Barker J
In this case, the Court dismissed a claimant application of the Karparn people because the applicant failed to explain how the application would be successfully amended to satisfy the registration test. While the Court struck out the claim, it also noted at [85] that the dismissal does not prevent the applicant from lodging a fresh claim and seeking to address the deficiencies identified in the initial application.
Background
The Kaparn people lodged a claim with the Federal Court on 11 November 2013. A delegate of the Native Title Registrar found the application did not meet a number of conditions under s 190B of the Native Title Act 1993 (Cth) (NTA) and therefore refused registration. An amended application filed on 19 December 2014 again failed the registration test. The conditions not satisfied were:
identification of area subject to native title - s 190B(2) NTA
factual basis for claimed native title - s 190B(5) NTA
prima facie case - s 190B(6) NTA
physical connection - s 190B(7) NTA
The delegate also found that the application did not meet the procedural requirement in s 90C(4) (authorisation and certification). The applicant did not apply to the Native Title Tribunal for reconsideration within 42 days or the Federal Court for a review within 42 days. As a result, the Court put the applicant on notice as to why the application should not be dismissed.
The applicant did not provide further supporting materials or affidavits to the court by the required date and the solicitors who were acting for the applicant ceased prior to the hearing. The applicant applied for a further adjournment but this was refused. The Court then went on to determine two questions:
Question 1. Must the Court ensure the applicant is aware, in advance of any hearing, which particular elements of the application are to be scrutinised by the Court at the hearing of the motion?
The applicant argued that there was a procedural fairness requirement for the Court to communicate their ‘preliminary opinion’ and to identify which elements of the registration test were being considered. The Court held at [30] that it was inappropriate to say the Court had formed a ‘preliminary opinion’ and noted that the registration test was designed to ensure unmeritorious applications did not clog up the court system. The Court also emphasised at [33] that there was a practical onus on the applicant to supply evidence to the Court that the application is likely to be amended in a way that would lead to a different outcome or that there is another reason why the application should not be dismissed. The applicant had previously been granted an adjournment to provide additional materials and had not done so.
Question 2. Is the application likely to be amended in a way that would lead to a different outcome once reconsidered?
The Court concluded at [48] that it was likely the application will be amended in a way that will lead to a different outcome but agreed with the delegate’s decision that the factual basis for the claimed native title was not satisfied as much of the supporting material provided to the delegate was of poor quality, incomplete and at times inconsistent.
As a consequence neither ss 190B(6) or (7) could be satisfied and nothing suggested the delegate's findings about s 190B(4) should be reconsidered.