C A T C H W O R D S
NATIVE TITLE - nature and contents of application for determination of native title - duties of Registrar - whether to accept application - what powers, duties or functions are reposed in the Registrar?
ADMINISTRATIVE LAW - is the acceptance of an application for determination of native title a reviewable decision under the Administrative Decisions Judicial Review Act?
JUDICIARY ACT s39B - is the Registrar of the Native Title Tribunal an officer of the Commonwealth?
Native Title Act 1993 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth) Judiciary Act 1903 (Cth)
Acts Interpretation Act 1901 (Cth)
National Native Title Tribunal Regulations
Mabo v The State of Queensland [No2] (1992) 175 CLR 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Edelsten v Health Insurance Commission (1990) 96 ALR 673
Harris v Bryce (1993) 41 FCR 388
Whim Creek Consolidated NL v Colgan (1991) 31 FCR 469
Legal Aid Commission of Western Australia v Edwards (1981) 61 FLR 419
Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 38 ALR 535
Burns v Australian National University (1982) 40 ALR 707
The Commonwealth Court of Conciliation and Arbitration and The President Thereof and The Australian Tramway Employees Association (The Tramways case [No.1]) (1914) 18 CLR 54
Trimbole v Dugan (1984) 3 FCR 324
R v Murray (1916) 22 CLR 437
Manson v Ponninghaus [1911] VLR 239
The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1983) 158 CLR 327
Coe v The Commonwealth (1993) 118 ALR 193
Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399
State of Western Australia v Commonwealth and Wororra Peoples v State of Western Australia (1995) 128 ALR 1
Re Waanyi People's Native Title Application (1995) 129 ALR 100
O'LOUGHLIN J.
ADELAIDE (Heard in Perth)
24 AUGUST 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
NORTHERN TERRITORY DISTRICT REGISTRY)
)
GENERAL DIVISION )No. DG6001 of 1994
B E T W E E N:
THE NORTHERN TERRITORY OF AUSTRALIA Applicant
AND
PATRICIA LANE First Respondent
AND
THE HONOURABLE ROBERT S FRENCH, THE HONOURABLE HOWARD OLNEY, THE HONOURABLE JANE MATHEWS, THE HONOURABLE HAL WOOTTEN, THE HONOURABLE FREDERICK CHANEY, SEAN FLOOD, ANTHONY MARK LEESecond Respondents
AND THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Third Respondent
AND MIRIUWONGA GAJERRONGA NINGGUWUNG YAWURRUNG ABORIGINAL CORPORATION, BEN WARD, JOHN TOBY, JIMMY WARD, RONNIE CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, PADDY CARLTON, RITA GERRARD, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS, TOBY BANMAR, RONNIE YUDUN Fourth Respondents
AND CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD, DIANNE DINGAL
Fifth Respondents
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIAN DISTRICT REGISTRY )
)
GENERAL DIVISION ) No. WAG112 of 1994
B E T W E E N:
THE STATE OF WESTERN AUSTRALIA Applicant
AND
PATRICIA LANE NATIVE TITLE REGISTRAR First Respondent
AND NATIONAL NATIVE TITLE TRIBUNAL Second Respondent
AND THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Third Respondent
AND BEN WARD, JOHN TOBY, JIMMY WARD, RONNIE CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS, TOBY BANMAR AND RONNIE YUNDUN ON BEHALF OF THEMSELVES AND ALL OTHER MIRIUWUNGA AND GAJERRONGA PEOPLES Fourth Respondents
AND CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD and DIANNE DINGAL
Fifth Respondents
MINUTES OF ORDER
JUDGE MAKING ORDER : O'LOUGHLIN J.
WHERE MADE : ADELAIDE (Heard in Perth)
DATE OF ORDER : 24 AUGUST 1995
THE COURT DIRECTS THAT:
Any party is at liberty to apply, on seven days notice, to have the matter brought on for further hearing and for consequential orders, including orders with respect to costs, and for further directions.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NORTHERN TERRITORY DISTRICT REGISTRY)
)
GENERAL DIVISION )No. DG6001 of 1994
B E T W E E N:
THE NORTHERN TERRITORY OF AUSTRALIA Applicant
AND
PATRICIA LANE First Respondent
AND
THE HONOURABLE ROBERT S FRENCH, THE HONOURABLE HOWARD OLNEY, THE HONOURABLE JANE MATHEWS, THE HONOURABLE HAL WOOTTEN, THE HONOURABLE FREDERICK CHANEY, SEAN FLOOD, ANTHONY MARK LEESecond Respondents
AND THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Third Respondent
AND MIRIUWONGA GAJERRONGA NINGGUWUNG YAWURRUNG ABORIGINAL CORPORATION, BEN WARD, JOHN TOBY, JIMMY WARD, RONNIE CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, PADDY CARLTON, RITA GERRARD, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS, TOBY BANMAR, RONNIE YUDUN Fourth Respondents
AND CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD, DIANNE DINGAL
Fifth Respondents
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIAN DISTRICT REGISTRY )
)
GENERAL DIVISION ) No. WAG112 of 1994
B E T W E E N:
THE STATE OF WESTERN AUSTRALIA Applicant
AND
PATRICIA LANE NATIVE TITLE REGISTRAR First Respondent
AND NATIONAL NATIVE TITLE TRIBUNAL Second Respondent
AND THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Third Respondent
AND BEN WARD, JOHN TOBY, JIMMY WARD, RONNIE CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS, TOBY BANMAR AND RONNIE YUNDUN ON BEHALF OF THEMSELVES AND ALL OTHER MIRIUWUNGA AND GAJERRONGA PEOPLES Fourth Respondents
AND CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD and DIANNE DINGAL
Fifth Respondents
REASONS FOR JUDGMENT
CORAM: O'Loughlin J.
24 August 1995
On 6 April 1994, a native title determination application ("the application") was lodged with the Native Title Registrar ("the Registrar") pursuant to the provisions of the Native Title Act 1993 (Cth). The several parcels of land that are the subject of the application ("the claim area") are in the north west of Australia extending from the Western Australian coast into the Northern Territory.
The claim area in Western Australia encircles the township of Kununurra and includes Lakes Argyle and Kununurra; it is said that it comprises a large part of the land that was acquired by the State of Western Australia during the 1960s and the 1970s for the purpose of developing the Ord River irrigation project. Much of the land within the claim area in Western Australia has been, so it is alleged, reserved or set aside and used for public works and utility purposes in connection with the Ord River irrigation project; it is also alleged that the claim area in that State includes tidal zones, coastal waters and three islands off the coast to the north and north-west of the Ord River. In extending eastward into the Northern Territory, the claim area has included much of the Keep River National Park.
These proceedings were instituted pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and s39B of the Judiciary Act 1903 (Cth). Both applicants are seeking (inter alia) a review of two "decisions" of the Registrar: first, the "decision" to accept the application and, secondly, the later "decision" to accept an amendment to the application. The Northern Territory of Australia first instituted proceedings in action No: DG6001 of 1994 in the Northern Territory Registry of the court. Later, in separate proceedings, the State of Western Australia instituted like proceedings in the Western Australian Registry of the Court (action No: WAG112 of 1994). In each set of proceedings the Registrar was named as the first respondent and the members of the Tribunal or the Tribunal itself were named as second respondents. Both the Registrar and the members of the Tribunal filed submitting appearances and took no further part in the matter. The Commonwealth Attorney-General intervened in each of the proceedings pursuant to the provisions in that behalf contained in s18 of the ADJR Act and was thereafter described, for convenience, as the third respondent. The fourth respondents include the group of Aboriginal people who, ultimately, were advanced as the claimants in the application before the Tribunal whilst the fifth respondents represented another group of Aboriginal people; the participation of this last mentioned group in the litigation arises because they are in dispute with the fourth respondents about the traditional ownership of a piece of the claim area. This dispute was not addressed in the current proceedings but, presumably, there might come a time when the fifth respondents would wish to argue that they should properly be regarded as the persons who should have made the claim for native title in respect of the disputed land. The fourth respondents were represented by the Aboriginal Legal Services of Western Australia Inc and the Northern Land Council represented the interests of the fifth respondents.
The various parties to the litigation agreed between themselves that it would be helpful to the ultimate disposition of the litigation if certain so-called "preliminary matters" could be determined by the court. As a result, and by consent, the court ordered in each action, pursuant to O 29 r2(a) of the Federal Court Rules, that certain questions be determined separately. Before setting out those questions in their final form (some were amended and others were withdrawn during the course of the hearing) it is desirable, first, to summarise the relevant provisions of the Native Title Act and thereafter to examine the information that is contained in the application. This summary of the provisions of the Act will not be exhaustive; it is only intended to refer to those provisions in the legislation which are of material importance in a consideration of the issues presently before the court.
The Native Title Act ("the Act") received the Royal assent on 24 December 1993. Sections 1 and 2 of the Act commenced on that day (subs2(1)) and the remaining provisions (other than Part 10 dealing with the National Aboriginal and Torres Strait Islander Land Fund) commenced on 1 January 1994, that being the date fixed by Proclamation (subs2(3)).
The objects of the Act are set out in s3:
"3. The main objects of this Act are:
(a) to provide for the recognition and protection of native title; and
(b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and
(c) to establish a mechanism for determining claims to native title; and
(d) to provide for, or permit, the validation of past acts invalidated because of the existence of native title."
This rather conventional language may be contrasted with the contents of the preamble to the Act which commences with these words:
"This preamble sets out considerations taken into account by the Parliament of Australia in enacting the law that follows."
There then follows a reference to the progressive dispossession without compensation of the Aboriginal peoples and Torres Strait Islanders of their lands; the consequence of this is stated to be that they "have become, as a group, the most disadvantaged in Australian society". The preamble then proceeds to record that the High Court has rejected the doctrine that Australia was terra nullius at the time of European settlement, holding instead that the common law of Australia:
"... recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands."
Mabo v The State of Queensland [No 2] (1992) 175 CLR 1.
The preamble also refers to a "special procedure" which it says "needs to be available for the just and proper ascertainment of native title rights and interests...". If there is a need to establish the beneficial nature of the legislation, that can be found in the latter part of the preamble where it is set out that:
"The Parliament of Australia intends that the following law will take effect according to its terms and be a special law for the descendants of the original inhabitants of Australia."
It can also be found in the statement that, for the purposes of the International Convention on the Elimination of All Forms of Racial Discrimination and the Racial Discrimination Act 1975 (Cth), the legislation will be:
"... a special measure for the advancement and protection of Aboriginal peoples and Torres Strait Islanders, and is intended to further advance the process of reconciliation among all Australians."
A National Native Title
Tribunal has been established by
force of s107 of the Act. It is of
particular significance, having regard to some of the issues that have arisen
in this litigation, to note the requirement under s109 which deals with the
Tribunal's way of operating. It is to
pursue the objective "of carrying
out its functions in a fair, just, economical, informal and prompt way"
and in conducting any inquiry it is "not
bound by technicalities, legal forms or rules of evidence". Similar provisions in s82 govern the
operation of the Federal Court when it is required to hear and determine an
application. Although this litigation is
concerned with the duties, functions and powers of the Registrar as distinct
from those of the Tribunal or the Court, the beneficial nature of the
legislation, the contents of the preamble, and the methods of operation as set
out in s109 and s82 all assist in pointing to a proposition that the Registrar
should be permitted to perform the statutory obligations that are imposed on
the holder of that office with a degree of flexibility that is in harmony with
these mandates.
Section 95 provides for the appointment by the Governor-General of a Native Title Registrar. Section 97 states that the Registrar has the powers set out in Part 3 (ss61-79) in relation to applications. The first of those sections in Part 3, s61, contains a table that sets out the applications that may be made to the Registrar and the identity of the persons who may make each of those applications. The first such application that is referred to, a "Native title determination application", is the type of application that was lodged with the Registrar in this case; it is not necessary, for the purposes of these proceedings, to consider the other kinds of application with which the section is concerned. The statutory force permitting the making of the application is found in s13, which, so far as it is applicable to these proceedings states:
"13.(1) An application may be made to the Registrar under Part 3:
(a) for a determination of native title in relation to an area for which there is no approved determination of native title; or..."
Subsection 61(2) requires the application to be "in the prescribed form" and to contain "such information in relation to the matters sought to be determined as is prescribed". Where an application is made by a person or persons claiming to hold native title with others, it is necessary to "describe or otherwise identify those others" but it is not necessary to name them or to say how many there are: subs61(3). Such a provision recognises that the people who might be entitled to benefit from a determination of native title could be numerous and scattered; it also recognises that the identity of the claimants (and ultimate beneficiaries) need not be stated with precision.
Subsection 62(1) is central to the determination of these proceedings. It provides as follows:
"(1)A native title determination application by a person or persons claiming to hold the native title in relation to an area must:
(a) be accompanied by an affidavit sworn by the applicant that the applicant:
(i) believes that native title has not been extinguished in relation to any part of the area; and
(ii)believes that none of the area is covered by an entry in the National Native Title Register; and
(iii)believes that all of the statements made in the application are true; and
(b) contain all information known to the applicant about interests in relation to any of the land or waters concerned that are held by persons other than as native title holders; and
(c) contain a description of the area over which the native title is claimed; and
(d) state the name and address of the person who is to be taken to be the claimant."
Sections 63 and 64 appear to offer the Registrar little room to manoeuvre. If the requirements of s62 are complied with, "the Registrar must accept" the application unless she is of the opinion that it is frivolous or vexatious or unless she is of the opinion "that prima facie the claim cannot be made out" (subs63(1)). In any such case, the Registrar must, thereupon, refer the application to a presidential member (subs63(2)): she has no power to reject it unless acting under the direction of a presidential member. The Registrar must also refer the application to a presidential member where she "considers that the requirements of section 62 are not complied with in relation to the application" (subs64(1)). Once again there is no power in the Registrar to reject the application.
Even though the powers of the Registrar are limited in dealing with an application, it does not mean that the Registrar does not have an important function to perform. On the contrary, it is clear that the Registrar must scrutinise an application with care. Only by that means could she properly inform herself so that she could form one or other of the opinions to which ss63 and 64 refer. The need to scrutinise may suggest, in turn, a need to investigate. That however, is another issue that has arisen in this litigation: can the Registrar investigate an application and question the information contained in the application? and if the Registrar does lawfully investigate, is it in pursuance of a dis-cretionary power or in performance of a statutory obligation?
If an application for determination of native title by persons claiming to hold native title is accepted under s63 of the Act, the Registrar must "record details of the application in the Register of Native Title claims" (par66(1)(b)); furthermore, the Registrar must give notice of the application to all interested parties in the manner that is set out in subs66(2). But, in addition to complying with par66(1)(b), the Registrar must, under the provisions of s190 of the Act, as soon as practicable after becoming aware of them, include in the Register details of various claims, including "details of any claims contained in applications given to the Registrar." In other words, the Registrar will record, not only the details of the application at the time of the acceptance of the application, but also, the details of the claims contained in the application as at the time of its earlier lodgment with the Registrar. Despite the shift in language from "details of the application" in par66(1)(b) to "details of any claims contained in applications" in par190(1)(a), it seems to me that these provisions constitute a statutory acknowledgment that an application is susceptible to amendment between lodgment and acceptance.
The term "Registered Native Title Claimant" is defined in s253 of the Act to mean a person whose name appears in an entry on the Register of Native Title Claims as the person who is taken to be the claimant in relation to land or waters. Thus, the simple act of lodging a claim gives to the claimant recognition as a "Registered Native Title Claimant". Such recognition can be important. For example, if a government is intending to perform some future act, it is required under s29 to give notice to various parties of its intention and one such party is "any Registered Native Title Claimant... in relation to any of the land or waters that will be affected by the Act".
If an application is accepted under s63, the Tribunal may make a determination in, or consistent with, the terms of the application as varied (if at all) as a result of agreement between the parties or as a result of mediation before the Tribunal: see generally, ss70, 71 and 73. Failing such a determination, the Registrar must lodge the application with the Federal Court which has jurisdiction to hear and determine applications: ss74 and 81. The parties agreed at the bar table that the application in this matter has, independently of these proceedings, already been referred to the Federal Court; it was also an agreed fact that the Governments of the Northern Territory and Western Australia had urged the Tribunal to adopt that course.
The expression "determination of native title" is defined in s225 of the Act in these terms:-
"A 'determination of native title' is a determination of the following:
(a) whether native title exists in relation to a particular area of land or waters;
(b) if it exists:
(i) who holds it; and
(ii)whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others; and
(iii)those native title rights and interests that the maker of the determination considers to be of importance; and
(iv)in any case - the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests."
Section 10 has stated that native title is recognised and protected by the Act; s11 limits the power to extinguish native title and s12 states that, subject to the provisions of the Act, "the common law of Australia in respect of native title has, after 30 June 1993, the force of a law of the Commonwealth."
Regulations 4, 5 and 6 of the National Native Title Tribunal Regulations ("the regulations") provide that a native title determination application must be in accordance with Form 1 of those regulations; it must contain the information specified in that Form and be accompanied by the documents that are referred to in the Form. In view of the many complaints that have been made about the sufficiency of the application in this matter, it is desirable to set out so much of the contents of the application and of Form 1 as are appropriate to these proceedings. In order to differentiate between the original contents of the Form 1 and the information that was inserted by the claimants in their application, the Courier typeface represents the former and the inserted information is in Helvitica bold italics.
"Native Title Act 1993
NATIVE TITLE DETERMINATION APPLICATION
Sections 13 and 61
To:
The Registrar
National Native Title Tribunal
[A. Where the application is made by a person or persons claiming to hold native title
A1. I/We Miriuwunga Gajerronga Ningguwung Yawurrung Inc. (Miriuwung and Gajerrong Families and Heritage Land Council), the applicant, apply for a determination of native title. The following information, and the documents referred to in this application, are provided for the purposes of the application.
A2. Address(es) of the applicant(s).
The Applicant's address is:-
Miriuwunga Gajerronga Ningguwung Yawurrung Inc.
PO Box 549
KUNUNURRA WA 6743
Telephone: 091 682662
Facsimile: 091 691011
A3. Name and address for service, including a telephone number and facsimile number (if any) of the person who is to be the registered native title claimant.
The Applicant's address for service is:-
Greg Benn
Aboriginal Legal Service of Western Australia (Inc.)
PO Box 8194
Stirling Street
PERTH 6849
Telephone: 09 2656666
Facsimile: 09 2211767
A4. Name and address of the representative of the applicant(s) (if any) including a telephone number and facsimile number (if any).
The Applicant's Representative is:-
Aboriginal Legal Service of Western Australia (Inc.)
PO Box 8194
Stirling Street
PERTH 6849
Telephone: 09 2656666
Facsimile: 09 2211767
A5. A description of the other persons with whom the applicant(s) claim(s) to hold title - if the application is made by (a) person(s) claiming to hold native title with others.
The Applicant hereby applies for a determination of native title on behalf of its members, the Miriuwung and Gajerrong people.
A6. A description of the area of land or waters covered by the application and a map showing the geographical boundaries of that area - the description must include the indigenous name of the area and sites within the area.
The area covered by the Application is clearly indicated in the attached series of 18 cadastral maps described below.
The boundary of the area covered by the Application is marked with a red line and includes all the coloured land within the red boundaries.
The Application includes land, inland waters, and coast as marked on the attached maps.
The different land status of each of the areas covered by the Application is represented in colour in each of the attached maps as follows:-
(1) The areas shaded GREEN - represent various types of Reserve Land as identified below;
(2) The areas shaded ORANGE - represent vacant crown land;
(3) The areas shaded BLUE - represent inland waters;
(4) The areas shaded RED - represent leasehold/freehold land as identified below;
(5) The area shaded YELLOW - represents coastal tidal plains;
Following is a specific identification of the areas covered by the Application in relation to each cadastral map:-
(THERE THEN FOLLOWS A DETAILED DESCRIPTION OF 17 DIFFERENT LOCATIONS IN WESTERN AUSTRALIA AND AN 18TH LOCATION IN THE NORTHERN TERRITORY (THE LATTER BEING THE AREA IN THE KEEP RIVER NATIONAL PARK) AND THREE NOMINATED PARCELS OF LAND THAT ARE DESCRIBED AS "ABORIGINAL FREEHOLD". THE COMPLETE INFORMATION THAT WAS SET OUT BY WAY OF DESCRIPTION OF THE 18 LOCATIONS IS SET OUT AS A SCHEDULE TO THESE REASONS FOR JUDGMENT).
A7. A description of all information known to the applicant(s) about interests in relation to any of the land or waters concerned that are held by persons other than as a native title body corporate.
The information known to the applicant about interests in relation to any of the land and waters concerned held by persons other than as a native title body corperate (sic) is identified in Paragraph A6 above. All the land covered by this Application is either Vacant Crown Land, WA Government Reserve land, or land leased or owned by the claimants as specified above.
A8. Details of all searches conducted with public bodies and authorities, and of all official title registers searched, and the results of those searches, together with:
(a) a copy of any documents that record an existing or expired interest granted over any part of the area covered by the application; and
(b) a copy of the documents of title issued as evidence of the existing or expired interest.
The applicant has conducted searches, in relation to the area covered by the application, with the WA Land Titles Office. Details of these searches are provided in Paragraph A6 above.
A9. Details of the native title rights and interests possessed under traditional laws and customs observed by the applicant(s) and other persons with whom the applicant claims to hold native title, including information about any connection that exists or did exist between:
(a) the applicant and the persons with whom the applicant claims to hold title, or the ancestors of the applicant and such persons; and
(b) the areas covered by the application.
The native title rights and interests possessed under traditional laws and customs observed by the applicant and claimants and the physical or other connection between them and the area covered by the application, are as follows:-
(THERE THEN FOLLOWS IN EXCESS OF FIVE PAGES OF DETAILED INFORMATION WHICH IS CENTRED UPON THE MIRIUWUNG\GAJERRONG ABORIGINAL PEOPLE. THE INFORMATION COMPRISES PARTICULARS OF THE COMMON PRACTICES, CUSTOMS, USAGES AND BELIEFS AMONG THOSE PEOPLE AND THEIR RELATIONSHIP TO THE CLAIM AREA. NO COMPLAINT WAS MADE ABOUT THE ADEQUACY OF THE INFORMATION THAT WAS SUPPLIED IN ANSWER TO THIS QUESTION; IT HAS THEREFORE NOT BEEN REPRODUCED).
A10.Any details or
information provided that the
applicant(s) request(s) the Registrar to keep confidential from the public
under the power given to the Registrar to do so under section 188, and the
reasons for that request.
CONFIDENTIAL INFORMATION
No request is made by the Applicant at this stage in relation to confidentiality. As further information is provided to the tribunal in support of this application, confidentiality of certain material may be sought.
A11.An outline of the type of evidence which the applicant(s) will produce to the National Native Title Tribunal to support the claim, such as historical, anthropological and genealogical documents and oral evidence from the applicant and other people.
EVIDENCE TO SUPPORT CLAIM
The type of evidence the Applicant will produce to the National Native title tribunal to support the claim is as follows:-
(1) Historical:-
Evidence relating to its practices to establish the continuation of traditional law and custom usage:-
(a) Oral history from claimants
(b) Published and unpublished research, reports, records and other written materials.
(c) Expert evidence
(2) Anthropological:-
(a) Oral evidence from claimants
(b) Published and unpublished research, reports, records and other written materials.
(c) Expert evidence.
(3) Genealogical:-
(a) Oral evidence from claimants
(b) Published and unpublished research, reports, records and other written materials.
(c) Expert evidence.
(4) Archaeological:-
(a) Oral evidence from claimants
(b) Published and unpublished research, reports, records and other written materials.
(c) Expert evidence.
(5) Ethno-botanical and biological (cultural use of natural resources):-
(a) Oral evidence from claimants
(b) Published and unpublished research, reports, records and other written materials.
(c) Expert evidence.
A12.The name of the representative Aboriginal/Torres Strait Islander body or bodies (if any) for the area covered by the claim.
The name of the Aboriginal Representative Body covered by the area of the application is:-
Aboriginal Legal Service of Western Australia (Inc.)
Note:- Although the Aboriginal Legal Service of WA is the appointed representative of the Applicant, land covered by the Application includes the Keep River National Park which is located within the Northern Territory on the Western Australian border. The Representative Aboriginal body for this region of the Northern Territory (although not the appointed representative of the Applicant) is:-
Northern Land Council
A13.Any other relevant information.
The Applicant does not seek to provide any further information in relation to the Application at this stage."
Attached to the completed application were the 18 maps to which reference was made in the answer to A6. There then followed three identical letters each dated 24 March 1994 and each addressed to the Registrar. Each letter carried the signature or mark of several Aboriginal people. All letters were in the following terms:-
"Dear Sir
Re: Miriuwunga Gajerronga Ingguwung (sic) Yawurrung - Native Tile Determination Application
We refer to the attached Application.
We, the undersigned, as Miriuwung and Gajerrong people and representatives of the members of the Applicant, hereby confirm our authorisation for the signing of the Affidavits included in this Application."
There were, in all, approximately 50 signatures or marks.
Finally, the application was accompanied by 17 affidavits. Save for the change in name, address and date, all affidavits were in identical terms. It is sufficient to set out the first of them as an example:-
"I, JOHN TOBY of Mandangala Aboriginal Community via Kununurra in the State of Western Australia, Pensioner, say on OATH*/AFFIRMATION*:
1. I believe that native title has not been extinguished in relation to any part of the area covered by the application this affidavit accompanies.
2. I believe that none of the area covered by the application this affidavit accompanies is covered by an entry in the National Native Title Register.
3. I believe that all of the statements made in the application this affidavit accompanies are true.
SWORN*/AFFIRMED* )
at Kununurra )
this 29th day of March )
1994 ) JOHN TOBY
BEFORE ME [Illegible signature]
Commissioner of Western Australia for
takings Affidavits."
In their respective applications, the Governments of the Northern Territory and Western Australia sought relief under the ADJR Act and writs of prohibition and injunctive relief under s39B of the Judiciary Act 1903 (Cth). It is not necessary to set out in detail the grounds that have been advanced in respect of the two applications as they have been temporarily overborne by the agreement to have the preliminary questions determined first.
Although the preliminary questions in the two applications differed in their content, the differences were relatively minor and it was agreed between the two parties that the two matters should be heard together. An order to that effect was made by consent on 9 November 1994. I propose therefore to set out the questions (in their final amended form) in the proceedings in Action No: WAG112 of 1994 with entries in the left-hand margin showing, where appropriate, the equivalent question in the other proceedings, DG6001 of 1994.
DG6001 WAG112 QUESTION
of 1994 of 1994
1. 1(a) 1(a) Was the decision of the first respondent ('the Registrar') made on or about 26 May 1994 pursuant to section 63 of the Native Title Act 1993 (Commonwealth) that an application for a determination of native title filed by Miriuwunga Gajerronga Ningguwung Yawurrung Inc. ('claimant') be accepted:
(a) a 'decision under an enactment' within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (Commonwealth);
2. 1(b) 1(b) Was the decision of the first respondent ('the Registrar') made on or about 26 May 1994 pursuant to section 63 of the Native Title Act 1993 (Commonwealth) that an application for a determination of native title filed by Miriuwunga Gajerronga Ningguwung Yawurrung Inc. ('claimant') be accepted:
(b) a decision amenable to review pursuant to the Judiciary Act 1903?
3. - 2(a) Was the decision of the Registrar made on or about 14 September 1994 to amend the application referred to in paragraph (1) by substituting natural persons in place of Miriuwunga Gajerronga Ningguwung Yawurrung Inc:
(a) a 'decision under an enactment' within the meaning of the Administrative Decisions (Judicial Review) Act 1977;
4. - 2(b) Was the decision of the Registrar made on or about 14 September 1994 to amend the application referred to in paragraph (1) by substituting natural persons in place of Miriuwunga Gajerronga Ningguwung Yawurrung Inc:
(b) a decision amenable to review pursuant to the Judiciary Act 1903?
5. 2(b) 3(b) Did the Registrar commit any error of law as alleged, alternatively, any error of law sufficient to substantiate the relief sought, in deciding to accept the application by reason that (if it be the fact):
(b) the application was made by a body corporate, being a corporation incorporated under the Aboriginal Councils and Associations Act 1976 (Commonwealth) and not by a natural person or persons?
6. 2(c)(i) 3(c)(i) Did the Registrar commit any error of law as alleged, alternatively, any error of law sufficient to substantiate the relief sought, in deciding to accept the application by reason that (if it be the fact):
(c) the application was not accompanied by an affidavit or affidavits sworn by the claimant which:
(i) stated the sources and grounds of the deponents' belief that native title had not been extinguished in relation to any part of the claimed areas in Western Australia, or that none of the area is covered by an entry in the National Native Title Register;
within the meaning of section 62(1) of the Native Title Act?
7. - 3(f)(iii)Did the Registrar commit any error of law as alleged, alternatively, any error of law sufficient to substantiate the relief sought, in deciding to accept the application by reason that (if it be the fact):
(f) the application did not include:
(iii)the indigenous name of the area and a description of sites within the area;
8. 2(e) 3(f)(iv) Did the Registrar commit any error of law as alleged, alternatively, any error of law sufficient to substantiate the relief sought, in deciding to accept the application by reason that (if it be the fact):
(f) the application did not include:
(iv)details of searches conducted with public bodies and authorities and official title registers searched and the results of those searches together with:
(a) copies of any documents that record an existing or expired interest granted over any part of the area covered by the application;
(b) copies of documents of title issued as evidence of the existing or expired interests;
9. - 3(f)(vi) Did the Registrar commit any error of law as alleged, alternatively, any error of law sufficient to substantiate the relief sought, in deciding to accept the application by reason that (if it be the fact):
(f) the application did not include:
(vi)any or any sufficient outline of the type of evidence, including historical, anthropological and genealogical documents, which the claimant will produce to support the claim?
10. - 3(g)(i) Did the Registrar commit any error of law as alleged, alternatively, any error of law sufficient to substantiate the relief sought, in deciding to accept the application by reason that (if it be the fact):
(g) the claimant failed to conduct any, or any adequate inquiries about, and failed to set out in the application any, or any adequate, information about:
(i) interests currently or formerly held by persons other than as native title holders over the claimed area within Western Australia;
11. - 3(g)(ii) Did the Registrar commit any error of law as alleged, alternatively, any error of law sufficient to substantiate the relief sought, in deciding to accept the application by reason that (if it be the fact):
(g) the claimant failed to conduct any, or any adequate inquiries about, and failed to set out in the application any, or any adequate, information about:
(ii)the historical use made of the claimed area by:
(a) persons other than the claimant;
(b) the claimant?
12. 2(f) 3(h)(i) Did the Registrar commit any error of law as alleged, alternatively, any error of law sufficient to substantiate the relief sought, in deciding to accept the application by reason that (if it be the fact):
(h) the Registrar failed to conduct any, or any adequate inquiries about, or failed to become informed adequately or at all about:
(i) interests currently or formerly held by persons other than as native title holders over the claimed area within Western Australia;
13. 3(h)(ii) Did the Registrar commit any error of law as alleged, alternatively, any error of law sufficient to substantiate the relief sought, in deciding to accept the application by reason that (if it be the fact):
(h) the Registrar failed to conduct any, or any adequate inquiries about, or failed to become informed adequately or at all about:
(ii)the historical use made of the claimed areas by:
(a) persons other than the claimant;
(b) the claimant?
14. 2(g) - Did the Registrar commit any error of law as alleged, alternatively, any error of law sufficient to substantiate the relief sought, in deciding to accept the application by reason that (if it be the fact):
(g) The Registrar took into account incorrect information concerning the existing interests in the claimed areas within the Northern Territory?
15. 3 4 If yes to any of 3(f)(iii), 3(f)(iv), 3(f)(vi), 3(g) are all or any of:
(a) regulation 4;
(b) regulation 5;
(c) regulation 6;
(d) Form 1, paragraph A6;
(e) Form 1, paragraph A7;
(f) Form 1, paragraph A8;
(g) Form 1, paragraph A9;
(h) Form 1, paragraph A11
ultra vires the provisions of the Native Title Act 1993?
16. - 5 Did the Registrar commit any error of law as alleged, alternatively any error of law sufficient to substantiate the relief sought, in deciding to accept the claim without prior consideration of existing and expired interests over any part of the area covered by the claim (Native Title Act 1993, s.63(1))?
17. - 6 Did the Registrar commit any error of law as alleged, alternatively, any error of law sufficient to substantiate the relief sought, by reason that the Registrar accepted an amendment to the purported application referred to in paragraph (1) to substitute natural persons in place of, or in addition to, Miriuwunga Gajerronga Ningguwung Yawurrung Inc.?
18. 4 7 If the Registrar did err for any of the reasons set out in Question (3), was such error corrected by the supply of additional information to the Registrar by the claimant or the acquisition of additional information by the Registrar subsequent to the decision of 26 May 1994 and prior to the decision of the Registrar to amend the application in the manner described in Question (2) above?
19. - 8(b) Did the Registrar commit any error of law as alleged, or alternatively, any error of law sufficient to substantiate the relief sought by reason that following the decision complained of the Registrar failed to give notice of the application to all persons whose interests within Western Australia may be affected by a determination in relation to the application in accordance with the requirements of section 65 of the Native Title Act in that:
(b) the public was not notified in the determined way (section 66(2)(b), clause 5, Native Titles (Notices) Determination No.1/93); in particular
notices of the application published in newspapers in Western Australia did not contain
(1) a clear description of the land that is affected;
(2) sufficient details of the application.
I turn now to a consideration of the various preliminary questions. The first and third questions deal with the Registrar's action in accepting the application and, subsequently, the amended application and the question of the application of the ADJR Act to those actions; I will deal with them together.
Questions 1 and 3 - Decisions and the ADJR Act.
Was the action of the Registrar in accepting the application for determination of native title a "decision under an enactment" within the meaning of the ADJR Act? It was submitted by counsel for the fourth respondent that the acceptance of an application for determination of native title is merely a procedural determination - a non-substantive step along the way to what may or may not lead to an ultimate determination that native title exists; reliance for that proposition was based on certain remarks in the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 336-337. His Honour compared "a decision which a statute requires or authorises" and a "conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision".
The latter would not, normally, be a reviewable decision unless, as the Chief Justice pointed out:
"... 'the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment'."
It was submitted, in line with these remarks, that the acceptance of an application for determination of native title under s63 of the Act could not be categorised as a decision that had the necessary quality of finality, nor did it constitute "an outcome reflecting something in the nature of a determination of an application, inquiry or dispute": Australian Broadcasting Tribunal v Bond at 336 per Mason CJ.
Northrop and Lockhart JJ, in a joint judgment in Edelsten v Health Insurance Commission (1990) 96 ALR 673 at 682 discussed this passage from the judgment of Mason CJ and in particular the statement that "another essential quality of a reviewable decision is that it be a substantive determination". Their Honours said of this:
"It is plain from what followed this passage that his Honour used the expression 'substantive determination' to distinguish a 'procedural determination', an example of which was given by his Honour, namely, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing which his Honour said would not constitute a reviewable decision because it was 'a procedural matter not resolving a substantive issue and lacking the quality of finality'. His Honour went on to say however, that it is the 'conduct' of the hearing in refusing an adjournment that is the subject of review and that to treat the refusal of the adjournment in this way is more consistent with 'conduct' than with the notion of 'decision under an enactment'."
An example of a decision that was held not to be final or operative or determinative of any issue is to be found in the judgment of Morling J, in Harris v Bryce (1993) 41 FCR 388. In that case the respondent, the Sex Discrimination Commissioner for the Commonwealth, advised the applicant, the Minister for Education for the Northern Territory, that she had received a complaint and that she was required to investigate the complaint. The applicant applied under the ADJR Act for an order of review of the respondent Commissioner's "decision" to inquire into the subject matter of the complaint. Morling J dismissed the application saying at p396:
"The decisions which are said by the applicant to be reviewable are not final or operative or determinative of any issue. Rather they are more properly described as conclusions or steps along the way in a course of reasoning leading to an ultimate decision which has not as yet been made, that is, a decision whether or not there has been a breach of the Sex Discrimination Act."
In my opinion, the act of the
Registrar in these proceedings, in accepting the application, must properly be
classified as a "decision under an
enactment" within the meaning of the ADJR Act because it was a separate decision for which specific
provision is made in the Native Title Act. It was submitted during the course of
argument that substantive rights will accrue to an applicant by virtue of the
acceptance of the application because of the requirement in par66(1)(b) that
the Registrar record details of the application in the register of Native Title
Claims. I do not believe that this
requirement deserves the emphasis that it was given during the
course or argument because, as I have already pointed out, the details of the
claim had already found their way into the register at the time of the lodgment
of the application. I do, however,
consider that the substantive nature of the act of the Registrar in accepting
the application is emphasised by the requirements of par66(1)(a) which requires
the Registrar, consequential upon acceptance, to "give notice of the application to all persons whose interests may be
affected by a determination in relation to the application". In other words the act of acceptance is an
operative decision in a practical sense as it gives rise to practical
consequences. The most important of
those consequences is the progression of the application into the Tribunal
where, perhaps, a determination may be made or, at least, a mediation will
commence. Furthermore, a decision by the
Registrar that she will accept an application has the necessary quality of
finality for that action thereby concludes the Registrar's administrative
duties for the time being.
It was also argued that the action of the Registrar in accepting the application was not a decision under "an enactment" because the action lacked the exercise of a discretion and was, instead, an action brought about by force of statute upon the happening of certain events. It was suggested that the decision of a Full Court of this court in Whim Creek Consolidated NL v Colgan (1991) 31 FCR 469 was authority for such a proposition. However, that case was merely authority for the proposition that the concept of forfeiture did not evolve out of any administrative decision that might have been made under the Customs Act 1901 (Cth). The Customs Act provided that upon the happening of certain events goods were forfeited to the Crown. Hence, the act of forfeiture was by force of statute and not as a consequence of an administrative decision. By way of contrast, however, the act of seizing forfeited goods pursuant to a different provision of the Customs Act was wholly discretionary; it required the making of a decision and such a decision was reviewable under the ADJR Act. No parallel can be drawn in these proceedings. Whilst it is true to say that the decision of the Registrar to accept the application was made by force of statute, nevertheless there were discretionary parameters vested in the Registrar in making her decision to accept the application. It is this element of discretion that is important in determining that her conduct constituted a decision.
In Legal Aid Commission of Western Australia v Edwards (1981) 61 FLR 419, Toohey J concluded that the refusal by the Registrar of the Family Court to accept from the Legal Aid Commission a notice disputing the bill of costs of a firm of legal practitioners was a "decision" and that the court had jurisdiction to review the action of the Registrar in declining to accept the document for filing. After reviewing certain authorities his Honour said:
"The effect of those authorities may be summed up for present purposes by saying that while a decision is ordinarily preceded by some thought or consideration on the part of the decision-maker, it manifests the end product of that thought or consideration and the conclusion to which they lead in some announced or published ruling or adjudication." p422.
The thought processes going through the mind of the Registrar when considering whether or not to exercise her powers under the Act would not constitute a decision: Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 38 ALR 535 at 544 per Northrop J. As his Honour pointed out, there must be "some overt act by which the conclusions reached as a result of the thought processes are manifested" in addition to the thought processes. I am satisfied in these proceedings that the relevant manifestation was a combination of the decision to accept the application, the notification of that decision to all interested persons and the entry of the details of the application in the Register.
In Burns v Australian National University (1982) 40 ALR 707 the applicant sought from the respondent a written statement of its reasons for his dismissal; he relied upon the provisions of s13 of the ADJR Act. In holding that the applicant was entitled to those reasons Ellicot J considered the meaning of the word "administrative" in the context of "decisions of an administrative character made or required to be made... under an enactment." As to this he said:
"It is obviously unwise to attempt a
comprehensive definition but, in my opinion, it is at least apt to describe all
those decisions, neither judicial nor legislative in character, which
Ministers, public servants, government agencies and others make in the exercise
of statutory power conferred on them, whether by Act of the Parliament or by
delegated legislation. In other words it
at least covers the
decisions made in executing or carrying into effect the laws of the
Commonwealth. Such decisions, as the
definition indicates, may or not require the exercise of a discretion. Usually they will. Quite often, they will, in the exercise of a
discretion, involve the application of the general to the particular, e.g. a
general rule or broadly framed power to particular circumstances." 714.
In my opinion, these remarks appropriately embrace the action of the Registrar in coming to the conclusion that she should accept the application.
Having concluded that the decision of the Registrar was a decision that is reviewable under the ADJR Act, it seems to me that the further decision to accept a change in the identity of the claimants was likewise a reviewable decision. Counsel for the Commonwealth suggested that the Registrar's action in accepting the amended application was not a "decision" for the purposes of the ADJR Act; he submitted that it was merely a procedural correction and that it should be characterised as a mere step along the way. But I think not. The identity of the claimants was fundamental; it had important legal consequences. It removed from consideration the question whether an incorporated body, acting for and on behalf of natural persons, was entitled to be a claimant for native title; after all, to assert that claimants for native title can only, by force of history and circumstance, be natural persons might not necessarily exclude a body corporate from making such an application in the name of or for and on behalf of those natural persons.
I would answer both questions in the affirmative. I turn then to a consideration of the Judiciary Act.
Questions 2 and 4 - Judiciary Act
Section 39B of the Judiciary Act 1903 (Cth) provides as follows:-
"(1)The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
(2) The reference in subsection (1) to an officer or officers of the Commonwealth does not include a reference to:
(a) a person holding office under the Industrial Relations Act 1988 of the Coal Industry Act 1946; or
(b) a Judge or Judges of the Family Court of Australia."
The primary issue, therefore, is to determine whether the Registrar of the Native Title Tribunal is "an officer... of the Commonwealth"
The person who holds the office of Native Title Registrar is an officer of the Commonwealth in my opinion; that person occupies an identifiable office and is appointed by the Governor-General: see s95. He or she is subject to removal by the Governor-General for any of the reasons that are set out in s104 and the Registrar is remunerated by the Commonwealth in accordance with the determinations from time to time made by the Remuneration Tribunal: see s100.
These are the hallmarks which qualify the Registrar as an officer of the Commonwealth: see The Commonwealth Court of Conciliation and Arbitration and The President Thereof and The Australian Tramway Employees Association (The Tramways case [No.1]) (1914) 18 CLR 54 at 79 per Isaacs J.
"I come now to s75(v) itself. The crucial words for this purpose are 'officer of the Commonwealth'. No one could of course deny that a Judge holds an office, and when directly appointed by the Commonwealth, in accepting his office and salary from and removable by the Commonwealth, he is an officer of the Commonwealth."
In Trimbole v Dugan (1984) 3 FCR 324, Woodward J came to the conclusion that a State appointed Magistrate was not an "officer of the Commonwealth" within the meaning of s39B. His Honour was of the opinion that the granting of an authorisation by the Commonwealth Attorney-General to perform a particular act cannot convert an officer of a State into an officer of the Commonwealth. He relied on a passage from the judgment of Isaacs J in R v Murray (1916) 22 CLR 437 at 452 where it was said that the phrase "officer of the Commonwealth" "connotes an 'office' of some conceivable tenure, and connotes an appointment, and usually a salary".
In my opinion the Registrar
fits within this definition and is properly to be regarded as an officer of the
Commonwealth. This conclusion means that
this court, in its original jurisdiction, is entitled to review the decision of
the Registrar to accept the native title determination application and to
grant, in an appropriate case, relief under
s39B of the Judiciary Act; it also
means, in my opinion, that the Registrar's decision to accept a change in the
identity of the claimants would likewise be capable of review by this
court. I would answer both these
questions in the affirmative.
Question 5 - Application by a body corporate
The case for the applicants was simply put: Section 61 of the Act provides that an application for native title determination is to be made by "a person or persons claiming to hold the native title either alone or with others". The concepts of corporations and statutory bodies are, in relative terms, recent inventions of the Western world and are unknown in Aboriginal law or custom. The provisions of the Acts Interpretation Act 1901 (Cth) cannot be called in aid, according to the applicants' argument, because the relevant provision, par22(1)(a) states that a reference to a person including a body corporate will not apply where a contrary intention appears; here it is said that such a contrary intention appears. While there is obvious merit in this argument, it does not accommodate the fact that the corporate applicant was not an applicant in its own right. In answer to par5A in Form 1, the applicant said:
"The applicant hereby applies for a determination of native title on behalf of its members, the Miriuwung and Gajerrong people."
It is therefore open to argument, at least, that the application was being made, beneficially, on behalf of natural persons. But I do not consider that it is necessary to pursue this matter further. The issue can be answered two ways. First, the problem raises complex legal issues and it would not be for the Registrar, at the administrative level, to make any decision on the identity of the applicants. Such a question of law would properly be determined by this court. Secondly, if, as a matter of law, the Registrar did err in accepting the application (by virtue of the named applicant being a body corporate), that error was, in my opinion, rectified later when the application was amended to name natural persons as the applicants; in such circumstances I would exercise my discretionary powers and not intervene. But my first answer means that I have concluded that the Registrar did not commit an error of law in accepting the application by reason of the involvement of a body corporate in the making of the application.
Question 6 - The adequacy of the affidavits
Subsection 62(1) of the Native Title Act 1993 (Cth) provides as follows:
"62.(1) A native title determination application by a person or persons claiming to hold the native title in relation to an area must:
(a) be accompanied by an affidavit sworn by the applicant that the applicant:
(i) believes that native title has not been extinguished in relation to any part of the area; and
(ii)believes that none of the area is covered by an entry in the National Native Title Register; and
(iii)believes that all of the statements made in the application are true; and
(b) ...
(c) ...
(d) ..."
The language of the subsection is quite clear. The applicants must state their beliefs with respect to the three subject matters and they have done that. The subsection could have easily required them to state the sources and the grounds for their beliefs but it did not and I see no reason to expand the ambit of the legislation by reading into the subsection words that are not there. The applicants relied upon the decision of Maddern CJ in Manson v Ponninghaus [1911] VLR 239 as authority for the proposition that deponents to affidavits must state the grounds of their information and belief; see also 0 33 r2(2) of the Rules of Court which is to the same effect. But the basis of that rule is evidentiary. As the Chief Justice explained:
"... that which is no evidence should not be admitted as evidence in any case in this court. If the belief of a deponent is founded on reality that can very easily be shown. If belief does not rest on any reality then it is of no importance at all." (241-242)
But the affidavits that are required to be filed with the Registrar
pursuant to the provisions of subs62(1) are not affidavits in judicial
proceedings nor is the act of the Registrar, in accepting them for filing a
judicial act. I do not consider that the
evidentiary rule for which Manson v
Ponninghaus is authority has an application to the issues in this
matter. I conclude therefore that it was
in order for the Registrar to receive the challenged affidavits. The answer
to this question is: No.
Question 7 - The indigenous name of the area
In parA6 of Form 1 there is a mandatory requirement that "the description must include the indigenous name of the area and sites within the area". I do not accept the respondents' submission that it is merely directory. It is common ground that the application did not contain this information, which, according to the submissions of the applicants, is needed to assist in establishing that the claimants for native title are traditionally associated with the land and waters that are the subject of the claim. The submissions of the applicants continued that the indigenous names may be taken as a reference to tribal or linguistic titles that are associated with a region: sites are crucial to the association of particular groups to particular locations and aboriginal land ownership laws are inextricably linked to spiritual responsibilities to the land. The applicants stressed the importance of identification of indigenous names by referring to the following passage from the judgment of Brennan J in The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1983) 158 CLR 327 at 356:
"The religious relationship of particular Aboriginal groups with their 'country' (the term customarily used to describe the land with which there is a traditional connexion) invests the country of each group with a unique significance for that group."
The respondents acknowledged this omission but met it with the argument that, no prejudice to the applicants having been demonstrated, and having regard to the beneficial nature of the legislation, any relief that might otherwise be available to the applicants should, as a matter of discretion, be refused. The primary exercise with which I am concerned at this stage of the litigation is the supply of answers to various preliminary questions. As to that, I must say that I do not think that the Registrar was in error when she accepted the application; she could not have assessed its contents and come to the conclusion that the requirements of s62 had not been complied with; the relevant provision in that section, par62(1)(c), merely required the application to -
"contain a description of the area over which the native title is claimed;"
That requirement was fulfilled even though indigenous names (as required
by parA5 of Form 1 of the Regulations) were not included in the
application. And, as it was not
suggested that the Registrar should have formed an opinion (in terms of s63)
that the application was frivolous or vexatious or that prima facie the claim
could not be made out, she had no cause to refer the application to a
presidential member and no statutory or other power to reject the
application. If, however, I should be
wrong in the conclusion that I have reached, I would invoke the provisions of
s25C of the Acts Interpretation Act
1901 (Cth) which provides that unless a contrary intention appears, and in my
opinion none does appear, "strict
compliance with the form is not required and substantial compliance is
sufficient". The recourse that is available to the applicants is to
seek from the claimants further and better particulars of their claim. If that
information is not forthcoming then the subject could be addressed before the
Tribunal or, if necessary, before the court. But I do not believe that the
Registrar committed an error of law in accepting an application for
determination of native title that omitted reference to indigenous names.
Question 8 - Details of Searches conducted by the claimants
Question 10 - Details of inquiries conducted by the claimants about other persons' interests
Question 11 -Details of inquiries conducted by the claimants about the historical use of the claimed area
These three questions can be dealt with together. For the reasons that are set out hereafter, I am of the opinion that there was no error on the part of the Registrar.
Paragraph A8 of Form 1 refers to three different (but associated) subject matters. They are:
(1) details of all searches conducted with public bodies and authorities;
(2) details of all official title registers searched, including the results of those searches; and
(3) copies of the documents that are referred to in the paragraph.
In completing their application, the claimants answered parA8 by saying that they had conducted searches in relation to the area covered by the application with the Western Australian Titles Office; they did not refer to the Northern Territory nor to searches within the Northern Territory. But they concluded by adding:
"Details of these searches are provided in Paragraph A6 above."
(That information is to be found in the schedule to these reasons).
Before considering the competing arguments about this issue it is important, in my opinion, to emphasise the printed matter in parA1 of Form 1. It allows for a person or persons to apply for a determination of native title. The next sentence then states:
"The following information, and the documents referred to in this application, are provided for the purposes of the application."
I have already made mention of the fact that the Registrar has no statutory or other power to reject an application; she can only refer it to a presidential member when, in her opinion, one or other of the matters mentioned in subs63(1) and subs64(1) exists. This emphasises the fact that the Registrar is only performing a limited administrative role. She has no power to make a quasi-judicial assessment on the quality of the application and its likelihood of success. In considering these three particular questions, the claimants have asserted, by the manner in which they answered parsA7 and A8, that they have supplied the information and the details of the searches and (perhaps) by attaching the various maps, they have asserted that they have supplied copies of relevant documents. It was not for the Registrar to make an assessment about the quality of the application in those circumstances. She would not have been able reasonably to have formed the opinion "that prima facie the claim cannot be made out".
As I have said there was an assertion that the information, that the details and that the documents had been supplied. In any event, the prescription in par62(1)(b) of the Act that the application must "contain all information known to the applicant about interests in relation to any land or waters..." has to be read, at its highest, as meaning the information that is known to the claimants at the time of the lodgment of their application. It could not be thought that they would be debarred from advancing further information that came to their attention (or the relevance of which came to their attention) after the lodgement of the application. It may be that this present application will, if it proceeds in its present form, be doomed to failure because it lacks some important particularity. But that is not to be determined by the Court in these preliminary proceedings just as it was not to be determined by the Registrar at the time of the acceptance of the application.
If, as the applicants allege, the application is deficient because of a failure to include material with respect to enquiries of appropriate public registers or details of interests in land which would be capable of extinguishing native title, that claim should be asserted by the applicants in the substantive proceedings which, as I have said, have already been referred to this court. The applicants complained, and perhaps with a degree of justification, that the plans and registers disclosing details of both existing and expired titles are publicly and readily available; they added that the fact that there may be numerous current or historical titles is not a reason for relieving the claimants of the responsibility of supplying details of the titles. But this assertion would necessitate the Registrar making a subjective, quasi-judicial assessment about the quality of every application; such conduct would exceed her statutory mandate which is limited to a referral because of the presence, in her opinion, of one or more of the grounds stated in subs63(1) and subs64(1).
Counsel for the Commonwealth went further; he argued that parA8 of Form 1 did not require claimants to conduct searches; it merely required them to disclose particulars of such searches as had been conducted. He submitted that support for his argument could be found in the legislative history. Clause 56 of the Bill, as originally introduced, required that the application be accompanied by a declaration that the claimants had conducted searches of all official title registers that are relevant in relation to title in the land or waters. Replacement of that requirement with the substantially lesser requirement that the application "contain all information known to the applicant..." is, so it was submitted, a clear indication that claimants for native title are not required to make complete and exhaustive searches before lodging their application. Although there is undoubted substance in this argument, in view of the decision I have reached, it is not necessary to express a concluded view. It is sufficient to hold in respect of each of these questions, that the Registrar was not in error in accepting the application.
Question 9 - Outline of the type of evidence
The applicants quite rightly have pointed out that in any application for native title there will need to be detailed evidence about the law and social organization of claimant groups so that the land ownership principles of the claimants' society can be ascertained. There may also be a need to lead evidence of the presence, at the time of assertion of sovereignty by the Crown, of genealogical continuity between the present day claimants and those who then occupied the land and the claimants' physical continuity with the land and waters claimed. The applicants suggest that claimants who cannot bring evidence to support these elements will fail. That proposition infers that the claimants would bear the onus of proving that native title has continued to exist - that no intervening act has occurred that would amount to the extinguishment of native title. But the question of onus of proof has yet to be resolved.
In Coe v The Commonwealth (1993) 118 ALR 193 Mason CJ, when sitting as a single justice on an application to strike out a statement of claim, said:-
"It seems to me that, if the plaintiff
asserts native title to land, then the plaintiff must
establish the conditions according to which native title subsists. Those conditions include (a) that the title
has not been extinguished by inconsistent Crown grant and (b) that it has not
been extinguished by the Aboriginal occupiers ceasing to have a requisite
physical connection with the land in question." (206)
Counsel for the fourth respondent, Mr Le Miere QC, asserted that, although the matter was not free from doubt, there was authority for the contrary proposition - that the onus of showing extinguishment of native title at common law is on the Crown. He referred, for example, to the advice of the Privy Council in Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 and to the following passage in that advice:
"A mere change in sovereignty is not to be presumed as meant to disturb rights of private owners; and the general terms of a cession are prima facie to be construed accordingly." (407)
At a later stage their Lordships went on to say that the real character of the title to land occupied by a native community was -
"... prima facie based, not on such individual ownership as English law has made familiar, but on a communal usufructuary occupation, which may be so complete as to reduce any radical right in the Sovereign to one which only extends to comparatively limited rights of administrative interference." (p409-410)
In Mabo [No2], Toohey J expressed himself quite clearly when he said at 183:
"Previous interests in the land may be said to survive unless it can be shown that the effect of annexation is to destroy them. That is, the onus rests with those claiming that traditional title does not exist."
The recent decision of the High Court in State of Western Australia v Commonwealth and Wororra Peoples v State
of
Western Australia (1995) 128 ALR 1
supports that view. In the majority
judgment of the court their Honours said:
"Although an acquiring Sovereign can extinguish such rights and interests in the course of the act of State acquiring the territory, the presumption in the case of the Crown is that no extinguishment is intended." (12)
French J considered (without deciding) this question of onus in Re Waanyi People's Native Title Application (1995) 129 ALR 100, observing that the decision in Amodu Tijani was authority for the proposition that a communal right "must be presumed to have continued to exist unless the contrary were established by the context or circumstances" (114).
Native Title is not extinguished unless there is a clear and plain intention to do so and such an intention is not revealed by a law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title: Mabo [No2] at 64 per Brennan J. Further on in his judgment his Honour went on to say at 68:-
"Where the Crown grants land in trust or reserves and dedicates land for a public purpose, the question whether the Crown has revealed a clear and plain intention to extinguish native title will sometimes be a question of fact, sometimes a question of law and sometimes a mixed question of fact and law. Thus, if a reservation is made for a public purpose other than for the benefit of the indigenous inhabitants, a right to continue enjoyment of native title may be consistent with the specified purpose - at least for a time - and native title will not be extinguished. But if the land is used and occupied for the public purpose and the manner of occupation is inconsistent with the continued enjoyment of native title, native title will be extinguished."
This passage from the judgment of his Honour gives an
indication of the nature of the enquiries that must be undertaken before a
decision can be made whether there has
been an extinguishment of native title.
If such an exercise is to be carried out, it will not be conducted by
the Registrar at the time of the lodgment of the claim. Any such final determination can only be made
after a full evidentiary inquiry before the Federal Court.
In the Waanyi decision (supra) the Registrar was of the opinion that any native title in the relevant area under claim had been extinguished by the grant of a pastoral lease over the subject land in 1883; she declined, therefore, to accept the application and referred it for the decision of a Presidential Member under subs63(3) of the Act. The reasons do not state what information was before the Registrar or how she obtained the information which led to her forming the opinion that native title had been extinguished by the grant of the relevant pastoral lease. In the course of his reasons for ruling in relation to the criteria for acceptance of a native title determination application, French J, in his capacity as President of the Tribunal, said at 111:
"It is to be noted that there is no requirement in the Act that an application be supported by evidence beyond an affidavit stating the belief of the applicant that native title has not been extinguished in relation to any part of the area under claim, that none of the area is covered by an entry in the Native Title Register and that all of the statements made in the application are true. The application must include all information known to the applicant about existing interests, a description of the area over which native title is claimed and the name and address of the claimant. There is a further requirement that an application be accompanied by prescribed documents. None of this imposes a requirement upon an applicant to submit evidence in support of the application which would make out a prima facie case in a court of law."
At a later stage in his reasons, when considering the answer to parA11 of Form 1 French J said:
"... this does not require a description of the contents of such evidence, but rather a listing of its categories." (111)
I respectfully agree; the applicant is not required to supply an outline of the evidence that will be produced, but an outline of the type of evidence that will be produced.
I conclude therefore that the answer to question 9 is - No.
Question 12 - The Registrar's failure to inquire about other persons' interests.
Question 13 - The Registrar's failure to inquire about the historical use of the claimed land.
These two questions, which can conveniently be dealt with together, are in harmony with questions 10 and 11, both of which dealt with the alleged responsibilities of the claimants to make inquiries into these matters. In my opinion, there was no obligation on the part of the Registrar to make any such inquiries. On the other hand, she is not prevented from utilising her knowledge if it is relevant to the issue. The responsibilities of the Registrar are, as a matter of common sense, to utilise such information as is contained in the application, together with her knowledge and that of her staff and, aided by such inquiries as time and circumstance might permit, to determine within the parameters of her discretion whether to accept the application or refer it on to a presidential member. She is not to sit in final judgment of the application but she is to be encouraged to make expeditious inquiries if it might assist her in the formulation of her opinion. Both questions should be answered in the negative.
Question 14 - The Registrar took into account incorrect information
This question is based on an allegation that the Australian Surveying and Land Information Group (Auslig) supplied information to the Registrar, including search particulars with respect to land in the Northern Territory, that was incomplete and inaccurate. In particular, it was claimed that certain land in the Keep River National Park had been incorrectly described as vacant Crown land when, in fact, a portion was then vested absolutely in the Conservation Land Corporation and another portion was under lease to the same corporation. I think that the answer that I have given to questions 12 and 13 is also the answer to this question. There was no obligation on the Registrar to seek out information about the status of land holdings that were included in the claimed area. At the stage of receiving the application for acceptance, there was no obligation on the part of the Registrar to consider difficult legal questions such as the status in law of a body such as the Conservation Land Corporation and whether the potential extinguishment of a piece of the claimed area vitiated an entire application or whether something akin to a "blue pencil rule" could be used then, or at some later stage, to expunge reference to the offending piece of land. These are questions to be considered by the Court if the matter is not resolved in the Tribunal. I respectfully adopt the views of French J when he said in the Waayni decision at 112:
"Section 63 of the Act applies, to the process of acceptance of an application by the registrar, a low level negative screening test. It favours the acceptance of applications. It does not contemplate any resolution by the registrar of contested questions of fact or arguable questions of law."
Question 15 - Are the regulations ultra vires?
As I have not answered any of the relevant questions in the affirmative it is not necessary to consider this question.
Question 16 -Did the Registrar commit any error of law in accepting the claim without prior consideration of other interests
My answers to questions 12 and 13 apply to this question. If information came to the attention of the Registrar that constituted a prima facie case that the claim could not be made out, she would have a statutory obligation to refer it to a presidential member. But there was no statutory or other obligation on her part to look for that information independently.
Question 17 - Amendment of identity of claimants
I have answered this question in the course of answering question 3. There was no error on the part of the Registrar.
Question 18 -Was any error corrected by the supply of additional information
As I have come to the conclusion that the Registrar did not commit any error, it is not necessary to answer this question. If, however, I am wrong and there was some error on the part of the Registrar and that error could subsequently be redressed by the supply of additional information, it would be appropriate for the Registrar to accept that additional information; and, absent any question of prejudice to a party, the court would be entitled to consider using its discretionary powers to refuse relief.
Question 19 - Inadequate notification
Section 66 of the Act imposes an obligation on the Registrar to give notice of an application to all persons whose interests may be affected by a determination in relation to the application. However, that obligation does not arise until after the Registrar has made the decision to accept the application. As this litigation has its origins in a challenge to that decision and as this litigation is dealing with a series of preliminary questions, it stands to reason that the actions of the Registrar subsequent to the making of her decision are beyond the purview of these preliminary issues. If there was a failure on the part of the Registrar to comply with the provisions of s66 that failure may well be a subject that will be argued before this court on the referred proceedings; I do not think that it would therefore be desirable for me to say anything further on the subject.
The preliminary questions having been answered, I direct that any party is at liberty to apply, on seven days notice, to have the matter brought on for consequential orders, including orders with respect to costs and for further directions.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Justice O'Loughlin.
Associate
Dated:
Counsel for the applicant : Mr C L Zelestis QC and
The State of Western Australia : Mr K Pettit
Solicitor for the applicant : Crown Solicitor for
The State of Western Australia : The State of Western Australia
Counsel for the applicant : Mr T A Pauling QC and
The Northern Territory of Australia: Ms R Webb
Solicitor for the applicant : Solicitor for the
The Northern Territory of Australia Northern Territory
No appearance for the 1st and 2nd
Respondents
Solicitor for the 1st and 2nd : Australian Government
Respondents : Solicitor
Counsel for the 3rd Respondent : Mr E Willheim
Solicitor for the 3rd Respondent : Australian Government Solicitor
Counsel for the 4th Respondent : Mr R Le Miere QC
Solicitors for the 4th
Respondent: The Aboriginal Legal
Services of Western Australia (Inc)
Counsel for the 5th Respondent : Mr R Levy
Solicitors for the 5th Respondent: Northern Land Council
Hearing Dates : 27, 28 & 29 March 1995
SCHEDULE
"(1)WESTERN AUSTRALIA
(1) MEDUSA BANKS SD 52-10, 1:250,000
(a) Vacant Crown Land
(i) Vacant Crown Land as indicated by the ORANGE shaded areas
(ii)Lacrosse Island
(iii)Kanggurryu Island
(b) Reserves - as indicated by the GREEN shaded area
(i) Pelican Island
(ii)Conservation of Flora and Fauna 31967/671
(c) Tidal grass plains dotted with natural springs as indicated by the YELLOW shaded area
(2) CAMBRIDGE GULF SD 52-14, 1:250,000
(a) Crown Land
All land indicated by the ORANGE shaded area.
(b) Reserves
(i) For the Use and Benefit of Aboriginal Inhabitants 40536/690
(ii)Natural Regeneration 35289/512
(iii)Conservation of Flora and Fauna 42155
(iv)Tropical Agriculture 18810/736
(v)Public Utility 1061
(vi)Public Utility 1166
(vii)Public Utility 1060
(viii)Point Spring Nature Reserve 2904/68
(ix)Government requirements 31165/373
(x)Public Utility 1064
(xi)Resting Place for Travellers and Stock 8663
(xii)Palm Springs Nature Reserve 42155
(xiii)All other places indicated by the GREEN shaded area.
(c) Tidal Grass Plains dotted with natural springs as indicated by the YELLOW shaded area.
(3) LISSADELL SE 52-2, 1:250,000
(a) Crown Land
(i) Monsmont Island
(ii)Guy Reid Island
(iii)All other Vacant Crown Land indicated by the ORANGE shaded areas
(b) Reserves
(i) For Government Requirements 31165/373
(ii)For Government Requirements 31165/374
(iii)For Government Requirements 31165/380
(iv)Gor Government Requirements 31165/12
(c) Lease King Location 701
Land Indicated by the RED shaded area is leased to the traditional owners.
(4) BURT RANGE NW 466-11NW, 1:25,000
(a) Crown Land
All land indicated by the ORANGE shaded areas.
(b) Reserves
(i) Recreation 41617/664
(ii)Use and Benefit of Aboriginal Inhabitants 40260/2238
(iii)Use and Benefit of Aboriginal Inhabitants 40536/690
(iv)Agricultural Research Station 1063/321
(v)Conservation and Recreation 31780
(vi)National Park 37883/1636
(vii)Natural Regeneration 35289/512
(viii)Government Requirements 31165/373
(5) PINCOMBE RANGE SW 4666-1 SW, 1:25,000
(a) Crown Land
(i) King Location 332
(ii)King Location 328
(iii)All other land indicated by the ORANGE shaded area.
As indicated by the ORANGE shaded area.
(b) Reserves
(i) Native Paintings 32446/334
(c) Lease King Location 333 and
King Location 330
Land leased by the traditional owners is indicated in the RED shaded area.
(6) PINCOMBE RANGE NW 4666-1-NW, 1:25,000
(a) Crown Land
(i) King Location 335
(ii)King Location 339
(iii)King Location 282
(iv)King Location 323
(v)All other land indicated by the ORANGE shaded area.
(7) IVANHOE NE 4666-IV-NE, 1:25,000
(a) Crown Land
As indicated by the ORANGE shaded area.
(b) Reserves
(i) Public Utility 1062
(ii)Dumas Lookout 505
(8) IVANHOE SE 4666-IV-SE, 1:25,000
(a) Crown Land
As indicated by the ORANGE shaded area.
(b) Reserves
(i) Quarry 36951/514
(ii)Park Land 38358/277
(iii)Public Utility 1062
(iv)Native Paintings 32446/234
(v)All other land indicated by the GREEN shaded area.
(9) DECEPTION RANGE NE 4666-III-NE, 1:25,000
(a) Vacant Crown Land
(i) Vacant Crown Land 715
(ii)Vacant Crown Land 716
(iii)All other land indicated by the ORANGE shaded area.
(b) Reserves
(i) Natural Regeneration 35289/512 including Lots 1, 2, 3 and 4 of Plan 18474 and Lots 2, 3 and 4 of Plan 17045 which were part of a subdivision which did not proceed.
(ii)Conservation and Recreation 31780
(iii)Cattle Experiments 30356/976
(iv)Irrigation Works 29277/313
(v)Protection of Diversion dam 37380/515
(vi)Quarry 36951/514
(vii)Gravel 30804/352
(viii)Tropical Gardens 38368/768
(ix)Recreation 29297/714
(x)Foreshore and Recreation 41812/667
(xi)National Park 37883/1636
(xii)Use and Benefit of Aboriginal Inhabitants 31504/1180
(xiii)All other land indicated by the GREEN shaded area.
(10)KUNUNURRA TOWNSITE ORD DH79 22.17 1:2000
Reserves
(i) Drainage 39000/2228
(ii)Use and Benefit of Aboriginal Inhabitants 41401
(iii)Use and Benefit of Aboriginal Inhabitants 31221/2229
(iv)Recreation and Community Facilities 29799/77
(11)KUNUNURRA TOWNSITE ORD DH79 23.16 1:2000
(a) Vacant Crown Land - as indicated by the ORANGE shaded area
(b) Reserves
(i) National Park 37883/1636
(ii)Recreation and Community Facilities 29799/77
(12)KUNUNURRA TOWNSITE ORD DH79 23.15 1:2000
(a) Vacant Crown Land
(i) King Location 715
(ii)All other land indicated by the ORANGE shaded area.
(b) Reserves
(i) Foreshore and Recreatioon 41812
(b) Vacant Crown Land - as indicated by the ORANGE shaded area.
(13)KUNUNURRA TOWNSITE ORD DH79 23.17 1:2000
Reserves
(i) Use and Benefit of Aboriginal Inhabitants 31221/2229
(ii)Use and Benefit of Aboriginal Inhabitants 41401
(iii)National Park 37883/1636
(iv)Landscape Protection and Recreation 42441/2422
(v)Drainage 39000/2228
(vi)Park 39128/2230
(vii)Recreation and Community Facilities 29799/77
(14)KUNUNURRA TOWNSITE ORD DH79 23.18 1:2000
(a) Vacant
Crown Land - as indicated by the ORANGE
shaded area.
(b) Reserves
(i) Landscape Protection and Recreation 42441/2422
(ii)Use and Benefit of Aboriginal Inhabitants 31504/1180
(iii)Use and Benefit of Aboriginal Inhabitants 26600/233
(iv)Use and Benefit of Aboriginal Inhabitants 31221/2229
(v)Park 39128/2230
(vi)Drainage 39000/2228
(vii)All other land indicated by the GREEN shaded area.
(15)KUNUNURRA TOWNSITE ORD DH79 24.15 1:2000
(a) Vacant Crown Land - as indicated by the ORANGE shaded area.
(b) Reserves
(i) National Park 37883/1636
(ii)Cattle Experiments, Department of Agriculture 30356/976
(16)KUNUNURRA TOWNSITE ORD DH79 24.16 1:2000
(a) Vacant Crown Land - as indicated by the ORANGE shaded area.
(b) Reserves
(i) National Park 37883/1636
(17)KUNUNURRA TOWNSITE ORD DH79 24.18 1:2000
Reserves
(i) National Park 37883/1636
(II)NORTHERN TERRITORY
LOCATION FITZMAURICE SHEET 7 1:500,000
(A4 extract only)
Keep River National Park (as indicated by the GREEN shaded area)
Aboriginal Freehold (as indicated by the red shaded areas) 3541,3542, and 3863."
