In this case, the Court allowed an interlocutory application by Western Australia to dismiss a native title application made by Mr Lawson on behalf of the Badimaya Barna Guda People. The State applied for the application to be dismissed under ss 190F(6) and/or s 84C of the Native Title Act 1993 (Cth) (NTA) due to the application lacking authorisation and being denied registration. The land in question is inland of Geraldton.
Background
The native title determination application concerned ‘Part B’ of the Badimaya Barna Guda application made under s 61 of the NTA. ‘Part A’ was dismissed by orders of 6 February 2020 because of an overlap with the Yamatji Nation native title application which was scheduled for consent determination only a few days after the Badimaya Barna Guda application was filed.
On 19 March 2020, the National Native Title Tribunal determined that the Badimaya Barna Guda application should not be accepted for registration, having regard to s 190A of the NTA.
The Part B proceedings had been the subject of ongoing case management as a result of defects in the application, including the absence of proper authorisation of the claim. During this time the State’s interlocutory application for dismissal was adjourned.
Decision
NTA s 190F(5)-(6)
Section 190F(6) of the NTA provides for dismissal of an unregistered claim if certain conditions in s 190F(5) are satisfied. Having regard to a proposed amended application for determination of native title filed on 15 March 2021, Her Honour was satisfied that the amended application would be unlikely to lead to a different registration outcome, primarily as a result of the continuing lack of proper authorisation. Her Honour held that was no evidence that the Badimaya/Badimia people as a whole had been adequately notified about the claim or given an opportunity to decide whether or not to authorise it, as required by s 251B of the NTA.
NTA s 84C
Having found that the interlocutory application should be allowed under NTA s 190F(5)-(6), Her Honour held that it was not necessary to consider the State’s alternative application under s 84C of the NTA.
Decision
Noting the cumulative effect of the procedural defects, Mortimer J allowed the State’s interlocutory application under s 190F(5)-(6) of the NTA. Her Honour remarked that the outcome may have been different if Mr Lawson had been able to secure legal representation and submitted a proposed amended application prepared by experienced native title lawyers and there were evidence of a more comprehensive attempt to give all Badimaya/Badimia People a chance to authorise the proposed amended claim, even if the application continued to have difficulties meeting the registration test.