Bodney v State of Western Australia [2003] FCA 890

Bodney v State of Western Australia [2003] FCA 890

The old Act applications failed to comply with s 61(3) because descriptions such as 'Ballaruk People – Bodney Family Group' and 'Ballaruk Family Group' did not meaningfully describe or identify the other persons with whom native title was claimed. The new Act applications failed because the claims were confined to a subgroup, the biological descendants of Melba Armitage and William Bodney, while the pleaded native title holders were the wider Ballaruk and Didjarruk people, and because there was no satisfactory evidence of authorisation under either limb of s 251B. Since the deficiencies were in the applications themselves and could not be cured by further evidence, the applications should...

Jurisdiction
Australia
Judgment Date
25 August 2003
Procedural Posture
Native Title Determination Applications / Notices of Motion to Strike Out Five Native Title Applications After Substantial Evidence Had Been Taken in the Substantive Claims
Outcome
Five Bodney native title applications were struck out.
Legal Topics
['strike Out of Native Title Applications' 'compliance With S 61 of the Native Title Act 1993 (cth)' 'identification of Native Title Claim Group' 'authorisation of Native Title Applicant' 'old Act and New Act Native Title Applications']
['native Title' 'federal Court Procedure'] ['strike Out of Native Title Applications' 'compliance With S 61 of the Native Title Act 1993 (cth)' 'identification of Native Title Claim Group' 'authorisation of Native Title Applicant' 'old Act and New Act Native Title Applications']

Case Brief

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Procedural Posture

Native Title Determination Applications / Notices of Motion to Strike Out Five Native Title Applications After Substantial Evidence Had Been Taken in the Substantive Claims

Legal Issues

  1. 1 ['Whether the old Act applications complied with s 61(3) by describing or otherwise identifying the other persons with whom the applicant claimed to hold native title.' 'Whether the amended applications governed by the new Act complied with s 61 and s 251B by being authorised by the relevant native title claim group.' 'Whether a claim made on behalf of descendants of a recent couple, rather than the wider Ballaruk and Didjarruk people alleged to hold the native title rights and interests, could satisfy the requirements for a native title claim group.' 'Whether the late timing of the strike out motions justified refusing or deferring determination of the motions.']

Ratio Decidendi

The old Act applications failed to comply with s 61(3) because descriptions such as 'Ballaruk People – Bodney Family Group' and 'Ballaruk Family Group' did not meaningfully describe or identify the other persons with whom native title was claimed. The new Act applications failed because the claims were confined to a subgroup, the biological descendants of Melba Armitage and William Bodney, while the pleaded native title holders were the wider Ballaruk and Didjarruk people, and because there was no satisfactory evidence of authorisation under either limb of s 251B. Since the deficiencies were in the applications themselves and could not be cured by further evidence, the applications should...

Court Disposition

Five Bodney native title applications were struck out.

Orders

  • ['Native title applications WAG 137 of 1998, WAG 138 of 1998, WAG 139 of 1998, WAG 140 of 1998 and WAG 149 of 1998 each be struck out.' 'There will be no order for costs, either in relation to the motions or the Bodney applications themselves.']