FEDERAL COURT OF AUSTRALIA

State of Western Australia v Native Title Registrar & Ors

[1999] FCA 1592

NATIVE TITLE – registration of native title claim – application for review of decision granting registration – whether Native Title Registrar obliged to accord procedural fairness to State in course of deciding to accept claim for registration on the Register of Native Title Claims – the extent of that obligation – compliance with statutory criteria for registration – effect of transitional provisions – sufficiency of identification of area subject to native title – sufficiency of description of native title claim group – whether Registrar’s decision unreasonable in the administrative law sense.

ADMINISTRATIVE LAW – Native Title Registrar decided to accept claim for registration on the Register of Native Title Claims - published a set of reasons to the native title claimants – State requested statement in writing of reasons for decision under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – native title claimants requested deletion of portions of those reasons before further publication – Registrar acceded to that request – State sought review of that decision – whether Registrar’s decision to delete portions of his reasons from version furnished to State was a decision to which the ADJR Act applied – whether appropriate to seek hearing of review of that “decision” simultaneously with hearing of review of the decision to register, which formed the subject matter of the statement of reasons – discussion of more appropriate means of obtaining compliance with s 13 of the ADJR Act.

Administrative Decisions Judicial Review Act 1977 (Cth), ss 3(4), 5(1), 13

Native Title Act 1993 (Cth), ss 64, 66(2),(4), 66A, 84(4), 190A, 190B, 190C   

Table A Item 11(9)

Bullen & Ors v The State of Western Australia and Minister for Minerals and Energy [1999] FCA 1490 referred to

Tooheys Limited v Minister for Business and Consumer Affairs (1981) 54 FLR 421 referred to

Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health & Anor (1995) 128 ALR 238 followed

Strickland v The Native Title Registrar [1999] FCA 1089 followed

Onus v Alcoa (1981) 149 CLR 27 applied

Kioa v West (1985) 159 CLR 550 applied

Annetts v McCann (1990) 170 CLR 596 applied

Kanda v Government of Malaya [1962] AC 322 referred to

North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 distinguished

Daniels v Western Australia [1999] FCA 686 referred to

Strickland v Native Title Registrar [1999] FCA 1530 followed

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 applied

Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 referred to

Ansett Transport Industries (Operations) Ltd v Taylor (1987) 18 FCR 498 referred to

Kanak v National Native Title Tribunal (1995) 61 FCR 103 referred to

United Airlines v Department of Transport and Communications (1990) 26 FCR 598 referred to

Commonwealth of Australia v Human Rights and Equal Opportunity Commission & Anor [1999] FCA 1524 referred to

STATE OF WESTERN AUSTRALIA v NATIVE TITLE REGISTRAR and

ARTHUR DIMER & ORS ON BEHALF OF THE NGADJU PEOPLES

W 6005 of 1999

W 6007 of 1999

CARR J

16 NOVEMBER 1999

PERTH

THE COURT ORDERS THAT:

1.         The application be allowed.

2.         The first respondent’s decision, made on 3 March 1999, be set aside.

3.         The matter be remitted to the first respondent for further consideration and determination according to law.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1.         The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     The first of the applications listed above is an application for an order of review of the decision of the first respondent, the Native Title Registrar (“the Registrar”) made on 3 March 1999, to accept the second respondents’ application for registration on the Register of Native Title Claims (“the Register”) of their claim to native title over a large area of land in the southern goldfields of Western Australia (“the Registration Decision”).  The total area is about 102,600 square kilometres.  It extends from a point about 200 kms west of Norseman for just over 600 kms east and extends about 150 kms north and south of Norseman, but the area to the south extends to the coast as one progresses eastward and includes about 140 kms of the southern coastline.  In the second application, the applicant seeks review of the Registrar’s decision (the “Deletion Decision”) to excise certain paragraphs from its published reasons for making the Registration Decision.

2                     In relation to the Registration Decision, it may be helpful to point out that acceptance of an application for registration on the Register is part of a process which is relevantly distinct from an application to the Federal Court of Australia for a determination of whether native title exists.  Such an application (to this Court) may proceed whether or not the claim is so registered.  Registration on the Register is conditional upon, amongst other things, the Registrar deciding that a prima facie case that at least some of the native title rights and interests claimed in the application can be established.  Registration confers a number of statutory benefits on registered native title claimants which are not available to unregistered claimants, including rights to negotiate.

Factual Background

3                     On 20 June 1995 the second respondents lodged an application (Application WC 95/14) with the National Native Title Tribunal (“the Tribunal”) for a native title determination.  On 30 June 1995 they lodged another such application (WC 95/17).  Those applications became subject to the Transitional Provisions of the Native Title Amendment Act 1998 (Cth), one of the consequences of which was that the applications were, and still are, taken to have been made to this Court. 

4                     On 1 October 1998 the Registrar provided the applicant with a copy of the applications and other documents relating thereto, in accordance with s 66(2) of the Native Title Act 1993 (Cth) (“the Act”).  In an accompanying letter of that date, the Registrar referred to the fact that it was open to the applicant to provide information relevant to the conditions set out in ss 190B or 190C of the Act, being the conditions governing registration.  I accept the submission, made by Mr G T W Tannin (who with Ms C J Thatcher appeared as counsel for the applicant), that the relevant paragraphs of the letter amounted to an invitation to the applicant to address those provisions and provide information to the Registrar.  On 19 November 1998 and 21 December 1998 the applicant supplied the Registrar with its contentions and information relevant to each of the statutory registration tests under ss 190B and 190C in relation to the applications.  In summary, the applicant contended that each of the applications failed to satisfy some ten of the statutory conditions for registration.  The applicant gave its reasons for those contentions.

5                     The second respondents applied to this Court to amend and combine the applications.  By orders made on 11 January 1999, 4 February 1999 and 22 February 1999, the applications were amended and combined.  Before the Registrar made the Registration Decision the second respondents provided further information to him in relation to the amended applications with a request that that information be taken into account when applying the registration test.  I shall refer to that information as “the Additional Material”.  The Registrar did not provide the Additional Material, or any information about it, to the applicant before he made the Registration Decision.  On 9 March 1999, following the Registrar’s decision to accept the claim for registration, the applicant requested from him a statement of reasons for his decision.  That request was pursuant to s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).

6                     On 6 April 1999 the applicant received from the Registrar a statement of his reasons for the decision to accept the claim for registration.  The applicant contends that a significant portion of the statement of reasons had been edited by removal of information upon which the Registrar had relied in reaching that decision.  The Registrar contends that that information was not required to be included in the statement, due to the exemption in s 13A(1)(b)(i) of the ADJR Act (i.e. that it was information supplied in confidence) or that the Privacy Act 1988 (Cth) imposed a duty on him not to disclose this information as being “personal information” within the prohibition contained in Principle 11 of the Privacy Act. 

The Statutory Framework

7                     Since 30 September 1998 when the principal provisions of the Native Title Amendment Act came into effect, all applications for native title determination and compensation are to be made and determined in this Court.  They are also referred to the Registrar to determine whether details of the claims in the applications should be included in the Register (s 190).

8                     In Bullen & Ors v The State of Western Australia and Minister for Minerals and Energy [1999] FCA 1490 at para 17, French J provided this useful summary of the registration process:

“The registration process referred to is the inclusion in the Register of Native Title Claims of details of claims contained in an application.  Under s 190 the Native Title Registrar must, as soon as practicable, include in the Register details of any claims accepted for registration under s 190A.  Section 190A imposes a duty on the Registrar to consider claimant applications for registration.  Section 190A(6) requires the Registrar to accept a claim for registration if the claim satisfies all of the conditions in s 190B, which deals mainly with the merits of the claim, and s 190C which deals with procedural and other matters (s 190A(6)).  Conditions relating to the merits of the claim to be satisfied under s 190B require identification of the area subject to native title, identification of the relevant native title claim group and of the claimed native title, satisfaction of the Registrar that there is a factual basis for the claimed native title and satisfaction of the Registrar that prima facie at least some of the native title rights and interests claimed can be established.  The Registrar must also be satisfied that at least one member of the native title group currently has or previously had a traditional physical connection with part of the land or waters covered by the application or would reasonably have been expected to do so but for things done by the Crown or a statutory authority or a leaseholder.”

9                     I shall set out progressively below the detail of the statutory provisions relevant to the various issues raised.

THE ISSUES TO BE DECIDED

Whether the applicant is “a person aggrieved” by the decision

10                  At the hearing it was common ground that the Registration Decision was a decision of an administrative character.  In their original notice of objection to competency the second respondents had contended that it was a decision of a judicial character.  That contention was later abandoned. 

11                  By their amended notice of objection to competency the second respondents contend that the applicant is not “a person aggrieved” by the Registrar’s decision and is therefore not entitled to make this application.  Section 5 of the ADJR Act requires that any application under that section for an order of review is to be made by a person who is aggrieved by such decision.  Section 3(4) of the Act relevantly provides that a reference to a person aggrieved by a decision includes a reference to a person whose interests are adversely affected by that decision.

My Reasoning

12                  The authorities, from the earliest days of the operation of the ADJR Act, show that the expression “a person who is aggrieved” is not to be given a narrow construction – see, for example, Tooheys Limited v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437.

13                  In Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health & Anor (1995) 128 ALR 238 at 252 Lockhart J said:

“In order that an applicant may show that he is a person “aggrieved”, the element of “grievance” must be special to the applicant.  He must suffer more greatly or a different way than other members of the community.  It is to be noted that the definition of “a person aggrieved” by a decision is inclusive of a person whose interests are adversely affected by the decision.  It is not exhaustive and the extent of its ambit will depend on the interpretation that the courts place on the expression in the light of the “intention to be gathered from the provision as a whole”: YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 at 402; applied in Buckle v Josephs (1983) 47 ALR 787 at 792-3.

. . .

But the applicant must establish that, if successful in the proceeding, he will gain a benefit or advantage greater than the benefit or advantage thereby conferred upon ordinary members of the public; or, in the alternative, that success in the proceeding would relieve the applicant of a disadvantage or detriment to which he would otherwise have been subject to an extent greater than ordinary members of the public: [citing Onus v Alcoa ofAustralia Ltd (1981) 149 CLR 27 per Brennan J at 75].”

14                  In Strickland v The Native Title Registrar [1999] FCA 1089 French J had to decide whether, in an application under the ADJR Act to review the Registrar’s refusal to register a claim, the State of Western Australia had sufficient interest to be joined as a respondent to those review proceedings.  I accept that the question is a different one from the question whether the State is a person aggrieved by a decision to grant registration.  However, at para 23 his Honour said this:

“In my opinion, on an application of this kind, whether or not the State is a necessary party, it is a party whose interests will be affected by the outcome of the application.  If the application is restored to the Register of Native Title Claims, the State, in its capacity as grantor of mining tenements and other forms of interest affected by Subdivision P of the Act, will be subject to the obligations to invite submissions, to negotiate in good faith and to submit itself to the arbitral process that are imposed by that Subdivision.  These are not indirect or consequential effects.  They impose statutory obligations on the State in respect of any grant of an interest affected by Subdivision P in the area of the claim.  On the other hand it can be said that the issue upon which the application is made to this Court is one not of direct interest to the State as it relates to whether registration was properly refused on the basis of a prior overlapping application with some common membership.  However the subject of overlapping claims itself is a matter of considerable and legitimate interest to the State.  It is notorious that the prevalence of overlapping claims is a matter which has impacted upon both the mediation of native title claims in Western Australia and other parts of Australia and also the administration of the right to negotiate process.  I consider therefore that the State does have a proper interest justifying its joinder because of the content of the application.  And certainly it is directly affected by the outcome.”

15                  Mr G M McIntyre, counsel for the second respondents in application W 6004 of 1999 which was heard at the same time as these applications and whose submissions were adopted by the second respondents in these applications, submitted that the above observations were obiter dicta and that the real basis for joinder of the State to those proceedings was so that there would be a contradictor to the review application.  That is not how I view his Honour’s reasons.  His Honour referred to that matter (at para 24) as being “Another consideration which is relevant in this case …”.  In any event, I respectfully agree with his Honour’s views as set out above.

16                  The second respondents (again by adopting the second respondents’ submissions in application W 6004 of 1999) sought to draw an analogy between the registration of a native title claim and the registration of an estate in fee simple.  They submitted that in the latter case, in the event that the State wished to give notice of compulsory acquisition of title, it would be obliged to engage in statutorily prescribed obligations.  Such an obligation did not, so it was put, give rise to “person aggrieved” status.  It is difficult to think of a factual situation in which that question would arise, but in any event I do not think that the analogy is sufficiently strong.  Registration of a native title claim is simply statutory recognition that the claimants have a prima facie case.  Registration of a fee simple is of course of far greater significance.  In any event, assuming, as the second respondents’ submission would appear to require, that a Commonwealth authority had vested in it power to register title to an estate in fee simple (perhaps in substitution for a leasehold estate) in a particular State, against the opposition of that State, I think it would be more than likely that the particular State would be a “person aggrieved” by that decision.  I do not find the analogy at all helpful.

17                  As an alternative submission, the second respondents submitted that there was no change affecting the interests of the applicant as an outcome of the Registration Decision.  That was because, so it was put, the claims were already registered under the Act prior to the 1998 amendments.  I reject that argument because it ignores the fact that, unless the application had been accepted for registration as complying with the conditions introduced by those amendments, it was the Registrar’s duty to remove the claim from the Register – see Item 11(9) of Table A to the Act.

18                  Ms C L Tan, counsel for the second respondents in these two applications, made some further oral submissions, which I summarise as follows:

·          the applicant had not established that the Registration Decision had any adverse effect on it, being an effect of the Registration Decision itself rather than from the statutory scheme;

·          the decision in Strickland was distinguishable as not being one concerned with s 5 of the ADJR Act within the meaning of, say, s 12 of that Act, the State had to show that it was more than simply a person interested in the making of the Registration Decision.

19                  In my view, the registration of a claim to native title adversely affects the applicant’s rights and interests, within the meaning of s 3(4)(a) of the ADJR Act.  It affects and restricts the capacity of the applicant, as owner of the land concerned, to deal with its proprietary interests.  Amongst other things, as French J pointed out in the above passage, the applicant becomes obliged by s 31(1) of the Act to invite submissions from all native title parties, to negotiate in good faith with the claimants with a view to obtaining the agreement of the native title parties to the doing of the particular act in question, and to submit itself to the arbitral process imposed by Subdivision P of Division 3 of Part 2 of the Act.

20                  In my opinion, the applicant is a person aggrieved within the meaning of that expression in the ADJR Act.  The applicant has an interest as the absolute beneficial owner of the land subject to claim or, alternatively, as the holder of radical title in that land.  The Registration Decision has significant implications for the ability of the applicant to deal with interests in its land.

21                  In reaching my conclusion that the applicant is a “person aggrieved” I have tried to make an assessment of the importance of the concern which it has with the registration of the second respondents’ claims and the closeness of the applicant’s relationship with that subject matter – see Onus v Alcoa (1981) 149 CLR 27 at 42.  My assessment is that the importance of the applicant’s concern over whether claims are to be registered over substantial areas of the State is considerable and certainly sufficient to entitle it to challenge the legality of the Registration Decision.  The applicant has governmental authority and responsibility for the subject land.  That authority and responsibility is to be used, broadly speaking, for the public benefit.  In my view, it is appropriate for the Court to give substantial weight to the applicant’s concerns about the restraints upon the development and use of the land, being restraints which the Act imposes as a consequence of the Registration Decision.  The applicant, as the government primarily responsible for much of the development and manner of use of the land, clearly has a very close relationship with the subject matter of the Registration Decision.  The Parliament has recognised this by, for example, the requirement in s 66(2) of the Act not only that it be notified of the application for registration, but that it also be supplied with all affidavits and other documents.  To characterise a State as a “person aggrieved” by a decision to register a native title claim is consistent with the statutory recognition in s 84(4) of the Act of the State as being a party to the concomitant application to this Court for a determination of native title.  Even at the earlier, perhaps legally less critical, stage of registration the applicant has a special interest in the subject matter of the Registration Decision.  I hold that it is a person aggrieved by that decision. 

Whether a breach of the rules of natural justice occurred in connection with the making of the Registration Decision (Ground 1)

Applicant’s Submissions

22                  The applicant submitted that the Registrar was under a duty to act fairly in making the Registration Decision i.e. that he had a duty to accord procedural fairness to it when he made that decision.  This was because the Registration Decision would affect the rights, interests and legitimate expectations of the applicant.  The Act did not exclude the common law rules of natural justice applying to the Registrar’s Decision to accept a native title claim for registration.  In fact there were, so it was put, express provisions in the Act demonstrating an intent to retain the common law right to be heard in opposition.  For example, the Registrar was required by s 66(2) to give to the State Minister (the Premier of the State or other Minister nominated under s 253) a copy of any native title determination application and any other documents relating to that application where any of the area covered by it was within the jurisdictional limits of the State.  If the State provided relevant information to the Registrar with respect to the application and, in particular, whether any one or more of the conditions set out in s 190B or 190C were satisfied, then the Registrar “to the extent that it is reasonably practicable to do so” must have regard to that information in considering whether to register a claim (s 190A(3)(c)).

23                  Furthermore, where, as here, an application was amended under s 64 of the Act, it becomes subject to the notice provisions in s 66A.  The Registrar was required to give notice of an amendment resulting in a change to the area or land or waters or resulting from a combination of claims, to any party to a proceeding for determination of native title in the Federal Court under Part 4 of the Act in relation to the application.  The applicant was such a party.  Section 84(4) provides that the State Minister is a party to such proceedings unless he or she gives the Federal Court written notice that the State Minister does not want to be a party.  Accordingly, the Registrar was required to give notice of any such amendment to the State Minister. 

24                  In oral submissions, Mr Tannin said that his client was not seeking a full adversarial hearing, simply disclosure of the Additional Material and an opportunity to comment.

25                  The Registrar received the Additional Material from the second respondents and he had failed to disclose it to the applicant.  It was evident from the Registrar’s Statement of Reasons that the Registrar relied on this material, because on numerous occasions he referred to it.  By relying on material which was adverse to the interests of the applicant, without disclosing that material to it, the applicant submitted that the Registrar had denied it natural justice. 

26                  In oral submissions, counsel for the applicant contended that it was not necessary to establish that the material relied upon was adverse to the applicant’s interests.  He submitted that it was sufficient that it might have been adverse to its interests, citing Kanda v Government of Malaya [1962] AC 322 at 337.

First Respondent’s Contentions

27                  The first respondent, i.e. the Registrar, chose to make written submissions on the matters of natural justice and identification of areas not covered by the application.  His submissions on the natural justice point were, in summary, as follows:

·          the Registrar’s purely administrative application of the registration test should not “take on the colour of” adjudicated proceedings;

·          while the Registrar had some discretion as to whether or not he had to have regard to material provided by the State, he had no such discretion with respect to information provided by the second respondents.  The content of procedural fairness had to depend upon what was fair in all the circumstances of the particular case;

·          the main consequence for the State where a claim is accepted for registration (or maintained in its registered state) is that its ability to develop the land within that claim is subject to the relevant requirements of the Act.  In some cases this would amount to the claimants having a right to be consulted.  In others, it would mean that the State would have to comply with either the right to negotiate procedures or observe the procedural rights found in s 24MD(6A) and (6B);

·          for the claimants, an adverse decision on registration would be that development which validly extinguished native title could take place on the area subject to claim without any negotiation or consultations taking place and without any prospect of the title reviving.  All that would be left would be a right to compensation in most circumstances;

·          the fact that the Registration Decision had to be made according to a statutory timetable which required urgent action was a factor which reduced the content of procedural fairness; and

·          copying information and sending it to the State, providing time for comment and providing the claimants further time for response would have an impact on the cost and efficiency in the context of a timetable, imposed by the Parliament, which requires prompt and efficient procedures for checking whether claims comply with s 190A of the Act.

The Second Respondents’ Contentions

28                  The second respondents adopted the submissions of the second respondents in application W 6004 of 1999.  The main points of those (adopted) submissions are summarised in this and the next paragraph of these reasons.  There was no course of conduct or express or implied representation by any person upon which any legitimate expectation of a right to receive the information or material in question could be based.  The Registration Decision did not, so it was put, affect the rights, interests or legitimate expectations of the applicant, so as to give rise to a duty on the Registrar’s part to accord procedural fairness by providing the information or material upon which that decision was based either before or after making the decision.  The applicant had no right to be heard before the decision was made. 

29                  Furthermore, the State had been served with notice of the proposed amendments to the application and had appeared at the hearing of the applications to amend.  It therefore had notice of those amendments to the application and thereby had notice of much of what the Registrar’s decision had been based upon, so far as the claim area boundaries and exclusions and the identification of the native title groups and other like issues were concerned, at least a few weeks before the Registration Decision.  In those circumstances, as the State had not sought to make any further submissions to the Registrar, it could not complain about any lack of natural justice in relation to at least the matters which were the subject of the present application. 

30                  The second respondents further submitted (by adopting the submissions of the second respondents in W 6006 of 1999 which was also heard at the same time as this application) that:

·          the amendments to the Act in 1998 provided a very limited role for the State in the registration decision-making process;

·          the purpose of the State being given a copy of the application was to facilitate timely strike-out applications in the application to this Court for a determination;

·          Clause 11(8) of Table A to the Act authorised the applicants to provide the Additional Information to the Registrar, but there was no requirement for it to be made available to the State;

·          it was wrong to characterise the Additional Information as containing allegations adverse to the applicant; it simply contained information relevant to the Registration Decision; and

·          if the applicant’s submissions were accepted, this would lead to a type of adversarial process, not envisaged by the Act, in relation to “registration test” decisions.

31                  Ms Tan submitted that even if the applicant had sufficient interest to be a person aggrieved, that would not be enough to give rise to an entitlement to procedural fairness.  She cited Ogle v Strickland (1987) 13 FCR 306 as authority for that contention.  [On my reading of Ogle v Strickland, it is a case which sheds considerable light on the expression “a person aggrieved” but says little if anything about any entitlement to procedural fairness or the content of that entitlement.  That is not surprising as it was a case in which, on a notice of motion, the originating application had been dismissed on the basis that the appellants were not persons who were aggrieved.  The Full Court upheld the primary judge’s decision to dismiss the application on that basis].

32                  Ms Tan sought to draw an analogy from the meaning of the word “detriment” in s 50(3)(b) of the Aboriginal Land Rights (Northern Territory) Act 1976 and two reports under that Act by Toohey J on 4 August 1978 in respect of a claim by the Warlpiri and Kartangarurru-Kurinpji and on 22 May 1981 in respect of the Finniss River land claim.  In those reports, Toohey J had rejected submissions that the requirement to negotiate in itself constituted detriment so far as the miners were concerned.  His Honour expressed the view that the miners’ argument was with the terms of the Act and not with a result of the grant of land in a particular land claim. 

33                  [I acknowledge the ingenuity of counsel in putting forward this analogy.  At first glance it had some appeal.  However, closer examination of the context of those two reports shows that the question was very different to that which arises in the present matter.  Toohey J construed s 50(3)(b) of the Land Rights Act as speaking of detriment that might result if a claim were acceded to i.e. the product of a grant of land to a Land Trust rather than of the Act itself.  The question which I have to decide is whether the interests of the applicant are sufficiently impinged upon by the Registration Decision as to entitle it to the degree of procedural fairness which it seeks and, if so, whether the Act has, with sufficient clarity, excluded such an entitlement.  I think that that is a very different question].

My Further Reasoning

34                  The authorities establish the following propositions:

·          natural justice or procedural fairness is a common law duty to act fairly in the making of administrative decisions which affect rights, interests and legitimate expectations: Kioa v West (1985) 159 CLR 550 at 584;

·          part of the content of that duty is that allegations adverse to a person whose interests are affected should be disclosed to that person before the decision is made so that the person may have a reasonable opportunity to contradict or comment on the adverse material: Kioa v West;

·          the common law duty will only be held not to arise where it is clearly excluded by statute “by plain words of necessary intendment”: Kioa v West at 584; Annetts v McCann (1990) 170 CLR at 596 at 598.

35                  The purpose of the new registration test, inserted via ss 190A and 190B of the Act in 1998, was explained in paragraph 29.2 of the explanatory memorandum to the amendment bill in the following terms:

“… the purpose of the registration test is to ensure that only claims which have merit are registered on the Register of Native Title Claims.  The applicant in relation to a registered native title claim is also the registered native title claimant, and may access a number of special statutory benefits which are not available to unregistered claimants.  For example, a registered native title claimant may be a negotiation party in relation to future acts covered by the right to negotiate … a registered claim is able to prevent section 24FA protection from applying to an area … and certain procedural rights are available only in relation to a registered native title claim.”

36                  Section 190A(3) provides as follows:

“(3)   In considering a claim under this section, the Registrar must have regard to:

    (a)   information contained in the application and in any other documents provided by the applicant; and

    (b)   any information obtained by the Registrar as a result of any searches conducted by the Registrar of registers of interest in relation to land or waters maintained by the Commonwealth, a State or a Territory; and

    (c)    to the extent that it is reasonably practicable to do so in the circumstances – any information supplied by the Commonwealth, a State or a Territory, that, in the Registrar’s opinion, is relevant to whether any one or more of the conditions set out in section 190B or 190C are satisfied in relation to the claim;

and may have regard to such other information as he or she considers appropriate.” (Emphasis added)

37                  In North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 620-622 the High Court considered the Registrar’s comparable function under the Act as it then stood.  It held that the Registrar was not at liberty to receive and consider information or material from a third person which cast doubt on the prima facie ability of an applicant to make out a claim.  The information and material for consideration was to be limited to what was contained in or accompanied an application. 

38                  In my view, that situation has been changed radically by, for example, s 190A(3)(c) which I have set out above.  To adopt the language of a Full Court of this Court in Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 149 ALR 78 at 91 the scheme of the Act (now) is not that registration will be granted “without input from others”. 

39                  Although there is no express provision in the Act entitling a State to provide information to the Registrar which is relevant to the Registration Decision, s 190A(3)(c) implicitly recognises its right to do so.  The Registrar is now quite clearly at liberty to receive from the State any such information.  In fact he is under an obligation to have regard to that information to the extent that it is reasonably practicable to do so and to the extent that he considers it to be relevant. 

40                  In North Ganalanja at 621 there appears the following observation:

“If the Registrar or a presidential member were at liberty to receive from a third person and to consider information or material which casts doubt on the prima facie ability of an applicant to make out a claim, the Registrar or the presidential member would be bound to give the applicant an opportunity to answer and then, perhaps, to allow the third person and the applicant further opportunities to reply to each other before the Registrar or the presidential member formed an opinion on the question whether prima facie a claim could be made out.”

41                  I have had regard to the time constraints upon the Registrar.  Item 11(6) of Table A of the Act provides that the Registrar must use his best endeavours to finish considering the claim under s 190A of the Act by the end of four months from the giving of a notice under s 29.  If he does not do so by that time, he must consider the claim under that section as soon as reasonably practicable afterwards.  I think I am entitled to take judicial notice, and I do so, of the fact that there are, or were at the relevant time, very many applications for registration of native title claims.  There is correspondence in evidence which suggests this.  But urgency does not necessarily reduce the content of procedural fairness to nothing.  It means that its content must be tailored to that circumstance, just as it is tailored to any other relevant circumstance.  In Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia the Full Court considered the content of procedural fairness in a situation where there was a much tighter timeframe than that involved in this matter.  At 96 their Honours said this:

“The difficulties presented by the limited time left to the minister, prior to the expiration of the emergency declarations and the commencement of works on the land, were also relied upon as warranting departure from what the rules of natural justice require.  In connection with that submission we observe that urgency cannot generally be allowed to exclude the right to natural justice: Kioa v West (1985) 159 CLR 550 at 615; Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1 at 15.”

42                  In view of the consequences of the Registration Decision, to which I have referred in the context of considering whether the applicant is a “person aggrieved” and in view of the new role allocated to the applicant in the amended registration procedure, I consider that the Registrar was under a duty to accord procedural fairness to the applicant during the course of making the Registration Decision.  I think that there is another factor which justifies that conclusion.  The Registrar wrote to the applicant inviting it to provide him with information relevant to the conditions set out in ss 190B or 190C of the Act.  In the very letter in which that invitation was expressed, the Registrar enclosed a copy of the application for registration and the other documents relating thereto.  In my opinion, those circumstances and the provisions of s 66(2) which required the Registrar to forward those documents to the applicant gave rise to a reasonable expectation on the applicant’s part that if the native title claimants (i.e. the second respondents) gave the Registrar further relevant information upon which he intended to rely, he would extend an appropriate degree of procedural fairness to it.  The second respondents argued that the purpose of s 66(2) is to enable the State to consider whether to make a strike-out application of the type referred to in s 66(4) i.e. to strike out the application made to the Federal Court.  That may be one of the purposes of s 66(2).  But to accept the second respondents’ argument would be to confine the purpose of s 66(2) to being only a purpose relevant to the application to the Federal Court for a determination.  There is no reason why it should be given such a narrow purpose, given the role of the Registrar in deciding whether to accept a claim for registration and particularly given the command to him in s 190A(3)(c).  The function of s 66(4) is to remove any duty on the Registrar to comply with the notice-giving obligations contained in s 66(3), if the application to the Court is struck out.  That obligation is also postponed by s 66(6) until the Registrar decides whether or not to accept a claim for registration.  I now turn to the content of the Registrar’s duty to accord procedural fairness to the applicant.

43                  In my view, the content of procedural fairness in the present matter was as follows.  When the Registrar received the Additional Material he was under an obligation to convey the substance of its content to the applicant and to give the applicant a reasonable opportunity to respond.  The Registrar could choose simply to make a fair summary of the Additional Material.  Alternatively, if it were more convenient, he might have simply photocopied that material and sent it to the applicant.  As to questions of confidentiality, the Registrar had various avenues open to him.  These include liaison with the claimants to reach an accommodation, the imposition of confidentiality conditions upon the State, and the like. 

44                  The next question is whether the Registrar acted in such a manner as to deny that content of procedural fairness to the applicant.

45                  An examination of the Registrar’s reasons discloses that he relied on the Additional Material in reaching his decision in respect of compliance with the conditions specified in s 190B(5) before he made the Registration Decision.

46                  When, on 18 November 1998 the applicant wrote to the Registrar (via its solicitor) it made submissions which included submissions that the applicant had not provided a sufficient factual basis for satisfying the requirements of (amongst other sections) s 190B(5).

47                  In my view, by failing to convey the substance of the Additional Material to the applicant and by failing to give the applicant an opportunity to comment, the Registrar breached the rules of natural justice in connection with making the Registration Decision.  I uphold the complaints made in that regard under grounds 1 and 4 of the application.

48                  I should add that, although there was no debate about the matter at the hearing, I gave consideration to whether the words “any information supplied by … a State” as referred to in s 190A(3)(c) would extend to contentions of the type contained in the applicant’s letter of 18 November 1998.  The expression “information” does not appear to be a defined term.  In my view it would extend to the giving of guidance on whether the statutory tests were satisfied – see The New Shorter Oxford English Dictionary at 1364.  In any event, in my view, the opportunity to comment after the Registrar received the Additional Material, would not be dependent upon such comment falling within the expression “information” in the abovementioned subsection.

Whether the first respondent erred in law

49                  The applicant relied on what it said were three errors of law on the Registrar’s part. The applicant maintained that these errors occurred in relation to (a) identification of the area subject to the native title claim, (b) whether the native title claim group was described sufficiently, and (c) the Registrar considering and determining that, prima facie, at least some of the native title rights claimed by the second respondents could be established.

The Information and Map – Ground 2

50                  Ground 2 of the application for review reads as follows:

“The First Respondent erred in law in that he was satisfied that the Second Respondents’ Application met the requirements of s 190B(2) of the Act that the information and map contained in the Application are sufficient for it to be said with reasonable certainty whether native title rights are claimed in relation to particular land or waters when there was no evidence or other material to justify the making of the Decision.”

51                  It can be seen that this ground depends upon s 5(1)(h) of the ADJR Act, i.e. the applicant is putting a “no-evidence” case.  When I pointed this out to Mr Tannin at the hearing, he responded by asserting that the primary complaint was error of law and that the reference to “no evidence or other material” was merely by way of particulars.  I do not think that that is right, but the parties were content to conduct the case upon the basis that the question was whether the Registrar had erred in law in being satisfied in respect of the matter referred to immediately above.

Applicant’s Submissions

52                  The applicant submitted that the purpose of s 62(2) of the Act was to provide certainty to persons whose interests may be affected.  Accordingly, the information provided by a native title claimant should enable a person whose interests may be affected by registration of the claim to know that their interests are not under claim, or if they are under claim, to be at liberty to strike out the application. 

53                  An accurate description of the internal boundaries of the areas subject to the claim was necessary, so it was submitted, for the following purposes:

·          for determining whether the area claimed overlapped with another claim; 

·          for determining whether notification is required to be given by the government party under s 29; and

·          to enable the Registrar to give notice of the details of a claim to all persons who held a proprietary interest in relation to any of the area the subject of the claim at the time when the application was filed at this Court.

54                  The applicant contended that more was required than simply a description of the outer boundaries of the area without any definition of internal boundaries by way of identification of areas not covered by the application. 

My Reasoning

55                  The essence of the applicant’s complaint is that any areas within the boundaries of the claim that are not covered by the claim are not sufficiently identified. 

56                  The method which the second respondents chose to identify areas which were not covered by their application for registration of their native title claim was to exclude various categories of land by very specific description of those categories.  The classes of land thus described can be seen at AB 57 and 58.  The categories thereby excluded were:

·          category A past acts, as defined in s 229 of the Act;

·          category A intermediate period acts as defined in s 232B of the Act;

·          any areas in relation to which a previous exclusive possession act as defined in s 23B of the Act was done in relation to an area, and, either the act was an act attributable to the Commonwealth, or the act was attributable to the State of Western Australia, and a law of that State has made provision as mentioned in s 23E of the Act in relation to the Act as at the time of the Registrar’s consideration;

·          any areas in relation to which native title rights and interests had otherwise been extinguished.  (Seven sub-categories of such land were specifically set out).

57                  The resolution of this question depends upon the proper construction of s 190B(2) when read with s 62(2) which relevantly provide as follows:

58                  [Section 190B(2)]

“Identification of area subject to native title

(2)   The Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.”

[Section 62]

“(2)   . . . the details required are as follows:

    (a)   information, whether by physical description or otherwise that enables the boundaries of:

            (i)      the area covered by the application; and

            (ii)     any areas within those boundaries that are not covered by the application;

            to be identified;

    (b)   a map showing the boundaries of the area mentioned in subparagraph (a)(i);

    . . .”.

59                  The same argument advanced by the applicant under this ground was raised by it before Nicholson J in Daniels v Western Australia [1999] FCA 686 in the context of motions for leave to amend some applications for determination of native title.  At paragraph 32 of his reasons for judgment his Honour held that a class or formula approach could satisfy the requirements of s 62(2).  His Honour held that those requirements were to be applied to the state of knowledge of an applicant as it could be expected to be at the time the application or amendment to it was made.  The applicant submitted that Nicholson J in Daniels was clearly wrong in that regard because he imported an overriding subjective element into a provision which clearly envisaged identification of objective criteria to provide objective certainty.  Mr Tannin submitted that this did not accord with the specific requirements of the Act and did not promote the purpose sought to be achieved by the introduction of the registration test provisions.

60                  For the purposes of deciding this matter, it is not necessary for me to agree or disagree with Nicholson J’s reference to the relevance of an applicant’s state of knowledge. 

61                  It can be seen from those portions of s 62(2) which I have set out above that while there must be a map showing the boundaries of the area covered by the application, there is no need for a map showing any areas within those boundaries that are not covered by the application.  The reference to boundaries of the area must be a reference to the outer boundaries and the case was conducted on that basis.  In relation to the areas within those boundaries that are not covered by the application, the requirement in s 62(2) is simply for information, whether by physical description or otherwise that enables the boundaries of areas not covered by the application to be identified.

62                  When one takes into account the reference to “reasonable certainty” in s 190B, I consider that the method adopted by the second respondents in this matter satisfies the statutory requirements.  In other words I agree, respectfully, with Nicholson J’s somewhat qualified endorsement of that approach in Daniels.  I say “somewhat qualified” because what his Honour said was this:

“Consequently a class or formula approach could satisfy the requirements of the paragraphs where it was the appropriate specification of detail in those circumstances.”

63                  At the hearing I was informed that the same point had been raised in another application which had been heard by French J on 15 October 1999 and in which judgment had been reserved but was expected very soon.  That case was Strickland v Native Title Registrar [1999] FCA 1530.  The reserved judgment in Strickland was given on 4 November 1999, the day following my reservation of judgment in this matter.  I gave the parties leave to make submissions in respect of French J’s decision in Strickland.  Only the second respondents chose to do so.  Their submissions were to the effect that I should follow French J’s decision in that case.  I have considered those submissions.

64                  In Strickland French J referred to Nicholson J’s observations in Daniels and (at para 52) said this:

“I respectfully agree with his Honour’s approach.  However, in the context of the registration test, the kind of judgment which his Honour was contemplating might be undertaken by the Court is undertaken administratively by the Registrar.  It is necessarily evaluative in character within the general parameters laid down by the statutory provisions which the Registrar must apply.  Having regard to the nature of review proceedings the Court should not interfere with the Registrar’s assessment of the sufficiency of the description unless it is shown to be informed by some error of law or procedure.”

65                  French J then dealt with the State’s arguments concerning identification of leases “currently in force” as requiring interpretation about which date was relevant.  Another argument related to references, in the application particulars, to ss 47, 47A and 47B of the Act, a matter which the State complained was peculiarly within the knowledge of the native title applicants.  There are similar references to those sections in the present matter.  At para 55 his Honour said:

“In my opinion, it is unrealistic to expect a concluded definition of the areas subject to these provisions to be given in the application.  Their applicability to any area will require findings of fact and law to be made as part of the hearing of the application.  The Act is to be construed in a way that renders it workable in the advancement of its main objects as set out in s 3, which include providing for the recognition and protection of native title.  The requirements of the registration test are stringent.  It is not necessary to elevate them to the impossible.  As to their practical application to a particular case, subject to the constraints imposed by the law, that is a matter for the Registrar and his delegates and not for the Court.”

66                  I agree, respectfully, with the views expressed by French J in Strickland.

67                  In my view, it has not been demonstrated that the Registrar erred in law when he concluded that he was satisfied that the information and map contained in the application were sufficient for it to be said with reasonable certainty whether the native title rights and interests were claimed in relation to particular land or waters.  This ground has not been made out.

Whether the native title claim group was described sufficiently – Ground 3

68                  Section 190B(3) provides as follows:

“Identification of Native Title Claim Groups

(3)  The Registrar must be satisfied that:

   (a)    the persons in the native title claim group are named in the application; or

   (b)    the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.”

69                  In their application the second respondents identified the members of their native title claim group as:

1.         The biological descendants of certain named people;

2.         Persons adopted by the biological descendants of the named people.

I shall refer to this method of identification as “the Two Rules”.

Applicant’s Submissions

70                  The applicant submitted that it was not clear whether the persons named were still living, or if not, when they lived.  Some of the persons named were identified only by a forename and, so it was put, there was no attempt to identify persons adopted by the biological descendants.

71                  The applicant submitted that the Registrar could not, from the description of the claim group in the application, determine whether a member of that claim group was also a member of any other defined claim group, nor could he be satisfied that the applicants were authorised to bring the application on behalf of all the persons in the claim group – these being two of the matters in respect of which the Registrar is required to be satisfied by s 190C(4)(b) and s 251B of the Act.

My Reasoning

72                  The question is whether the application of the Two Rules describes the native title claim group sufficiently clearly so that it can be ascertained whether any particular person is in that group.  In my view it does.  The starting point is a particular person.  It is then necessary to ask whether that particular person, as a matter of fact, sits within one or other of the descriptions in the Two Rules.  I think that the native title claim group is described sufficiently clearly.  In some cases the application of the Two Rules may be easy.  In other cases it may be more difficult.  Much the same can be said about some of the categories of land which were used to exclude areas from the claim.  It may be necessary, on occasions, to engage in some factual inquiry when ascertaining whether any particular person is in the group as described.  But that does not mean that the group has not been described sufficiently.  It is more likely to result from the effects of the passage of time and the movement of people from one place to another.  The Act is clearly remedial in character and should be construed beneficially: Kanak v National Native Title Tribunal (1995) 61 FCR 103 at 124.  In my opinion, the views expressed by French J in Strickland at para 55 (set out above) in relation to definition of areas, apply equally to the issue of sufficient description of the native title group.

73                 The second respondents, by adopting the submissions of the second respondents in application W 6004 of 1999, drew attention to the fact that even when native title determinations have been made, the Court has not, at the stage of such determination, seen the need to ascertain the particular persons who were in the group who held the native title – see Lee J in Ward v Western Australia (1999) 159 ALR 483 and Olney J in Yarmirr v Northern Territory [1998] FCA 771 and Hayes v Northern Territory [1999] FCA 1248.  I note that in Hayes his Honour used a formula to identify the person who held native title.  That formula was to some extent similar to the one used by the second respondents in this matter.  It is not necessary for me to decide in this matter whether the approach taken by their Honours in those determination cases is appropriate and sufficient to satisfy the identification requirements set out in s 190B(3).

74                 I do not consider that this ground has been made out.

Ground 4 – Further error of law

75                  The applicant contended that the Registrar had erred in law in considering and determining, pursuant to s 190B(6) of the Act, that at least some of the native title rights claimed could be established.  This ground was subsumed into Ground 1 and argued under that ground i.e. that there had been a breach of the rules of natural justice.

Conclusion

76                  As I have found that the first respondent denied the applicant procedural fairness, there will be an order setting aside the Registration Decision and an order referring the matter to the Registrar for further consideration and determination according to law.

Application W6007 – The Deletion Decision

77                  In this application, the applicant seeks review, under s 5 of the ADJR Act, of the Registrar’s decision, which I have termed the “Deletion Decision”, to excise certain portions of its reasons for making the Registration Decision in the version which he supplied to the applicant pursuant to the request, made by it under s 13 of the ADJR Act, for a statement of his reasons for making that decision (i.e. the Registration Decision).  The portions deleted included, so the applicant submitted, names of deponents of affidavits and information upon which the Registrar had relied in making the Registration Decision.  The applicant complains that the making of the Deletion Decision was an improper exercise of the power conferred by the Act.

78                  This ground is put on three bases.  The first basis is that by the Deletion Decision, the Registrar denied the applicant the opportunity to consider whether or not, in making the Registration Decision, he had taken an irrelevant consideration into account, or had failed to take a relevant consideration into account or had exercised the power in a way that was unreasonable in the administrative law sense.  Secondly, the applicant contends that the Deletion Decision was an improper exercise of power in that it constituted an abuse of the relevant power.  Thirdly, the applicant asserts that the Deletion Decision was an improper exercise of power in that it constituted an exercise of the power that was uncertain. 

Applicant’s Submissions

79                  The applicant referred to two pages in the Registrar’s Statement of Reasons where, so it contended, it was evident that the Registrar had relied on material received from the second respondents before making the Registration Decision which he had failed to disclose to the applicant.  The applicant submitted that the Statement of Reasons was thus so inadequate as to involve or constitute an error of law. 

Is this Application Competent?

80                  The first respondent did not object to the competency of this application.  The second respondents did so object, but only on the ground that the applicant was not “a person aggrieved” being the same ground advanced in respect of the application for review of the Registration Decision. 

81                  At the hearing I raised with Mr Tannin my concerns that the Deletion Decision, whereby the Registrar decided to remove certain portions of a set of reasons before he furnished that edited version as a statement under s 13 of the ADJR Act, was a decision to which the ADJR Act applied.  Mr Tannin explained that his client had sought separate review of that decision in response to the second respondents’ assertion to it, at or about the time these two applications were filed, that the Deletion Decision was a separate decision.  He submitted that the Deletion Decision “… determined all the things that we were concerned about in terms of whether or not irrelevant considerations have been taken into account and whether relevant considerations have properly been taken into account and whether the power is properly exercised”.  It was quite clear that Mr Tannin was referring to those issues in relation to the Registration Decision.  He was seeking to characterise the Deletion Decision as being substantive because the deletions made it impossible or difficult to challenge the Registration Decision.

82                  Mr Tannin contended that the Deletion Decision was made under an enactment, namely s 13 of the ADJR Act.  But he was unable to cite any case in which it has been held that a decision to provide a statement of reasons which the recipient considered did not comply with s 13 of the ADJR Act, was itself a decision to which the ADJR Act applied and was thus reviewable under s 5 of that Act.

83                  In my opinion, the Deletion Decision was not a decision to which the ADJR Act applied.  The decision which the applicant really wants to have reviewed is the Registration Decision.  It is common ground that that decision was one to which the ADJR Act applies.  But, in my view, the Deletion Decision is not a substantive determination or otherwise a decision of the type referred to by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-337 (with whom Brennan and Deane JJ agreed).  If a decision-maker furnishes a statement of reasons which a person considers is inadequate, or does not comply with s 13, then that person may apply to the Court for an order under s 13(7).  That was the course followed in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 and Ansett Transport Industries (Operations) Ltd v Taylor (1987) 18 FCR 498.  The jurisdiction to make such an order may also be found in s 23 of the Federal Court of Australia Act 1976 (Cth) and s 39B of the Judiciary Act 1903 (Cth) as discussed by Hill J in United Airlines v Department of Transport and Communications (1990) 26 FCR 598 at 607.  Those are the proper ways in which to challenge a statement of reasons as being inadequate, whether in the course of proceedings to review a substantive administrative decision or before deciding to do so.  To the extent that such challenges to the statement are successful, then the applicant (and eventually the Court) may be in a better position to assess the validity or otherwise of the substantive decision sought to be reviewed and to which the statement of reasons relates.  Simultaneously to bring to the one hearing both the substantive decision and the “decision” to provide an allegedly inadequate statement of reasons is not how these parts of the statutory administrative law scheme are generally intended to work.  As I understand the authorities and the policy reflected in s 13, its provisions are intended to be auxiliary and facilitative to the consideration of whether to bring proceedings for judicial review and to assist in the disposal of any such proceedings which may, as a result of such consideration, be instituted.  There may be exceptional cases where compliance with s 13 is reviewed at the final hearing of a review of a substantive decision but this is not, in my opinion, such an exceptional case.

84                  Since writing the above, I have read the reasons for judgment of the Full Court in Commonwealth of Australia v Human Rights and Equal Opportunity Commissioner & Anor [1999] FCA 1524 which was delivered the day after I reserved judgment in this matter.  Although the factual circumstances in that case were different from those in this matter, the approach taken by the Court in characterising a notice of a finding as not being a decision reviewable under the ADJR Act, provides, I think, some support for the views which I have expressed above.

85                  For those reasons, I will dismiss the application to review the Deletion Decision as being incompetent.

Associate:

Dated:              16 November 1999