Barker J
In this case, the Court ordered that a native title claim made by sub-group without the authorisation of the wider group be struck out under s 84C of the Native Title Act 1993 (Cth) (NTA). Alternatively, dismissed either pursuant to r 26.01(1)(c)or r 5.23(1)(b) of the Federal Court Rules 2011 (Cth).
The claim referred to the DjaberaDjabera People and was first conceived in 1996, before the NTA required a claimant application to be authorised by the claimant group. The application was amended in 1999 and the claim group changed to 85 named people. A further amended application was made in 2012. Justice Barker had previously dismissed a similar strike out application by the Kimberley Lands Council in MT (deceased) v State of Western Australia [2013] FCA 1302 but warned that should the case continue to languish and fail to progress, the case may be reconsidered. The proceedings were listed for trial on or near country in the Kimberley region in 2015.
An anthropological report commissioned by the Court in 2003 considered the land area the subject of the claim comprised land traditionally associated with 'Jabirr Jabirr people', 'Nyulnyul people' and Nimanbur people, that DjaberaDjabera was an obsolete form of Jabirrjabirr and the applicant group was not fully representative of all Jabirr-jabirr and Nyul-nyul or Nimanbur peoples likely to have rights to a native title claim. Key members of the DjaberaDjabera People claim group accepted the report.
At [54] Barker J concluded that the 10 named applicants in the 1999 amended claim were not collectively authorised by all people who were recognised as possibly having traditional rights and interests in the claim area and the application should be struck out.
Similarly, the current form of the Djabera Djabera application was held to be untenable. Justice Barker accepted the submissions of the Kimberley Land Council that the composition of the claimant group is flawed and noted the long history of inaction by the applicants since receiving the anthropological report 10 years ago, the acknowledgement of the applicants' representative that the application requires significant amendment and the applicants' failure to comply with the Court's order to progress the matter to trial.