Rubibi Community v Western Australia (No 4) - [2004] FCA 1019

FEDERAL COURT OF AUSTRALIA
Rubibi Community v State of Western Australia [2004] FCA 1019
NATIVE TITLE – whether the non-extinguishment principle in ss 47, 47A and 47B is to be applied on the basis of facts in existence at the date at which an application for native title is filed in the Federal Court or at the date at which such an application is the subject of a determination by the Court
Native Title Act 1993 (Cth) ss 13, 47, 47A, 47B, 61, 61A, 62, 64, 223 and 225
Strickland (on behalf of the Maduwongga People) v Native Title Registrar (1999) 168 ALR 242 – cited
Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 5) (2003) 197 ALR 138 - cited
Ross v The Queen (1979) 141 CLR 432 – cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 - applied
Ward (on behalf of the Miriuwung Gajerrong People) v State of Western Australia (1998) 159 ALR 483 – cited
State of Queensland v Hutchison (2001) 108 FCR 575 – cited
Andrew Passi on behalf of the Meriam People v State of Queensland [2001] FCA 697 – cited
In the matter of Daniel v State of Western Australia [2003] FCA 666 – cited
Neowarra v State of Western Australia [2003] FCA 1402 – cited
The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472 - cited
Western Australia v Strickland (2000) 99 FCR 33 - cited
FRANK SEBASTIAN AND OTHERS ON BEHALF OF THE RUBIBI COMMUNITY v STATE OF WESTERN AUSTRALIA AND OTHERS
WAG 6006 OF 1998
MERKEL J
6 AUGUST 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 6006 OF 1998

BETWEEN:

FRANK SEBASTIAN AND OTHERS on behalf of the
RUBIBI COMMUNITY
APPLICANTS

AND:

STATE OF WESTERN AUSTRALIA AND OTHERS
RESPONDENTS

JUDGE:

MERKEL J

DATE OF ORDER:

6 AUGUST 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT the separate question set out hereunder be answered as follows:
Question:
Whether, upon the proper construction of the words ‘when the application is made’ in ss 47(1)(b), 47A(1)(b) and 47B(1)(b) of the Native Title Act 1993 (Cth), an application is made –
(a)at all material times up until a determination of native title is made under s 225;
(b)at the time that the initiating application under ss 13 and 61 of the Act is issued; or
(c)at some other and which specified time.

Answer:
The application is made at the time that the initiating application under ss 13 and 61 of the Act is filed in the Federal Court of Australia.
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

WAG 6006 OF 1998

BETWEEN:

FRANK SEBASTIAN & OTHERS on behalf of the
RUBIBI COMMUNITY
APPLICANTS

AND:

STATE OF WESTERN AUSTRALIA AND OTHERS
RESPONDENTS

JUDGE:

MERKEL J

DATE:

6 AUGUST 2004

PLACE:

MELBOURNE

REASONS FOR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FCA 1019
Decision Date: 6 AUGUST 2004

CaseChat Overview and Summary

The Rubibi Community initiated legal proceedings against the State of Western Australia, contesting the validity of certain legislative and regulatory actions impacting their rights and interests. The case was brought before the Federal Court of Australia, which was tasked with interpreting the relevant sections of the Native Title Act 1993 (Cth) concerning the timing and effect of applications made under the Act.

The primary legal issue before the court was the interpretation of sections 47, 47A, and 47B of the Act, specifically the moment at which an application is deemed to be made for the purposes of these sections. The applicants argued that the date of the combination order, which amalgamated several individual applications, should be considered the effective date of the application. The court was required to determine whether the combination order could alter the date on which the application was made, as this date has significant legal consequences under the Act.

The Federal Court rejected the applicants' arguments, holding that for the purposes of sections 47, 47A, and 47B, an application is made when it is filed in the Federal Court. The court found that the combination order did not change the date of the application, as it merely combined existing applications that were each continuing. The court also noted that the legislative scheme did not support the notion that a combination order could override the importance of the filing date. Consequently, the court concluded that the applicants' contention that the combination order date should be the operative date was unfounded.

The court's decision clarified that the filing date of an application remains critical for determining the application's validity and the applicability of various sections of the Act. This ruling ensures that the legislative intent behind the timing of applications is preserved, and the applicants' alternative argument regarding the combination order's effect on the application date was rejected.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MERKEL J

Finally the applicants’ alternative contention, that the date the application is filed is the date of the combination order, should also be rejected. It is clear from the terms of the combination order that it is combining the eight applications, each of which is continuing. Also, as explained above, the date at which an application to the Court under s 61 of the Act is made has important consequences. There is nothing in the legislative scheme that suggests that an order combining applications may override those consequences.Conclusion For the above reasons the answer to the separate question is that for the purposes of ss 47, 47A and 47B of the Act an application is made when the application is filed in the Federal Court.

Ratio Decidendi

Legal Principle Established

Established by: MERKEL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6006 OF 1998

BETWEEN:	FRANK SEBASTIAN AND OTHERS on behalf of the RUBIBI COMMUNITY APPLICANTS
AND:	STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENTS
JUDGE:	MERKEL J
DATE OF ORDER:	6 AUGUST 2004
WHERE MADE:	MELBOURNE

BETWEEN:	FRANK SEBASTIAN & OTHERS on behalf of the RUBIBI COMMUNITY APPLICANTS
AND:	STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENTS
JUDGE:	MERKEL J
DATE:	6 AUGUST 2004
PLACE:	MELBOURNE