Case: Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77
Outcome: applied
If the evidence were to establish unequivocally that Worimi has not been authorised by the native title claim group, the application may be summarily dismissed for failure to comply with s 61 of the [2004] FCAFC 226 ; Act ( Bodney v Bropho (2004) 140 FCR 77 at [52] per Stone J). However, the application should only be dismissed where the claim as expressed is untenable and on the basis of the evidence most favourable to Worimi ( Landers v State of South Australia (2003) 128 FCR 49 at [7]). 28 Ms Jowett also emphasises that the factual issues, many of which are complex in nature, should not be determined in interlocutory proceedings. The merits of the claim should be determined at trial ( Bodney at [11]). She points out, correctly, that there was no cross-examination of Worimi; nor has Mr Hillig adduced evidence from his mother Beryl Dates senior or from his sister Debbie Dates. Her explanation for the identification by Worimi of the different claim group in the first application is an assumption on his part that other Worimi people were recipients of the same knowledge as he held. The second application and the identification of the claim group was, according to Ms Jowett, prepared in the knowledge from the first application that some Worimi women and Mr Kelvin Dates, Worimi's brother, denied holding any native title rights over the Land. 29 Mr Jowett submits that, if individuals cease to acknowledge and observe relevant laws and customs, they will cease to possess native title. That provides an explanation why Worimi and his wife and children who continue to observe those laws and customs represent the totality of the claim group. That knowledge was passed to Worimi by his father, his father's brothers and his father's mother. She stresses that the determination of the recipients of the native title rights requires findings of fact to be made which ought not be the subject of inquiry for the purposes of a strike-out application. 30 Having made those submissions, Ms Jowett acknowledges that, if the second application does not comply with ss 61 and 62 of the Act, it is liable to be struck out. 48 Ms Jowett placed considerable reliance on Bodney , where the Full Court dealt with a claim group analogous to that of the present application and allowed an appeal against an order to strike out the application pursuant to s 84C of the Act. 49 Worimi has, unlike Mr Bodney, changed the composition of the claim group from the first to the second applications (cf Bodney at [5]) and has, in these proceedings, sought to explain his reasons for doing so. My consideration of the claim group and authorisation is based only on Worimi's evidence, as relied upon by him in these proceedings. That evidence includes his affidavit in these proceedings which refers to the first application and his affidavits in support of that application. Those affidavits were relied upon by Worimi in his written submissions. That evidence is untested by cross-examination. I have accepted that evidence. However, that does not preclude an analysis of that evidence to present a coherent understanding of the asserted claim group and the extent of authorisation. 50 Worimi's evidence is that there are other persons outside his immediate family who, as part of the Garuahgal people or the Worimi nation, would have been entitled to assert native title over the Land (cf Bodney at [28]). His qualification is that he now understands that they do not observe traditional laws and customs and that, accordingly, the persons specified in the claim group are the whole of the group alleged by him to hold the claimed native title rights and interests. In other words, as discussed in Bodney by Branson J at [31], Worimi relies upon the theoretical possibility that individuals who are Garuahgal or Worimi by descent do not share in all of the native title rights and interests because they have ceased to acknowledge the traditional laws and observe the traditional customs of the community. That is not a question that needs to be determined on this strike-out application. I am prepared to accept that possibility, for the purposes of this application. 51 The characteristics of those persons are members of the Garuahgal or Worimi people who presently observe traditional law and custom as described by Worimi or who may claim entitlement through marriage to the eldest son of the family. Worimi is the eldest son, as was his father. As Worimi's wife is included by her marriage to Worimi although there is no suggestion that she observes traditional law and custom, so also is his mother. As his daughters are part of the claim group as members of his family, to whom he has passed laws and customs, so too is his sister Debbie and possibly her children. The claim group of the second application is not comprised of all the persons who, according to traditional law and custom, hold the common or group rights and interests comprising the native title claimed. It follows that it is liable to be struck out for failure to comply with s 61(1) of the Act. 52 It is necessary to consider whether Mr Hillig has established that the requirements of authorisation in s 251B(a) have not been met.