Case: Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115
Outcome: cited
Mr Hillig is the Administrator of Worimi Local Aboriginal Land Council ('the Land Council'). He seeks a declaration in separate proceedings ('the Hillig proceedings') that no native title exists over land at Port Stephens ('the Land'). The Land Council owns the fee simple in the Land, subject to any native title rights or interests (s 36(9) of the Aboriginal Land Rights Act 1983 (NSW)) and wishes to sell the Land. On 22 August 2006, I struck out a claimant application by Mr Dates, who prefers to be known as Worimi, for a determination that native title exists over the Land ('the first application'): Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115. Worimi has now filed a further claimant application ('the second application'). These proceedings concern the second application. Mr Hillig moves the Court for orders that the second application be struck out. 2 In order to deal with Mr Hillig's motion, it is necessary to reiterate some matters considered in Hillig (No 2). The first application was a claimant application by Worimi on behalf of women who asserted a native title interest in the Land as a sacred site for women. Worimi had sought, by a draft proposed application ('the proposed application'), to amend the first application to assert a native title interest held by himself and his family. The claim group of the second application is the same as the claim group identified in the proposed application considered in Hillig (No 2). 3 In Hillig (No 2) at [60] I discussed whether s 61(1) of the Native Title Act 1993 (Cth) ('the Act') requires the claim group to consist of the whole group of persons who hold native title over an area or whether it can comprise a sub-group which is only part of a larger group of native title holders. I concluded that, subject to an exception that is not relevant in this case, where a small family group or sub-group is only part of the group who claim to hold native title, the sub-group does not hold the common or group rights or interests within s 61. 4 I determined that the first application should be struck out (at [72]). I did not permit Worimi to amend that application for reasons that I gave. I did, however, give him the opportunity to file a further claimant application. A relevant consideration was the delayed hearing of the Hillig proceedings for a declaration of no native title over the Land ( Hillig (No 2) at [79]). I directed at [83] that any further application filed by Worimi include, in accordance with the requirements of the Act, the proper identification of and authorisation by the claim group; the connection between the claim group and the relevant traditional laws and customs observed; and the basis for the claim by that claim group from the time of sovereignty. 5 Worimi filed the second application on 19 September 2006 and in so doing initiated these proceedings. Without objection from Worimi, I made an order that Mr Hillig be joined. Mr Hillig now seeks to strike out the proceedings pursuant to s 84C of the Act or to dismiss them summarily pursuant to O 20 r 2 of the Federal Court Rules .