Brown v State of South Australia [2009] FCA 206

Brown v State of South Australia [2009] FCA 206

The amended application did not comply with s 61 of the Native Title Act 1993 (Cth) because the evidence established that the Brown Family Group was a sub-group of the AM-Y claim group or at least of a larger group than the Brown Family Group, rather than a native title claim group comprising all persons who held the relevant common or group rights and interests. In addition, the applicant was not authorised by all persons in the Brown Family Group even assuming it was a native title claim group: the claimed authorisation by elders was not shown to be an authorisation to bring and deal with the application, no traditional decision-making process conferring that authority was established,...

Jurisdiction
Australia
Judgment Date
12 March 2009
Procedural Posture
Native Title Determination Application / First Respondent's Notice of Motion to Strike Out Under S 84 C of the Native Title Act 1993 (cth), or Alternatively Dismiss Under S 31 a of the Federal Court of Australia Act 1976 (cth)
Outcome
Native title determination application struck out.
Legal Topics
['native Title Claim Group' 'authorisation of Applicant' 'strike Out' 'sub Group or Sub Set of Native Title Claim Group']
['native Title' 'federal Civil Procedure'] ['native Title Claim Group' 'authorisation of Applicant' 'strike Out' 'sub Group or Sub Set of Native Title Claim Group']

Case Brief

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Procedural Posture

Native Title Determination Application / First Respondent's Notice of Motion to Strike Out Under S 84 C of the Native Title Act 1993 (cth), or Alternatively Dismiss Under S 31 a of the Federal Court of Australia Act 1976 (cth)

Legal Issues

  1. 1 ['Whether the Brown Family Group identified in the amended application constituted a native title claim group within the meaning of the Native Title Act 1993 (Cth).' 'Whether the applicant was authorised by all persons in the native title claim group to make the application and deal with matters arising in relation to it.' 'Whether the native title determination application should be struck out under s 84C of the Native Title Act 1993 (Cth).']

Ratio Decidendi

The amended application did not comply with s 61 of the Native Title Act 1993 (Cth) because the evidence established that the Brown Family Group was a sub-group of the AM-Y claim group or at least of a larger group than the Brown Family Group, rather than a native title claim group comprising all persons who held the relevant common or group rights and interests. In addition, the applicant was not authorised by all persons in the Brown Family Group even assuming it was a native title claim group: the claimed authorisation by elders was not shown to be an authorisation to bring and deal with the application, no traditional decision-making process conferring that authority was established,...

Court Disposition

Native title determination application struck out.

Orders

  • ['The native title determination application (SAD 36 of 2008) be struck out under s 84C of the Native Title Act 1993 (Cth).']