In this matter, Mansfield J ordered that the application of the respondent be struck out.
The native title application of the Warai and Kungarakany Groups (first applicants) in NTD 6057 of 2001 (Town of Batchelor No 2) was lodged over the Town of Batchelor in the Northern Territory. The Finniss River Brinkin Group (FRBG), which comprises eight clans belonging to three different language or other groups, later joined as respondents to the application. Application NTD of 2005 (Town of Batchelor No 2) was then brought on behalf of three clans who are members of the FRBG (Emu Clan, Blue Tongue Lizard Clan, King Brown Snake Clan), seeking a determination of native title in respect of the same lands and waters as the previous application.
The No 2 application was amended to remove the King Brown Snake Clan as one of the clans comprising the native title claim group, and amended the members of Emu Clan so as to include Thomas Edward Petherick as a member and Captain Wodidj as both an applicant and a member, May Stevens as a member of the Blue Tongue Lizard Clan, and included an additional person as an apical ancestor of the Blue Tongue Lizard Clan.
The Court ordered that the No 1 and No 2 applications be heard together.
The first applicants sought orders under s 84C(1) of the Native Title Act 1993 (Cth) (NTA) that the No 2 application, as amended, be struck out. This provision provides that if an application under the NTA for determination of native title does not comply with ss 61, 61A or 62, a party to the proceeding may apply to the Court to strike it out. Their three principle contentions were:
That several of the members have not been authorised by all members of the native title claim group as described to bring the No 2 application
Members of the Emu Clan and Blue Tongue Lizard Clan are not a native title claim group and consequently do not hold the common or group rights and interests
The second applicants did not comply with the requirements to provide affidavits
Mansfield J reinforced the general approach that any application to summarily dismiss a proceeding ‘should only be in very clear cases’ (at [11]). Thus, the applicants seeking to strike out the No 2 application have the onus and burden of establishing a very clear case of a lack of ‘proper authorisation’, which Mansfield J quotes as ‘fundamental to the legitimacy of native title applications’ (at [13]).
Mansfield J stated striking out an application under s 84C occurs ‘only where an application is obviously without merit, that is, where there is no realistic prospect on the material before the Court of the authorisation being shown to have existed at the time that it was purportedly granted…’ [15].
His Honour found that the application should be struck out for three main reasons. Primarily, Mansfield J found that there was clear evidence that Captain Wodidj does not claim to be a member of the native title claim group which has rights and interests in the Batchelor area, rather his rights and interests are in a separate area outside of the scope of the relevant claim. As s 61(1) requires that each of the named and authorised applicants to the No 2 application be included in the native title claim group, yet Captain Wodidj is not.
Secondly, there was no evidence that Thomas Petherick was authorised either by a traditional meeting of the members of the identified native title claim group (Emu Clan or Blue Tongue Lizard Clan) to bring an application on their behalf. There was no demonstration of any traditional form of decision-making by the native title claim group in terms of s 61(1) in relation to him.
Thirdly, Mansfield J held that the native title claim group is inappropriately confined to the members of the Emu Clan and Blue Tongue Lizard Clan; as these clans a mere ‘subset’ of the FRBG, and every member of the FRBG claims to have native title rights and interests in the Batchelor claim area, with ‘particular responsibilities for particular sights’ (at [36]).
Mansfield J additionally ordered that the second applicant has 14 days to apply by motion for further orders.