On the 19th of December 2019, the three judges of the Full Court of the Federal Court of Australia handed down their unanimous decision dismissing the applications to have the Registrar’s decision to register the six Indigenous Land Use Agreements (ILUAs) set aside.
Marianne Mackay, Mingli McGlade, Naomi Smith, Fabian Yarran, Margaret Culbong, Dion Joseph, Meretta Kickett, and Antonia Phillips had asked the Federal Court to overturn the decision the Registrar of the National Native Title Tribunal made on the 17th of October 2018, when she registered all six ILUAs that make up the South West Native Title Settlement.
In rejecting all of these applications, the three judges of the Full Court of the Federal Court were satisfied that the Registrar made a valid decision to register the six ILUAs, and that the claims made by the Applicants were without merit. Costs were also awarded against the Applicants.
Decisions of the Full Court of the Federal Court of Australia can be appealed to the High Court, but this is not an automatic right of appeal. The High Court has the right to decide whether or not it will hear an appeal.
Before Applicants can have their appeals heard by the High Court, they must first apply for special leave to have their case heard. The High Court can decide to either accept the special leave application and hear the appeal or reject the special leave application.
On the 20th of January 2020, Mingli McGlade, Naomi Smith, Margaret Culbong and Fabian Yarran filed applications for special leave with the High Court seeking leave to appeal the decision of the Full Court of the Federal Court. SWALSC filed written responses to the Applicants’ reasons on the 10th of February 2020.
These Applicants were then given the opportunity to reply to SWALSC’s responses by the 17th of February 2020, after which time the legal papers for those applications were closed.
After the close of papers for those applications, Marianne Mackay then filed a late application for special leave to appeal the decision of the Full Court of the Federal Court in the High Court. SWALSC filed written responses to this late application on the 24th of April 2020. Papers in relation to this late application were due to be closed on the 1st of May 2020.
Marianne Mackay then asked the High Court for three extensions of time to file her reply, with the latest extension date for filing being the 26th of June 2020. Marianne Mackay filed her reply by the 26th of June 2020, but it was rejected by the Registrar. The papers for that application were then resubmitted on the 2nd of July 2020, at which point the papers for Marianne Mackay’s late application were also closed.
Now that the High Court has received all of the papers for the special leave applications, the Court is in the process of assessing the written submissions and deciding whether or not it will accept the special leave applications and agree to hear the appeals.
At the time of writing this legal update, SWALSC has not been advised when the High Court will make its decision on the special leave applications. Parties to special leave applications only get short notice about when the High Court will decide special leave applications. It is SWALSC’s best guess that the judges’ decision will not be made until September 2020 at the earliest.
Where to from here?
If the High Court decides to accept one or more of the Applications for special leave, then the High Court will hear the appeal at a future date. This decision will result in further delays as we will have wait for the High Court to hear the case, and then wait for the judges to hand down their written decision.
However, if the High Court decides instead to reject the applications for special leave, then that will be the end of the legal process and we will move towards implementing the decision made by the Noongar people in 2015 to accept the South West Native Title Settlement that was negotiated between the State of Western Australia and the Noongar People.
SWALSC will advise members which of these two paths we are going down once the High Court has made its decision about the applications for special leave. SWALSC will continue to act on the instructions of the Noongar people and take all necessary steps to implement the South West Native Title Settlement for the benefit of all Noongar people.
Naomi Smith compensation claim
SWALSC is aware that on the 22nd of November 2019, Naomi Smith lodged an application for compensation against the State of Western Australia in the Federal Court.
SWALSC is also aware that on the 20th of January 2020, the State of Western Australia filed an application for Summary Dismissal, and the matter is now with Federal Court.
SWALSC is NOT a party to these proceedings, therefore it is not appropriate for SWALSC to comment about that case.