Mansfield J
In this matter, the Court dismissed an application for native title by the Kamu people for an area of land included in the Malak Malak Aboriginal Land Trust situated in the vicinity of Nauiyu (Daly River).
The respondents to the claim were:
the Northern Territory of Australia;
Biddy Yingguny;
Malak Malak Aboriginal Land Trust;
Albert Myoung; and
Telstra Corporation Ltd.
History of the application
The Kamu claim commenced in 1998 and had a long history which was recited by Mansfield J. The important features of this history are:
The claim was never registered by the National Native Title Registrar under the Native Title Act 1993 (Cth) (NTA) for various reasons including non-compliance with ss 190C(2) or 190C(4) and ss 61 and 62 of the NTA.
The claim was referred to the National Native Title Tribunal for mediation. No successful mediation took place.
The mediation of the claim in the National Native Title Tribunal ceased on 6 May 2009, and the Court proceeded to make orders, from time to time, to try to secure from the applicant her proposals for progressing the claim.
This involved attendances for directions on 20 occasions with no meaningful progress achieved.
During the last directions hearing on 3 December 2014, the Court had adjourned the application to 17 January 2015 and directed the applicant to file and serve any evidence it wished to rely upon. At that time, the Court noted that it would consider whether it should dismiss the claim of its own motion, depending on the content of the evidence filed or if no evidence was filed.
No evidence was subsequently filed.
The law
Mansfield J, at [13], considered whether the proceeding should be dismissed under:
s 84D(4) or s 190F(6) of the NTA; or
s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).
His Honour at [14] considered that s 84D(4) would not be appropriate because no evidentiary material had been provided. Mansfield J considered it more appropriate to rely on s 190F(6) of the NTA, which ‘applies when an application for the determination of native title has been made, but not registered’. This was satisfied by the claim’s history and the fact that it had been many years since the claim for registration was not accepted.
Mansfield J at [15] also considered that the claim could be dismissed under s 31A(2) of the FCA Act which applies the “no reasonable prospect of successfully prosecuting the proceeding” test.
Reasoning
Mansfield J provided the following reasons for dismissing the claim, at [17]:
The length of the claim and prospect of succeeding. His Honour considered the history of the claim demonstrated there was no reasonable prospect of the applicant successfully prosecuting the claim.
The interests of justice. His Honour listed 3 matters in favour of dismissing the claim in the interests of justice:
The claim area is the same area granted to the Malak Malak Aboriginal Land Trust under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALR Act). This grant gives the Malak Malak People (represented by the Northern Land Council in the proceedings) rights equivalent to freehold rights over the claim area. Recognition of the claim group as traditional owners under the NTA could not secure any meaningful rights which are recognised at common law because the rights under the Malak Malak Aboriginal Land Trust grant are more extensive.
The Kamu people's status as part of the “traditional Aboriginal owners” of the claim area under the ALR Act raised the “serious issue” of whether the Kamu people could be recognised as the traditional owners of the claim area. His Honour considered that the real concern of the applicant on behalf of the Kamu people appeared to be that their interests as part of the Malak Malak Aboriginal Land Trust were not adequately recognised.
The applicant had failed to give a real and meaningful response to how the application, if prosecuted successfully, would provide a real benefit to the applicant or to the claim group in the face of the grant to the wider group (including the Kamu people) under the ALR Act.
At [18], Mansfield J added that the respondents were entitled to have the claim brought to an end in the interests of justice because it was not fair to the respondents to allow the claim to stand “in suspended animation indefinitely”.
In outlining his reasoning at [17], Mansfield J also noted that dismissal of the claim did not represent the negative finding that the applicant and the Kamu people are not the persons (with others or alone) who should be recognised as the holders of native title over the claim area under the NTA.