Strickland v Western Australia

Case [2010] FCA 272

FEDERAL COURT OF AUSTRALIA

Strickland v State of Western Australia [2010] FCA 272

Citation: Strickland v State of Western Australia [2010] FCA 272
Parties: MARJORIE MAY STRICKLAND and ANNE JOYCE NUDDING v STATE OF WESTERN AUSTRALIA,
COMMONWEALTH OF AUSTRALIA, CITY OF KALGOORLIE – BOULDER, SHIRE OF COOLGARDIE, SHIRE OF LEONORA, GOLDFIELDS LAND & SEA COUNCIL ABORIGINAL CORPORATION, ARCHAEAN GOLD NL, BORDER RESOURCES NL, DELTA GOLD EXPLORATION PTY LTD, DELTA GOLD NL, GOLDFIELDS EXPLORATION PTY LTD, HOMESTAKE GOLD OF AUSTRALIA LTD, KALGOORLIE LAKE VIEW PTY LTD, KUNDANA GOLD PTY LTD, PANCONTINENTAL GOLD (OPERATIONS) PTY LTD, PANCONTINENTAL GOLDMINING AREAS PTY LTD, PANCONTINENTAL MINING LTD, PLUTONIC (BAXTER) PTY LTD, PLUTONIC OPERATIONS LTD, WILLIAM JAMES STILLMAN, WILBROASH MINING AND EXPLORATION, NEWMONT KALTAILS PTY LTD, NORTH KALGURLI MINES PTY LTD, BHP BILLITON NICKEL WEST PTY LTD, DALRYMPLE RESOURCES NL, COWARNA DOWNS PTY LTD, YUNDAMINDRA PASTORAL HOLDINGS PTY LTD, BURCHILL FRANCIS CECIL JONES, JOHN LOAD CECIL JONES, KEITH CHARLES MADER, MENANGINA PTY LTD, MT VETTERS PASTORAL CO (1966) PTY LTD, COOLGARDIE CAMEL FARM, KALGOORLIE BOWLING CLUB (INC) and TELSTRA CORPORATION LIMITED
File number: WAD 76 of 1997
Judge: MCKERRACHER J
Date of judgment: 23 March 2010
Corrigendum: 29 April 2010
Catchwords: NATIVE TITLE – Court’s discretionary power to dismiss an application on its own motion – where application has failed registration test – where application has not been amended since consideration by the Registrar – where application not likely to be amended in a way that would lead to a different outcome once considered by the Registrar – no other reason why the application should not be dismissed
Legislation: Native Title Act 1993 (Cth) ss 190A, 190B(2), 190B(9), 190C(2), 190C(3), 190F(5), 190F(6)
Cases cited: Christine George & Ors on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518
Harrington-Smith on behalf of the Wongartha People v State of Western Australia (No 9) (2007) 238 ALR 1
Strickland v Native Title Registrar (1999) 168 ALR 242
Western Australia v Strickland (2000) 99 FCR 33
Date of hearing: 14 December 2009
Date of last submissions: 19 February 2010
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 21
Counsel for the Applicant (Maduwongga): R Bower
Solicitor for the Applicant (Maduwongga): Corser & Corser
Counsel for the State of Western Australia: S Begg
Solicitor for the State of Western Australia: State Solicitors Office
Counsel for the Commonwealth of Australia: S Oliver
Solicitor for the Commonwealth of Australia: Australian Government Solicitor
Counsel for Various Mining/Fishing Interests: M McKenna
Solicitor for Various Mining/Fishing Interests: Hunt & Humphry
Counsel for Various Local Government Interests: A Mararaj-MacLean
Solicitor for Various Local Government Interests: Minter Ellison
Dr H Esbenshade appeared on behalf of Various Pastoral Interests. 

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 76 of 1997
BETWEEN:

MARJORIE MAY STRICKLAND
ANNE JOYCE NUDDING
Applicants
AND:

STATE OF WESTERN AUSTRALIA
First Respondent

COMMONWEALTH OF Australia
Second Respondent

CITY OF KALGOORLIE – BOULDER, SHIRE OF COOLGARDIE and SHIRE OF LEONORA
Third Respondents

GOLDFIELDS LAND & SEA…

Continue reading Strickland v Western Australia

Sign in free to access the full text

Details
AGLC
Strickland v Western Australia [2010] FCA 272
Case
[2010] FCA 272
Decision Date

CaseChat Overview and Summary

The case of Strickland v Western Australia involved an application for the registration of native title by the Maduwongga people. The application had been previously rejected by the delegate, and the applicants sought to have the decision reviewed by the Federal Court. The applicants had not filed any submissions with the Court to date, and the application had not been amended since it was considered and rejected by the delegate. The Court was required to determine whether the application should be dismissed under section 190F(6) of the Native Title Act.

The Court found that the application had not been amended since it was considered by the delegate, and there was no evidence or indication that the application was likely to be amended in a way that would lead to a different outcome. The Court noted that there was no other reason why the application should not be dismissed. The Court referred to the principles applicable to section 190F(6) as outlined by Logan J in Christine George & Ors on behalf of the Gurambilbarra People v State of Queensland and concluded that the application should be dismissed.

The Court dismissed the application and noted that there was nothing to prevent the applicants from filing a properly constituted claim in the future. The Court did not make any orders as to costs.

This case highlights the importance of properly constituting a native title application and the consequences of failing to do so. The Court's decision also underscores the discretionary power of the Court to dismiss an application on its own motion where the application has failed the registration test and there is no other reason why the application should not be dismissed.

Orders

Orders of the court

1. The application be dismissed.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

To date, no submissions have been filed with the Court.CONCLUSION On the basis of the history, I am satisfied for the purposes of s 190F(6) of the Act that the application has not been amended since it was considered and rejected by the delegate. There is no evidence or indication that the application is likely to be amended in a way that would lead to any different conclusion being reached by the Registrar. There is no other reason why the application should not be dismissed. I note there is nothing to prevent the applicants from filing a properly constituted claim in the future. The application will be dismissed.

Ratio Decidendi

Legal Principle Established

As to the principles applicable to how s 190F(6) should operate, I refer to and respectfully adopt (without repeating) the analysis by Logan J in Christine George & Ors on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518. APPLICATION FOR REGISTRATION The applicants represent the Maduwongga people. The application is a combination of three applications made to the Native Title Registrar on 19 April 1994, 6 April 1995 and 8 April 1998. On 17 February 1999, leave of the Court was given to amend and to combine the three applications. The registration test in s 190A of the Act was previously applied on two occasions. On 8 June 1999, the delegate considered the original amendment and combination of the three earlier Maduwongga applications. The delegate did not accept the application for registration on this occasion. Following an application for judicial review, in Strickland v Native Title Registrar (1999) 168 ALR 242, French J (as his Honour then was) ordered that the delegate’s decision be set aside and that the application be accepted for registration and included in the Register of Native Title Claims. French J’s decision was upheld on appeal: Western Australia v Strickland (2000) 99 FCR 33. On 12 September 2005, the delegate considered an amended application filed on 13 June 2003, for which leave to amend was granted by the Federal Court on 11 August 2003. On this occasion the delegate decided that the application did not meet the conditions found in ss 190C(2), 190C(3), 190B(2) and 190B(9) of the Act and the details of the claim were removed from the Register of Native Title Claims. The application has not been amended since the test in s 190A was applied in September 2005. However, the area covered by the application was significantly reduced as a result of the orders made in Harrington-Smith on behalf of the Wongartha People v State of Western Australia (No 9) (2007) 238 ALR 1 (Wongartha) where the application was one of eight overlapping claims before the Court. Lindgren J considered some of the overlapping claims and made orders in respect to the Maduwongga application that: The application be dismissed to the extent that it relates to land or waters that are also the subject of proceedings WAD 6005 of 1998 (Harrington-Smith & Ors v State of Western Australia & Ors). In light of that decision, the delegate reconsidered the application for registration of that part of the Maduwongga claim that was not dismissed by the Court in Wongartha. On 5 June 2009, the delegate decided not to accept the application for registration under s 190A of the Act. The delegate found that the application did not satisfy the following conditions: a.Subsection 190C(4)(b) – the delegate was not satisfied that the applicant was authorised by all the other persons in the native title claim group to make the application and deal with matters arising in relation to it. b.Subsection 190B(5) – the delegate was not satisfied that the factual basis provided was sufficient to support each of the particularised assertions made pursuant to the section.c.Subsection 190B(6) – the delegate did not consider that, prima facie, the applicants had established any of the claimed native title rights or interests. d.Subsection 190B(7) – the delegate was not satisfied that at least one member of the native title claim group, has, or previously had, a physical connection with any part of the land or waters covered by the application. e.Subsection 190B(9)(a) – the delegate was not satisfied that the applicant was not making a claim to the ownership of gas.