Mansfield J
This decision relates to a native title claim over lands and waters within the Town of Batchelor in the Northern Territory. The matter has a complex history, with three claims made over the same area.
The Town of Batchelor No. 3 claim was discontinued on the basis that certain people representing the Finnis River Brinkin Group comprised of 8 clans (FRBG) were removed as respondents to the Town of Batchelor No.1 claim.
Mansfield J determined the remaining claims, Town of Batchelor No. 1 (No. 1) and Town of Batchelor No. 2 (No. 2).
The No. 1 applicants applied to have the No. 2 application summarily dismissed under s 84C of the Native Title Act 1993 (Cth) (NTA). The Court ordered that No. 2 be struck out, but delayed sealing the orders to allow the No. 2 applicant time to apply for any other orders he considered appropriate. The applicant sought permission to amend the application and provide further evidence of authorisation. Later, leave was sought to file a further amended No. 2 application.
Previous judgement
The Court had provisionally dismissed the No. 2 claim because the nominated apical ancestors of the Emu Clan in the amended application, to a significant degree, did not claim to be members of the native title claim group or any native title claim group which has native title rights and interests in the claim area.
The claim was also struck out because there was no evidence that the applicant's representative, Mr Petherick, was authorised either by traditional meeting of the identified native title claim group (either the Emu Clan or the Blue Tongue Lizard Clan separately) to bring the application on their behalf and Mr Petherick had made enquiries generally on behalf of a larger group comprising 8 clans.
The No. 2 applicant claimed that the further amended application addressed these defects.
Decision
Mansfield J did not allow the No. 2 claim application to be amended and dismissed the proceedings on the basis that the claim would be bound to fail. His reasons included:
the relevant native title holding group is a wider group than that proposed in the No. 2 application (at [124]);
there is no cogent evidence that either by a traditional system of laws and customs, or by any conventional system, there has been an authorisation under s 251B of the NTA for Mr Petherick to bring the proposed amended claim (at [125]-[132]); and
no anthropological evidence supported the claims made (at [136]).
In considering the lack of anthropological evidence, Mansfield J found that the No. 3 claim group did not have a proper interest in the Batchelor area and ordered that members of the FRBG group be removed as respondents to the Batchelor No. 1 application.