Griffiths J
Introduction
This case concerned an interlocutory application made by the first and second respondents to summarily dismiss the proceeding pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth). The application was supported by a prescribed body corporate which held native title on behalf of the Baiyungu and Thalanyji people. The respondents contended that the applicant had no reasonable prospect of successfully prosecuting the proceeding and/or that no reasonable cause of action was disclosed.
The principal applicant commenced the proceedings as an originating application filed on 5 May 2020. The application sought an order that the parties to the proposed Gnaraloo Tourism Expansion Indigenous Land Use Agreement (ILUA) must include the applicant. The central question was whether this proceeding should be summarily dismissed. This depended on a proper construction of the Native Title Act 1993 (Cth) (NTA) and its application to current circumstances, as well as the relevant principles applying to an application for summary dismissal.
Consideration
Section 24BD of the NTA draws a clear distinction between circumstances where a particular entity must be a party to a body corporate ILUA, as opposed to circumstances where such an entity may be a party. Griffiths J held that the terms should be given their ordinary meanings. He concluded the applicant’s claim to have a legal right to become a party to the ILUA was unsustainable and unsupported by the legislation.
It was undisputed that the principal applicant was a “grantee party” and had a right to negotiate under the provisions of Subdivision P of Division 2 of Part 3 of the NTA (Subdiv P). His Honour accepted that the respondent parties were not obliged to carry out the proposed Notices of Intention to Take in relation to the expansion of two existing tourism lease areas. Before the applicant’s land could be compulsorily acquired, the negotiating parties would be required to negotiate in good faith with a view to obtaining the third respondent’s consent. As it stood, the compulsory acquisition had been overtaken by the ILUA process as the relevant proposed future act with respect to the relevant land. If the ILUA was not executed nor registered, it would be open to the parties to decide to pursue the initial compulsory acquisition proposal before granting the principal applicant the expanded leases. If this were to occur, there would need to be compliance with Subdiv P, otherwise it would be invalid under s 28 of the NTA.
His Honour also rejected principal applicant’s submission that summary dismissal was inappropriate given the complexity of the issues of law and the alleged disputed facts. This was because:
The issues of statutory construction, although complex, were capable of being resolved without a full trial.
Copies of all the relevant agreements and proposed agreements were put in evidence and were capable of being construed.
His Honour did not accept that there were any other disputed facts relevant to the interlocutory application warranting a full trial.
None of the matters raised by the applicant were sufficiently compelling to avoid summary judgment being granted against it.
Conclusion
Having considered all of the above, His Honour held that the interlocutory application to summarily dismiss the amended originating application should be upheld. The court ordered that all parties were responsible for their own costs in line with s 85A of the NTA.