Evans on behalf of the Koara People v The State of Western Australia

[2008] FCA 1557

FEDERAL COURT OF AUSTRALIA

Evans on behalf of the Koara People v The State of Western Australia [2008] FCA 1557

NATIVE TITLE - notice on Court’s own motion to show cause why application should not be dismissed pursuant to s 190F(6) of the Native Title Act (Cth) - where application not likely to be amended in a way that would lead to a different outcome once considered by the Registrar of the Native Title Tribunal - where no other reason why the application should not be dismissed - application dismissed

Native Title Act 1993 (Cth) ss 190A, 190E(1), 190F(1) and (6)

Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 cited

RICHARD GUY EVANS ON BEHALF OF THE KOARA PEOPLE and ORS v STATE OF WESTERN AUSTRALIA and ORS 

WAD 6008 OF 1998

GILMOUR J
13 OCTOBER 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 6008 OF 1998

BETWEEN:

RICHARD GUY EVANS
DAWN EVANS
GERALDINE HOGARTH
BRETT ANDREW LEWIS AND
JOAN TUCKER ON BEHALF OF THE KOARA PEOPLE
Applicants

AND:

STATE OF WESTERN AUSTRALIA

AGNEW PASTORAL COMPANY PTY LTD
RAYMOND WILLIAM ASHWIN
EVELYN GILLA
AURIONGOLD EXPLORATION PTY LIMITED
AUSTWHIM RESOURCES NL
WILLIAM PAUL AXFORD
PETER DEAN AXFORD
FLORA STUART AXFORD
BARRICK GOLD OF AUSTRALIA LIMITED
COLIN LESLIE BERNHARDT
MARILYN ANN BERNHARDT
BHP BILLITON NICKEL WEST PTY LTD
BHP BILLITON YAKABINDIE NICKEL PTY LTD
BHP BILLITON YEELIRRIE DEVELOPMENT COMPANY PTY LTD
RENE ALCIDE BLAMPAIN
BUNN SPRINGS PASTORAL CO PTY LTD
WILLIAM JOHN PAUL CAVALLARO
ANNA SHERRIE CAVALLARO
CAROLE MICHELLE CRAIG
MALCOLM RONALD CRAIG
CSR READYMIX
DALRYMPLE RESOURCES NL
ADELE ROSARIE DAY
COLVIN DAY
DELTA GOLD EXPLORATION PTY LTD
ASHLEY WILLIAM DOWDEN
JOHN CHARLES DOWDEN
FORRESTANIA GOLD NL
FORSAYTH NL
WINIFRED GENTLE
STEVEN RICHARD GRAINGER
ROBERT GRAINGER
PETER JOHN GRAINGER
STEPHEN ANTHONY HARVEY
A W JACOBS
DAVID DE COURCY LEFROY
J M LEFROY
DAVID MURRAY MCQUIE
LEIGH MURRAY MCQUIE
MARGARET ROSE MCQUIE
VICTORIA JANE MCQUIE
MINARA PASTORAL HOLDINGS PTY LTD (ACN 072 204 061)
MURION CATTLE COMPANY
NORILSK NICKEL WILDARA NL
PLACER (GRANNY SMITH) PTY LTD
PLUTONIC (BAXTER) PTY LTD
PLUTONIC OPERATIONS LTD
WILLIAM SHAY
REX SHAY
SHIRE OF LAVERTON
SHIRE OF LEONORA
SHIRE OF MENZIES
SIPA EXPLORATION NL
SIR SAMUEL MINES NL
PAUL ALEXANDER STARICK
KELLIE ANNE STARICK
TELSTRA CORPORATION LIMITED
WEEBO PASTORAL CO PTY LTD
WESTMIN TALC PTY LTD
WESTMINCO OIL PTY LTD
DALE MARTIN ZADOW
ROBYN PATRICIA ZADOW

Respondents

JUDGE:	GILMOUR J
DATE OF ORDER:	13 OCTOBER 2008
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 6008 OF 1998

BETWEEN:

RICHARD GUY EVANS
DAWN EVANS
GERALDINE HOGARTH
BRETT ANDREW LEWIS AND
JOAN TUCKER ON BEHALF OF THE KOARA PEOPLE
Applicants

AND:

STATE OF WESTERN AUSTRALIA

AGNEW PASTORAL COMPANY PTY LTD
RAYMOND WILLIAM ASHWIN
EVELYN GILLA
AURIONGOLD EXPLORATION PTY LIMITED
AUSTWHIM RESOURCES NL
WILLIAM PAUL AXFORD
PETER DEAN AXFORD
FLORA STUART AXFORD
BARRICK GOLD OF AUSTRALIA LIMITED
COLIN LESLIE BERNHARDT
MARILYN ANN BERNHARDT
BHP BILLITON NICKEL WEST PTY LTD
BHP BILLITON YAKABINDIE NICKEL PTY LTD
BHP BILLITON YEELIRRIE DEVELOPMENT COMPANY PTY LTD
RENE ALCIDE BLAMPAIN
BUNN SPRINGS PASTORAL CO PTY LTD
WILLIAM JOHN PAUL CAVALLARO
ANNA SHERRIE CAVALLARO
CAROLE MICHELLE CRAIG
MALCOLM RONALD CRAIG
CSR READYMIX
DALRYMPLE RESOURCES NL
ADELE ROSARIE DAY
COLVIN DAY
DELTA GOLD EXPLORATION PTY LTD
ASHLEY WILLIAM DOWDEN
JOHN CHARLES DOWDEN
FORRESTANIA GOLD NL
FORSAYTH NL
WINIFRED GENTLE
STEVEN RICHARD GRAINGER
ROBERT GRAINGER
PETER JOHN GRAINGER
STEPHEN ANTHONY HARVEY
A W JACOBS
DAVID DE COURCY LEFROY
J M LEFROY
DAVID MURRAY MCQUIE
LEIGH MURRAY MCQUIE
MARGARET ROSE MCQUIE
VICTORIA JANE MCQUIE
MINARA PASTORAL HOLDINGS PTY LTD (ACN 072 204 061)
MURION CATTLE COMPANY
NORILSK NICKEL WILDARA NL
PLACER (GRANNY SMITH) PTY LTD
PLUTONIC (BAXTER) PTY LTD
PLUTONIC OPERATIONS LTD
WILLIAM SHAY
REX SHAY
SHIRE OF LAVERTON
SHIRE OF LEONORA
SHIRE OF MENZIES
SIPA EXPLORATION NL
SIR SAMUEL MINES NL
PAUL ALEXANDER STARICK
KELLIE ANNE STARICK
TELSTRA CORPORATION LIMITED
WEEBO PASTORAL CO PTY LTD
WESTMIN TALC PTY LTD
WESTMINCO OIL PTY LTD
DALE MARTIN ZADOW

ROBYN PATRICIA ZADOW
Respondents

JUDGE:	GILMOUR J
DATE:	13 OCTOBER 2008
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 13 October 2008 ex tempore reasons were given for dismissing the application.  The following are edited reasons.

   BACKGROUND

2. On 30 January 2008 a delegate of the Native Title Registrar decided pursuant to s 190A of the Native Title Act 1993 (Cth) (Native Title Act) not to accept the application for registration.

3. It was not submitted nor was there any evidence to suggest that since failing the registration test the Applicant has either applied to the National Native Tribunal pursuant to s 190E(1) of the Native Title Act for reconsideration of the Delegates decision or applied to the Court pursuant to s 190F(1) of the Native Title Act for the review of that decision. 

4. In these circumstances the Court of its own motion listed the matter for a directions hearing on 9 April 2008. At that directions hearing the Court directed the parties to file and serve submissions in relation to the disposition of the application pursuant to s 190F(6) of the Native Title Act on or before 7 May 2008.  Subsequent to this date and, in light of the Full Court’s decision in Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 delivered on 27 August 2008, parties were invited by the Court to file and serve any further submissions prior to the hearing of the application.

   SECTION 190F(6) – SHOULD THE APPLICATION BE DISMISSED?

5. In deciding whether the application should be dismissed I have considered s 190F(6) of the Native Title Act, which provides as follows:

   The Court may, either on the application of a party or on its own motion, dismiss the application in which the claim was made … if:

   (a)the Court is satisfied that the application in issue has not been amended since consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and

   (b) in the opinion of the Court, there is no other reason why the application in issue should not be dismissed.

6. There is no evidence, and it was not submitted by any party, that this application is likely to be amended at all, never mind in a way that would lead to a different outcome once considered by the Registrar of the National Native Title Tribunal. 

7. Insofar as the opinion of the Court is concerned, again there is nothing before the Court as to whether or not there is another reason why the application should not be dismissed.

8. The position of the Applicant is set out in a letter to the registrar of the Court dated 7 May 2008 in which the Court was advised by the representative Aboriginal/Torres Strait Islander body for the area, the Goldfields Land and Sea Council which acts for the Applicant in this matter, that it has specific instructions not to make any submissions to the Court.  That position remains the case at the time of the hearing of this matter. 

9. I am therefore of the view that the application should be dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        21 October 2008

Solicitor for the Applicants:	Mr P Vincent
Counsel for the State of Western Australia:	Mr T Creewel
Solicitor for the State of Western Australia:	State Solicitors Office
Counsel for Indigenous Interests:	Ms C Tan
Counsel for Pastoral Interests	Mr J Steenhof
Counsel for BHP Billiton Nickel West Pty Ltd	Ms Burwood
Counsel for various mining interests	Ms M Watts

Date of Hearing:	13 October 2008
Date of Judgment:	13 October 2008