Lavender v Commonwealth of Australia [2022] FCA 314

Federal Court of Australia

Lavender v Commonwealth of Australia [2022] FCA 314 File number(s): NSD 1590 of 2019

Judgment of: PERRY J

Date of judgment: 31 March 2022

Catchwords: NATIVE TITLE – application for summary dismissal of claim for declarations that the applicants in their personal capacities hold native title rights to fish in certain New South Wales waters – where applicants also seek injunctive relief to prevent State interference with alleged native title rights to fish and exemplary damages – where applicants rely on High Court decision in Akiba and alleged ancestral connection to Muralug Island, Torres Strait – where applicants failed to clearly define or map the areas where native title rights are claimed (Claim Area) – where applicants seek to join the Illawarra Fishing Aboriginal and Torres Strait Islander Corporation (Corporation) as an applicant in their place – where no approved native title determination over the Claim Area and no prescribed body corporate – where applicants are not native title holders under the Akiba Native Title Determination – application based on misconception that Akiba decided that native title rights to access and take resources offshore for any purpose is recognised automatically throughout Australia – where no cohesive or reasonable argument put forward as to the non-application of NSW fisheries laws – where application has no reasonable prospects of success – application for joinder dismissed – application summarily dismissed

Legislation: Constitution ss 51(xxvi), 109 Federal Court of Australia Act 1976 (Cth) s 31A(2) Judiciary Act 1903 (Cth) s 78B Native Title Act 1993 (Cth) ss 13(1)(a), 55, 56, 57, 61(1), 62(1)(b), 62(2)(a), 62(2)(b), 211(1), 225(a), 225(b) Federal Court Rules 2011 (Cth) rr 16.21, 26.01(1)(a), 26.01(1)(c) Fisheries Management Act 1994 (NSW) s 7