Background
Six named applicants commenced a native title determination proceeding on behalf of the Dhudhuroa, Waywurru and Ngurai Illum people in November 2023. The claim covered a substantial part of central and northeastern Victoria. The Native Title Registrar’s delegate, and later the President of the National Native Title Tribunal on reconsideration, refused to register the claim because its factual material did not establish several substantive registration requirements, although both accepted that the application had been properly authorised.
After respondents questioned the claim’s characterisation as a composite application for three distinct societies, and the Taungurung respondents sought summary dismissal, the applicant applied to discontinue the entire proceeding. The proposed course was for the Dhudhuroa, Waywurru and Ngurai Illum groups to pursue separate native title applications. Because the claim group had conditioned the applicant’s authority under s 251BA of the Native Title Act 1993 (Cth), the applicant could not make a significant decision concerning the claimed land and waters without first obtaining the group’s informed consent.
Victoria neither opposed nor consented but questioned whether notice and consultation were sufficient. Pauline Mullett, the fifteenth respondent, opposed discontinuance and requested an oral hearing. Justice Hill determined the application on the papers, finding no material factual dispute that required an oral hearing.
The Court’s Holding
The Court granted leave under r 26.12 of the Federal Court Rules 2011 (Cth) to discontinue the whole proceeding. Justice Hill held that the applicant had obtained the informed consent of the DWNI claim group as a whole, satisfying the relevant condition on its authority. Although notice of the June 2026 meeting was limited and might not have satisfied the more demanding authorisation procedure in s 251B(b), that provision did not govern the decision to discontinue. The applicable condition did not prescribe a particular method for obtaining consent, so the Court could consider the meeting resolution together with written support and earlier consultation with senior group members.
The Court distinguished discontinuance from settlement: discontinuance did not finally determine anyone’s native title rights, whereas settlement would have required informed consent at a properly constituted claim-group meeting under a separate condition. The legal advice that the existing composite proceeding was flawed, the unanimous support among those consulted, and the absence of known dissent also supported granting leave.
No respondent demonstrated relevant prejudice. Discontinuance itself would not affect overlapping claims, adjacent native title rights, disputed ancestral lineages, or the Court’s management of future claims. The Court therefore permitted discontinuance and made no order as to costs.
Key Takeaways
- A native title applicant ordinarily has authority to seek discontinuance without fresh authorisation under s 251B, but must comply with any conditions imposed on its authority under s 251BA.
- Whether informed consent was obtained depends on the wording of the applicable condition; where no prescribed process exists, consent may be established through multiple meetings, consultations, and written expressions of support.
- Discontinuance differs from settlement because it does not finally determine native title rights, and leave will generally turn on the particular circumstances, including claim-group views and any prejudice to respondents.
Why It Matters
The decision explains how the Federal Court assesses discontinuance when a representative native title applicant’s authority is subject to claim-group conditions. It confirms that the stringent participation requirements governing initial authorisation do not automatically apply to every later litigation decision.
For parties managing composite or overlapping native title claims, the judgment also shows that discontinuance may allow constituent groups to reformulate their claims separately, provided applicable authority conditions are met and the change does not cause injustice to respondents.