Collier J
In this matter, the Court dismissed a native title application lodged by Mr Budby on behalf of the Barada Barna People for abuse of process under r 26.01(1)(d) of the Federal Court Rules 2011 (Cth). The application for dismissal was brought by respondents, the state of Queensland (the state), and the North Queensland Land Council (NQLC).
This particular native title application has a long and chequered history. A number of Indigenous respondents represented by the NQLC (‘the Wiri respondents’) contended that the current proceeding is the seventh incarnation of this claim, and that the matter has made little real progress since its registration. The claim subject to these proceedings was registered in 2009.
The native title party disputed that this matter is the seventh incarnation of this claim. However, they did not dispute that the apical ancestors named in the native title application were also named in earlier applications involving the Barada Barna, Kabalbara and Yetimarala claim groups, and that the geographical boundaries the subject of the claims are substantially the same.
The native title party caused significant delay throughout the proceedings and failed to comply with evidentiary timetables of how the current claim group was identified, including the changes from previous compositions of the earlier Barada Barna, Kabalbara and Yetimarala claim groups. The native title party failed to provide reasons for any differences in the composition of the earlier claim groups, including a genealogy of an apical ancestor (claimed to be Wiri by the Wiri respondents), and an explanation as to why that ancestor was identified as an apical ancestor in the Barada Barna clan. They had also obtained various anthological reports to support their application, without success.
Accordingly, NQLC and the state complained that the native title application claim group was improperly composed, and did not satisfy s 61 of the Native Title Act 1993 (Cth). They also submitted that the native title party should be required to register a new claim, and not permitted to amend its current claim. Therefore, they sought for the current claim to be dismissed.
The native title party denied the complaints. They argued, among other things, that: (1) their present claim was properly formulated and authorised, (2) while they had not yet obtained all the necessary evidence for the purposes of successfully prosecuting their claim, the relevant evidence had been sought, (3) the registration of the claim implies that it is a credible one, and (4) they have reasonable prospects of successfully prosecuting their claim, and ought to be permitted to do so.
The Court rejected the native title party’s submissions that it has reasonable prospects of successfully prosecuting its claim within the meaning of r 26.01(1)(a) of the Federal Court Rules 2011 (Cth). The Court found that the native title party has repeatedly briefed expert anthropologists in what may be an ultimately fruitless endeavour to identify fundamental anthropological information upon which the native title application can progress, namely the composition of the native title claim group and the proper boundaries of the native title application.
In addition, the Court could not be satisfied that the continued reformulation of the native title application is at an end, now or in the foreseeable future. The Court considered the apparent inability of the native title party to adduce evidence to support the claim in its current form, despite repeated attempts over a number of years, is a proper basis for the Court to conclude that the native title party lacks reasonable prospects of successfully prosecuting its claim, or that the registration of the native title claim is an indication that the claim is a sufficient reason not to dismiss the claim.
In addition, the Court found that it is not in the interests of justice to the respondents, or in accordance with the overarching purpose of civil litigation in this Court as prescribed by s 37M of the Federal Court of Australia Act 1976 (Cth), to permit this proceeding to continue indefinitely while the native title party continues to attempt to construct its claim. Accordingly, the Court dismissed the claim for abuse of process pursuant to r 26.01(1)(d) of the Federal Court Rules 2011 (Cth).