Mansfield J
In this matter, the Court considered an application by John Graham and others (Ngadju Applicants) for an order striking out or summarily dismissing the Naley Native Title Claim on the basis that the Naley Claimants are a subset or subgroup of the Mirning People.
The respondent is the State of South Australia.
Background
The Ngadju Applicants are the applicants on behalf of the Ngadju People in their claim for determination of native title against the State of Western Australia (the Ngadju Claim). The Ngadju Claim relates to an area of land in Western Australia proximate to the South Australian/Western Australian border. The Naley Claim partially overlapped with the Ngadju claim in Western Australia, the Mirning claim in Western Australia and the Far West Coast Claim in South Australia.
Under s 67 of the Native Title Act 1993 (Cth) (NTA), the Federal Court is required to deal with overlapping native title claims in the same proceeding. Section 68 of the NTA directs that there be only one approved determination of native title in relation to a particular area. The overlapping Naley Claim thus has significance for the progress and resolution of the three other long-standing claims.
The Ngadju Applicants, supported by the Far West Coast applicants and by the State of South Australia, applied to have the Naley Claim struck out under s 84C NTA as it fails to comply with requirements of sections 61, 61A or 62 of the NTA because:
the Naley Claim is not shown to have been made by a person authorised by all the persons who are said to hold native title by that native title claim group;
the Naley Descendants as a group are at best a subset or a subgroup of the Mirning People comprising the relevant native title claim group; and
the delay in making the Naley Claim is so great that, having regard to the prejudice caused and likely to be caused to the Ngadju Applicants, the Naley Claim should be struck out.
Consideration
Mansfield J affirmed that an application will breach s 61 of the NTA if it is not made by a native title claim group, consisting of ‘all the persons who, according to their traditional law and customs, hold the common law or group rights comprising the native title claim.’ His Honour emphasised that a court will not readily reach this conclusion, but may strike out an application where it is clear that the claimant is only a ‘subgroup or subset of a native title claim group’.
Mansfield J found hat the Naley descendants did not seek to claim native title interests exclusively, but instead as part of a wider native title claim group comprising the Mirning People. In their application and proposed amendment, Naley descendants recognised that other Mirning People had native title rights and interests in the claim area and that the Naley descendants are part of the Mirning People.
The Court determined that Naley Claim must be dismissed as the evidence confirmed that it was made on behalf of a subset or subgroup of the Mirning People and was not authorised by the wider claim group.
Mansfield J found it unnecessary to deal with the Ngadju Applicants’ other contentions.
Orders
The Naley Claim be dismissed.