Harkin on behalf of the Nanatadjarra People v State of Western Australia (No 2)

In the case of Harkin on behalf of the Nanatadjarra People v State of Western Australia (No 2), the Federal Court was called upon to determine an interlocutory application for summary dismissal or strike out of a native title determination application, as well as a separate interlocutory application to amend the people who constitute the applicant. The Nanatadjarra People, represented by Harkin, sought a native title determination over certain lands in Western Australia, while the State of Western Australia contested the validity of the claim and sought summary dismissal.

The central legal issue before the court was whether the Nanatadjarra applicant had reasonable prospects of successfully establishing that their claim was properly authorised within the meaning of sections 61(1) and 251B of the Native Title Act 1993 (Cth). Additionally, the court had to decide whether the interlocutory application to amend the applicant group was necessary for the court to consider the merits or determine the proceedings.

The court found that the Nanatadjarra applicant had not discharged its evidentiary burden of proving, on the balance of probabilities, that its decision-making process was traditional or that the claim had been authorised by the entire "native title claim group". Furthermore, the Nangaanya-ku applicant had established that there were no reasonable prospects of the Nanatadjarra applicant proving that there were no persons holding native title rights and interests in the application area beyond those included in the current claim group. The court held that the Nanatadjarra applicant's decision-making process had not been consistently described, and that the evidence provided was contradictory. Consequently, the court found that the Nanatadjarra applicant had no reasonable prospects of successfully prosecuting the proceeding.

The court also dismissed the interlocutory application to amend the applicant group as unnecessary to consider the merits or determine the proceedings. Since the native title determination application was summarily dismissed, the amendment of the applicant group would not have any bearing on the outcome of the case.

In summary, the Federal Court dismissed the native title determination application filed on 7 July 2017 under section 31A(2) of the Federal Court of Australia Act 1976 (Cth) and dismissed the interlocutory application filed on 3 November 2020. No order was made as to costs.