Australian Federal Court dismisses applications for a summary dismissal of an application for compensation by the Pitta Pitta People

In brief

The case of Melville on behalf of the Pitta Pitta People v State of Queensland [2022] FCA 387 concerned an application for compensation (Compensation Application) in relation to extinguishment or impairment of native title filed in the Federal Court of Australia (Court) by representatives on behalf of the Pitta Pitta People (Compensation Applicant), and subsequent interlocutory applications by the State of Queensland (State) and the Pitta Pitta Aboriginal Corporation RNTBC (RNTBC) seeking a summary dismissal of the Compensation Application. 

Both the State and the RNTBC sought dismissal of the Compensation Application under section 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCAA), or for the Compensation Application to be struck out entirely under section 84C(1) of the Native Title Act 1993 (Cth) (NTA). The State and the RNTBC relied upon the following arguments:

• The Compensation Applicant was not authorised to make the Compensation Application under section 251B(a) of the NTA.

• The Compensation Applicant did not have standing to make the Compensation Application under section 61(1) of the NTA.

The Court dismissed both interlocutory applications and held that the matter would be listed for trial in 2023, as it found numerous questions of law and fact which were unsuitable for a summary determination.

Background

In 2012, it was determined in the case of Aplin on behalf of the Pitta Pitta People v State of Queensland [2012] FCA 883 that the Pitta Pitta People hold native title over the land and waters around the township of Boulia, in western Queensland. This determination took effect on 17 January 2014, and from that date the native title was held in trust by the RNTBC. In 2020, the Compensation Applicant, comprising an identified number of persons, made the Compensation Application on behalf of the Pitta Pitta People (at [111]).

Court finds that whether the Compensation Applicant has authorisation to make the Compensation Application is a matter which should be determined at trial

The State and the RNTBC submitted that the Compensation Applicant was not authorised to make the Compensation Application as the Compensation Applicant was relying upon authorisation by way of traditional design, but did not meet the requirements under section 251B(a) of the NTA. The requirements under section 251B(a) of the NTA are only met if there is a traditional decision-making process for authorising "things of that kind", in this case being a compensation application. The State and the RNTBC submitted that the Compensation Applicant was unable to demonstrate that any traditional Pitta Pitta law or custom relating to a decision-making process for compensation exists. The State and the RNTBC further submitted that if the Court found that there was an existing traditional decision-making process, there was no evidence that the Compensation Applicant had complied with this traditional process.

The Court found that the issue of authorisation was unsuitable for summary determination on a strike out application for the following reasons:

• The question of the proper construction of section 251B(a) of the NTA involves legal complexities, which are not suitable for summary determination (at [74]).

• Section 251B(a) of the NTA requires that a party be afforded the usual opportunity to gather and adduce evidence (at [75]).

• The evidence given by the Pitta Pitta Elders and other witnesses should not be summarily dismissed as wrong, inaccurate, or insufficiently probative, and instead deserves to be heard (at [76]).

• There is likely some value in understanding expert opinion on the matter, and the fact that expert opinion exists tends against a summary dismissal and in favour of a trial (at [77]).

• Evidence was given which established that there is a factual debate about whether a traditional Pitta Pitta decision-making process regarding compensation exists, which is a triable issue (at [78]).

Court finds that whether the Compensation Applicant has standing to make the Compensation Application is a matter which should be determined at trial

The State submitted that the Compensation Applicant did not have standing to make the Compensation Application, as section 61(1) of the NTA operates in a way which does not allow the Compensation Applicant to make a claim for acts done in the area determined to be subject to native title held in trust by the RNTBC on or after 17 January 2014. The State argued that in order for the Compensation Applicant to make a compensation application for acts done on the land held in native title by the Pitta Pitta People, the act must have been committed before 17 January 2014, when the RNTBC began holding that native title in trust. 

The RNTBC submitted that the Compensation Applicant did not have standing at all as they are not the RNTBC, and therefore do not hold the native title rights and interests in the land and waters surrounding Boulia, regardless of whether the acts were committed before 17 January 2014 or not.

The Court found that the question of standing involved complex legal issues relating to the interpretation of section 61(1) of the NTA, which were unsuitable for a summary determination. The Court also noted that if the contentions made by the State and the RNTBC were accepted, they "...may work to the real disadvantage of the common law holders where there is a dysfunctional or divided RNTBC" (at [101]).

Conclusion

The Court dismissed the interlocutory applications of both the State and the RNTBC, finding that whether the Compensation Applicant is authorised to make the Compensation Application under section 251B(a) of the NTA and has standing under section 61(1) of the NTA are matters which should be determined at a trial. The Court concluded by encouraging the RNTBC and the Compensation Applicants to pursue a compensation application "…in a more collaborative way" (at [120]).