This matter involved an application by Mr Sheldon Prior to review the Native Title Registrar's decision to register six ILUAs. The ILUAs cover 200,000 square kilometres of Noongar land and waters in South West of Western Australia, from Geraldton on the west coast to Esperance on the south coast. The application was dismissed with costs. The South West Aboriginal Land and Sea Council Aboriginal Corporation (SWALSC), Western Australia, the Commonwealth and the Native Title Registrar were the respondents in the matter.
Background
In October 2018, the Registrar made the decision to register the 6 ILUAs, which had been negotiated between the Western Australian government and SWALSC. The relevant area has been the subject of numerous unsuccessful native title claims by Noongar people. SWALSC acted on behalf of Noongar people in the claims through multiple community authorisation meetings. The ILUAs form a settlement that included a $1.3 billion package of benefits, in return for the Noongar people consenting to a negative determination and surrender of all native title rights and interests over the area. The ILUAs thereby were intended to settle all present and future native title claims by the Noongar people.
The registration of the ILUAs was challenged earlier in McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) (2019) 374 ALR 329 (McGlade), on the basis that the ILUAs had not been properly authorised by all Noongar people. The decision was rejected by the Full Federal Court.
Submissions
Mr Prior submitted that SWALSC had breached natural justice and procedural fairness in relation to the authorisation meetings held. He argued that SWALSC did not disclose the negative aspects of the ILUAs, and they were authorised by only five per cent of Noongar people eligible to vote. Mr Prior stated some Noongar people were locked out of meetings, or otherwise excluded by travel difficulties, incarceration, or homelessness.
Mr Prior made broader submissions on Noongar sovereignty. He challenged the Native Title Act 1993 (Cth), stating ‘for the Native Title Act to be valid the British would have to have come to Western Australia and Noongar Nation by settlement or colonisation but this did not happened. They came by force and invasion’ [3]. Criminal conduct was alleged in respect of the ILUAs and theft of Noongar land and minerals.
The respondents sought for the application to be summarily dismissed, as well as submitting that the relief sought was well beyond the court's power.
Decision
McKerracher J held that Mr Prior’s submissions concerning the SWALSC meetings were dealt with in McGlade and noted that Mr Prior was seeking to reverse the ILUAs determinations which have been upheld by the Full Federal Court. Concurring with the respondents, this was deemed outside of the court's power and the scope of the application made.
Mr Prior’s other grounds, challenging the Crown’s acquisition of Western Australia, were held to be incomprehensible and non-justiciable. Further, it was stated that precedent has repeatedly rejected Indigenous sovereignty in Anglo-Australian law. For numerous reasons, McKerracher J stated Mr Prior could not rely on sovereignty to support his claim against the Registrar.
His honour listed the exceptional circumstances where summary dismissal is permitted under s 31A of the Federal Court Act of Australia 1976 (Cth). It was concluded that no grounds in Prior’s application express an appropriate issue of law or fact, and the application was entirely dismissed.