australia. 6 The registered native title representative body for the Goldfields region is the Goldfields Land and Sea Council Aboriginal Corporation (GLSC) (see s 203AD of the Act). 7 As a result of the lodgement of the application with the Tribunal on 11 March 1996, an entry with respect to the application was placed by the Registrar on the Register of Native Title Claims (the Register). The current application was not amended to comply with the additional criteria introduced into the Act by the 1998 amendments. As a result, on 23 April 1999, a delegate of the Registrar found that the application did not meet the criteria set out in s 190C(2) and s 190C(4) of the Act. The entry relating to the application was removed from the Register. 8 As originally lodged, this application partially overlapped with the former Wongatha application. No amendments to the application were made between 1998 and 2007 due to the operation of the condition in s 190C(3) of the Act which prevented this application from being accepted for registration while the overlap with the former Wongatha application remained on foot. 9 After the further amendment of the Act in 2007, the application was required to be considered again by the Registrar against the criteria in s 190B and s 190C of the Act. 10 On 6 February 2008, an amended application was filed. The main purpose of the amendment was to effect a substantial reduction in the area covered by the application. It now coincides only with a portion of land that is called the Melrose Pastoral Lease. The amendments to the area also removed overlaps between it and five other native title applications. As a result, on 29 September 2009, another delegate of the Registrar decided that the application as amended satisfied some of the conditions that the previous delegate had found were not met but did not meet the requirements of others. 11 As to the likelihood of successful amendment, the applicant has explained specific details of legal and research strategy being undertaken by the GLSC in relation to the application and adjacent applications/areas within the northwest Goldfields region. The data has been set out in a detailed tabulated form but does not need to be repeated in light of the conclusion I have reached. 12 However, since the applicant's submissions were received, they have advised that a further tranche of research in the Lake Darlot and Melrose Pastoral Lease region was conducted in November 2010. This research indicated that the boundary between the proposed new applications in the Lake Darlot area and Barwidgee area may need to be varied. Further research is planned for June 2011. 13 The applicant argues that subject to completion of the final tranche of research, together with continued availability of funding and instructions to proceed, GLSC will assist a duly authorised applicant on behalf of Mantjintjarra Ngalia people to file a new application in the Lake Darlot area including the Melrose Pastoral Lease which will encompass the current application area. The GLSC is instructed that if such a new claim is duly authorised and filed then subject to certain conditions that are acceptable to the Mantjintjarra Ngalia claimants, leave to discontinue the current application will be sought. Although the stated aim of GLSC on behalf of the native title holders for the area is to achieve the authorisation and filing of a new application in the Lake Darlot area, such a result cannot be guaranteed as it will ultimately be a matter for instruction from the claimants. 14 GLSC also represent the adjacent Mantjintjarra Ngalia native title application in the area immediately to the east of the Lake Darlot (Melrose) area which is the Mantjintjarra Ngalia # 2 which was accepted for registration on 31 March 2009. CONCLUSION 15 There appears, from the detailed account of all steps in train in this matter, to be some genuine advancement being achieved. Much of the previous delay seems to have been, at least in some measure, beyond the control of the applicant and there is a positive plan and strategy in train. It appears that there is a real chance the shortcomings identified above are capable of being overcome thus leading to registration. It seems, therefore, that there is a real chance that the application could be amended in such a way that it would lead to a different registration test outcome. 16 I am prepared, at this stage at least, to accept this submission. 17 The applicant also advances 'other reasons' which, in the circumstances and in view of my acceptance of the primary submission, are unnecessary to examine. 18 The application will not be dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 12 April 2011