Background
On 14 January 2021, the applicant filed a native title determination application (Jardu Mar Claim). A delegate of the Native Title Registrar considered the application for registration against conditions contained in s 190B and s 190C of the Native Title Act 1993 (Cth) (NTA). On 3 March 2021, the delegate determined not to accept the application for registration pursuant to s 190A of the NTA, since it did not satisfy s 190B(4)-(8) or s 190C(3)-(4) of the NTA.
On 14 April 2021, the applicant applied to the National Native Title Tribunal (NNTT) seeking reconsideration of the decision pursuant to s 190E(1) of the NTA. On 30 September 2021, a member of the NNTT determined that the claim should not be accepted for registration as it did not satisfy all the conditions in s 190B(4)-(8) and s 190C(3)-(4) of the NTA. On 15 October 2021, the State filed an interlocutory application seeking that the claim be struck out due to the following:
S 84(C) of the NTA: the Jardu Mar Claim did not comply with the requirements in s 61(1) of the NTA.
S 31A(2) of the Federal Court of Australia Act 1976 (Cth): The Jardu Mar Claim should be dismissed because there was no reasonable prospects that the applicant established the claim was properly authorised within the meaning of ss 61(1) and 251B of the NTA.
S 190(F) of the NTA: The Jardu Mar Claim was not accepted for registration on initial consideration by the Registrar or on subsequent consideration nor was it amended since the reconsideration decision.
The State’s interlocutory application was supported by persons who were applicants in a native title determination application which overlapped the boundaries of the area claimed by the Jardu Mar Claim.
On 15 December 2021, the applicant filed an interlocutory application supported by an affidavit of Linden Brownley. The orders sought by the interlocutory application were as follows:
The applicant has leave to amend its native title determination application
The interlocutory application filed by the State on 18 October 2021 be stayed (incorrectly stated by applicant, refers to interlocutory application filed on 15 October 2021).
Decision
His Honour was satisfied that the Jardu Mar Claim should be dismissed pursuant to s 190F(6) of the NTA and therefore was not required to address either the s 84C(1) strike out ground nor the s 31A(2) of the summary dismissal ground. However, the Court was still required to inquire whether it had the power to dismiss the claimant application pursuant to the conditions in s 190F(5) of the NTA.
His Honour was satisfied that all avenues for reconsideration were exhausted and that given the time for any application review specified by r 34.109 of the Federal Court Rules 2011 (Cth) had expired.
Because the originating application had not been amended since it was considered by the Registrar, the Court inquired as to whether it was likely to be amended in a way that would lead to a different outcome once considered by the Registrar. The applicant did not tender evidence persuading the Court that the originating application was unlikely to be amended in a way that would lead to a different outcome. There was some evidence in the affidavit of Linden Brownley to assist the applicant in this respect, however, the applicant disavowed reliance on that affidavit in relation to the State’s interlocutory application.
His Honour made particular reference to the applicant failing to meet requirements of s 190B(5) of the NTA. Namely that, obstacles found by the delegate and NNTT were numerous and were not capable of being rectified by an amendment to the originating application. The Court also considered that there was no evidence of an intent to cure the factual deficiencies that arose pursuant to s 190B(5) or (6) of the NTA. Thus, the Court concluded the application did not meet the criteria of s 190F(6) of the NTA.
The Court then went on to consider s 190F(6)(b) of the NTA. His Honour was satisfied, considering all the circumstances, there was no other reason why the application should not be dismissed. In coming to this conclusion, Bromberg J accepted the State’s submissions that the continued presence of the application had the potential to cause significant prejudice and delay to the progression of at least two of the seven registered native title determination applications which overlapped the Jardu Mar Claim.
Bromberg J rejected the State’s interlocutory application being stayed which was sought by the principal applicant since his Honour did not find any utility in granting the stay for the purpose which was sought. In coming to this conclusion, the Court took into account the applicant’s delay in seeking a stay, their lack of intent to amend the originating application and the likely prejudice to be imposed upon the State.