Charlesworth J
Background
This case involved a native title application made under s 13 of the Native Title Act 1993 (Cth) (NTA) on behalf of the Barngarla People (the Barngarla SEP claim). The Barngarla SEP claim was filed on 19 February 2020, and wholly overlaps with a claim filed on 21 June 2016 (the Nauo No 2 claim). By an interlocutory application filed on 14 April 2020, the State of South Australia applied for orders that the Barngarla SEP claim be struck out or summarily dismissed.
The State’s submissions
The State contended that the Barngarla SEP claim should be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) or r 26.01 of the Federal Court Rules 2011 (Cth), either on the basis that it enjoys no reasonable prospects of success or on the basis that it constitutes an abuse of the Court’s processes. The various bases for strike-out or summary dismissal all proceeded from the premise that the applicant sought to re-agitate the same issues that had been finally determined in Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724 (‘Croft’).
The Applicant’s submissions
The Barngarla applicant submitted two alternate factual bases for the claim. Firstly, that the Barngarla people occupied the Port Lincoln area at sovereignty under Barngarla traditional laws and customs. And secondly, that the Barngarla people acquired native title rights and interests by a process of conjoint succession derived from the traditional laws and customs of the Nauo people. The submitted that the applicant in Croft could not reasonably have been expected to adduce evidence about the traditional laws of the Nauo peoples as they related to the acquisition of rights in land by succession. It was also submitted that there was no evidence that any shortcomings in the approach taken by the claimant in Croft was the result of any forensic decision made by the Barngarla people or their legal advisers in earlier proceedings.
Consideration
With respect to the applicant’s first submission, His Honour concluded that there was no basis to challenge the findings made by Mansfield J in Croft. With regard to the second submission, His Honour found that when read in their proper context, the reasons in Croft must be understood as a rejection of the conjoint succession claim on the grounds the applicant had not discharged its burden of proof. As a result, the claim as it related to the Port Lincoln area had been dismissed by an order made on 23 June 2016.
Conclusion
For the above reasons, the Court was satisfied that the Barngarla SEP claim constituted an abuse of the processes of the Court and the claim was summarily dismissed in accordance with r 26.01(1)(d) of the Federal Court Rules 2011 (Cth).