Case: Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31
Outcome: considered
J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 refers to the distinction between people who claim to hold common or group rights and interests, and those who actually hold those common or group rights and interests. Lindgren J said at [1189] [1193]: 1189 [That result] is an odd use of language. It is a natural use of language to designate the group of persons on whose behalf a claimant application is made, as 'a claim group', whether or not the application proves to be successful, and those persons, 'including the applicants', as 'claimants'. Yet the expression 'native title claim group' is defined in the NTA as being, relevantly, all the actual holders, according to their traditional laws and customs, of the particular native title claimed: NTA ss 253, 61(1). It follows that there cannot be an authorisation within s 61(1) unless there are actual holders of the particular native title claimed. 1190 Logically, the authorisation issue can be finally determined only after I determine whether there are actual holders of the particular native title claimed, and if so, who they are. Since I decide below that there are no holders of the particular native title claimed, the making of the present application could not have been authorised by all of those persons. 1191 Authorisation was addressed extensively in submissions. I will address the issue independently of my conclusion that there are no actual holders of the particular native title claimed. I will address it as if I were dealing with a strike out application under s 84C. 1192 How does s 84C, which assumes that it may be possible for an application to be struck out prior to the final determination of an application, accommodate the fact that the native title claim group is defined to mean the actual holders of the particular native title claimed? In my opinion, the answer is that the striking out remedy is available once it clearly appears that, if the application were to succeed according to its own terms, the applicants would not have been authorised by all those persons the Court would determine to be the actual holders of the particular native title claimed, that is to say, by all the members of the 'claim group' (all the 'claimants'). 1193 I will take this approach also to the challenges to authorisation of all Claims before the Court, that is to say, I will assume that the claimants identified in the Form 1 are actual holders of the particular native title claimed in that Form. The opposition by Mr Delaney to the granting of the relief sought by the notice of motion depends on establishing that the claimant group, as contended for by the applicant Connie Isaacs, is wrong, and that Connie Isaacs does not, and never had, the authorisation of the correct claimant group. The observations of Lindgren J in [1192] above indicate that a strike out application would depend on whether it was established that the applicant was not authorised by all the members of the claim group, ie, all the "claimants". The question of whether all the "claimants" constitute the persons who actually hold the common or group rights and interests confirming the particular native title claimed, or whether the persons who actually hold those rights and interests is a wider group (as Mr Delaney contends), being a factual dispute, is not properly the subject of determination on a strike out application.