Mansfield J
In this matter the Court refused various applications to substitute people as the named applicants to various native title claims and dismissed each application for a determination of native title.
The issues related to six claims concerning the recognition of native title rights and interests over the Town of Batchelor in the Northern Territory and an application of the Northern Territory for these claims to be dismissed under s 84C(1) of the Native Title Act 1993 (Cth) (NTA) or under r 26.01 of the Federal Court Rules 2011 (Cth).
Background
In 2001, a claim was made over the Town of Batchelor on behalf of eight clans collectively known as the Finniss River Brinkin Group (FRBG) - the Batchelor No 1 claim. In 2005 a claim was made over the Town of Batchelor by Mr Petherick and others on behalf of three of the FRBG clans - the Batchelor No 2 claim.
In 2006 a third claim was also made over the Town of Batchelor by Margaret Daiyi and others on behalf of the Rak Mak Mak Marranunggu People - the Batchelor No 3 claim.
Batchelor No 3 claim
To resolve disputes between the three competing claim groups a preliminary question was listed to decide whether the applicant in the Batchelor No 3 claim represented a native title claim group who have native title rights and interests in the Town of Batchelor, subject to any issues of extinguishment. After part hearing of the preliminary question the Batchelor No 3 claim was discontinued on terms that the claimants should not be permitted to issue a further native title application over the Town of Batchelor or apply to be a party to either the Batchelor No 1 claim or the Batchelor No 2 claim inconsistent with those two claims: Hazelbane on behalf of the Warai and Kungarankany Groups v Northern Territory of Australia [2011] FCA 1186.
Batchelor No 2 claim
In 2008 the Batchelor No 2 claim was ordered to be struck out, subject to giving the applicant a further limited time within which to endeavour to restore the claim: Hazelbane v Northern Territory [2008] FCA 291 (the Town of Batchelor 2008 judgment).
In 2014, the Court ordered that the previous order to strike out the Batchelor No 2 claim made on 7 March 2008 should take effect forthwith and that the applications to amend that claim be refused: Hazelbane v Northern Territory [2014] FCA 886 (the Town of Batchelor 2014 judgment). That order left the Batchelor No 1 claim as the only claim in relation to the Town of Batchelor.
In 2015 Mr Petherick sought to revive his status as a respondent to the Batchelor No 1 claim, asserting on his behalf and on behalf of others that he was entitled to do so as “Elder Custodian to Sacred Sites and Rock Art Sites, Traditional Owner to Land”. That application was struck out by orders made at the same time as this judgment: Hazelbane v Northern Territory of Australia [2016] FCA 408.
The present claims
The next steps in the sequence of events were the commencement of six separate claims in 2005. The management of those claims was not progressed while the status of the Batchelor No 2 claim and the Batchelor No 3 claim were determined.
Five of the six claims list nine clan groups as claimants. One claim lists only eight of the nine clan groups as claimants.
In 2015 the Northern Territory government sought orders for the summary dismissal of the six claims on the basis that each application to replace an applicant and to amend the application itself should be refused because in each case there was no prospect of there having been a compliant process with the NTA, and alternatively, even if the proposed replacement/amendment were permitted, each application in any event should be summarily dismissed.
Each of the six claimant applicants sought to replace a deceased person or persons as part of the applicant, and to amend the native title determination application, including by changing the composition of the claim group (and in other respects). It was accepted that in each of the claims those issues were common, with evidence in each of them to be evidence in the others.
The parties agreed that all material was admissible in relation to each and all of the applications and was relevant to each of their respective positions.
Composition of the claim groups
Section 84C(1) of the NTA permits the Court to strike out an application if it does not comply with ss 61, 61A or 62 of the NTA.
Justice Mansfield noted that an order to strike out the claim should be approached with caution and proceedings should only be dismissed where the claim is untenable upon the version of the evidence favourable to the applicant (and generally without any weighing of conflicting evidence or of the inferences which might be drawn from it).
In determining whether the applications should be struck out, Justice Mansfield noted that there is considerable authority that a claim for native title rights and interests by a subset of the native title holding group is contrary to s 61 of the NTA and cannot succeed. In reviewing the relevant evidence, Justice Mansfield examined the affidavit of Mr Petherick, and anthropological evidence from the Batchelor No 2 claim to determine that there were between 20-25 clans identified as asserting native title rights and interests in the relevant area.
Each of the claimants in the present claims comprises either eight or nine clans. Their evidence was focused on the propriety of the authorisation process for the proposed amended applications. The Court noted that no other anthropological evidence was relied upon and there was no specific evidence presented to support the claims that that the eight or nine clans constituted the native title claim group rather than the 20-25 clans identified by Mr Petherick. Accordingly, Justice Mansfield accepted the evidence of the Northern Territory government and the Town of Batchelor 2014 judgement and found that the claim groups in the present cases are a subset of the native title holding group and thus contrary to s 61.
Evidence of connection
The second basis for summarily dismissing the six claims was a lack of evidence of connection based on the findings in the Town of Batchelor 2014 judgment and the commonality of the six claims with that claim.
On this basis, Mansfield J was satisfied that the six claims did not have any real prospect of succeeding.
Authorisation
The Court found that the steps described for authorising the proposed applicants to bring the claims did not demonstrate that the composite claim groups (of eight or nine clans) each collectively met and authorised the making of the claim.
Conclusion
The six applications to amend the applications were refused and each of the applications dismissed.