FEDERAL COURT OF AUSTRALIA

Ward v Registrar, National Native Title Tribunal

[1999] FCA 1732

NATIVE TITLE – registration of native title claim – application for review of decision refusing registration – whether Registrar erred in deciding that native title claim group was not described sufficiently clearly – whether error in failing to be satisfied that applicants were authorised by all members of the native title claim group.

Native Title Act 1993 (Cth) ss 190B(3), (4), 190C(4)(b)

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

Strickland v Native Title Registrar [1999] FCA 1530 followed

Mabo v Queensland (No. 2) (1992) 175 CLR 1 referred to

Ward v State of Western Australia (1998) 159 ALR 483 referred to

Delgamuukw v British Columbia (1991) 79 DLR (4^th) 185 referred to

BEN WARD & ORS v THE REGISTRAR, NATIONAL NATIVE TITLE TRIBUNAL, THE STATE OF WESTERN AUSTRALIA and THE KIMBERLEY LAND COUNCIL

W 6003 of 1999

CARR J

13 DECEMBER 1999

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicants pay the costs of the second and third respondents.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application for an order of review of the decision of the first respondent, the Native Title Registrar (“the Registrar”).  On 26 March 1999 a delegate of the Registrar decided to reject the applicants’ application for registration on the Register of Native Title Claims of their claim to native title over, in the main, three pastoral leases in the East Kimberley district of Western Australia (“the Registration Decision”).

2                     The question is whether the Registrar made any reviewable error in failing to be satisfied that:

·          the persons in the applicants’ native title claim group were described sufficiently clearly so that it could be ascertained whether any particular person was in that group; or

·          the applicants were authorised by all members of that group to make the application on their behalf.

3                     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 considering that, prima facie 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.

4                     The third respondent, the Kimberley Land Council, represents a group of eleven persons who claim to be members of the native title claim group and who say that they have not authorised the applicants to make the native title claim on their behalf.

Factual Background

5                     On 10 August 1994 the applicants lodged an application (Application WC 94/6) with the National Native Title Tribunal (“the Tribunal”) for a native title determination.  I shall refer to that application as “the Original Application”.

6                     On 27 March 1995 the Original Application was accepted by the Registrar and placed on the Register of Native Title Claims.  On 30 September 1998 the principal provisions of the Native Title Amendment Act 1998 (Cth) (“the Amendment Act”) came into force.  One of the consequences of the Amendment Act was that the Original Application was, and still is, taken to have been made to this Court.  Another consequence was that, to remain on the Register, the claim had to satisfy more stringent tests than had previously been the case.  On 22 December 1998, and again on 4 January 1999, the applicants applied to this Court for leave to amend and further amend, respectively, the Original Application.  On 31 December 1998 and 26 February 1999 respectively the Court granted leave to the applicants to do so.  On 3 March 1999 the applicants filed a re-amended application.

The Statutory Framework

7                     Since the principal provisions of the Amendment Act came into effect on 30 September 1998, all applications for native title determination 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 - see s 190 of the Native Title Act 1993 (Cth) (“the Act”).

8                     In Bullen & Ors v 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 the 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                     Section 190B(3) of the Act 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.”

10                  Section 190C(4) and (5) provide as follows:

Identity of claimed native title holders

(4)       The Registrar must be satisfied that either of the following is the case:

            (a)        the application has been certified under paragraph 202(4)(d) by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; or

            (b)        the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.

Requirements for uncertified applications

(5)       If the application has not been certified as mentioned in paragraph (4)(a), the Registrar cannot be satisfied that the condition in subsection (4) has been satisfied unless the application:

            (a)        includes a statement to the effect that the requirement set out in paragraph (4)(b) has been met; and

            (b)        briefly sets out the grounds on which the Registrar should consider that it has been met.”

ISSUES TO BE DECIDED

Whether the native title group was described sufficiently - Ground 1(a)

11                  In ground 1(a) of their Grounds of Application, the applicants claim that the Registrar erred in deciding that the persons in the claim group were not described sufficiently clearly so that it could be ascertained whether any particular person was within the group.  The applicants contend that a detailed description was provided of the means by which a person was identified as a member of the group.

12                  In their re-amended native title application dated 2 March 1999 the applicants identified the members of their native title claim group as:

“The Miriuwung Gajerrong people including the named claimants being Ben Ward, John Toby, Jimmy Ward, Ronnie Carlton, Jeff Janama, Button Jones, Ben Barney, Dodger Carlton, Kim Aldus, Murphy Simon, Sheba Dignari, Joe Lissadell, Peter Newry, Toby Banmar, Ronnie Yundun, and Chocolate Thomas, also including those people who are descended from the traditional owners of the land and waters claimed at the time of sovereignty, including those considered within the native title claim group by way of birth, adoption, marriage or other traditionally recognised method of inclusion who today identify themselves as Miriuwung or Gajerrong.

Further information describing the members of the claim group is set out in Attachment 3 referred to in Schedule T.”

13                  Attachment 3 (referred to above) was a thirteen page document dated 17 July 1998 prepared and signed by Mr P Kennard who appeared as counsel for the applicants at the hearing of this application.  It was entitled “Attachment 3: Report on Claimants’ Response to Criteria Indicating an Ongoing Traditional Connection with Land”.  I set out below some of the relevant passages of that document:

“1.       Specific identification of claimants

The claimants are Miriuwung and Gajerrong peoples.  They comprise two closely related peoples.  Their present closeness is based on geographic proximity of their traditional territories, historical ties, intermarriage, closeness of language and shared laws and customs.  There is no requirement in the Native Title Act or common law for the claimants to prove each and every individual member of the claimant group.  All that is required is that the claimants prove the existence of the Miriuwung and Gajerrong people/community.  The “determination of whether a particular person is a member” is a matter entirely for the group itself.  It is not for the NNTT, a Court or any Respondent.  What is important is that there exists means by which individuals are accepted and recognised as members of the claimant group.  In the present case, such means include:

         (1)     descent from a Miriuwung or Gajerrong ancestor/s;

         (2)     conception, birth and residence in Miriuwung and Gajerrong territory;

         (3)     language; and

         (4)     identification by others as Miriuwung and/or Gajerrong.

2.      An established cohesive social group with common identity which constitute an organised and identifiable community

Claimants identify themselves as members of the Miriuwung and Gajerrong groups.  Some may also identify as “mixed” Miriuwung/Gajerrong.  They distinguish themselves from other neighbouring groups such as Jaru, Gija, Nyarinman and Jaminjoong.”

14                  There then followed a reference to evidence in relation to the Miriuwung and Gajerrong peoples which was said to disclose “… that they are closely bound together as a people and identify as a people …” having regard to features, values or experiences of the type which were set out in a list of some seven items.  They included biological/social descent ties, kinship ties, a shared language, shared laws and customs and shared ritual and religious knowledge.

15                  Later in the document there was an assertion that the claimants could “provide” biological descent from Aboriginal people who were in the occupation of the area claimed at the time of sovereignty.  A list naming and describing nine such persons were set out.  It should be noted that this list was referred to as only providing some examples.

16                  The Registrar’s delegate acknowledged that s 190B(3) of the Act did not require that, at the time of consideration for registration, she should be able to identify every person who belonged to the native title claim group.  But she referred to the specific requirement of s 61(4)(b) [which is mirrored in s 190B(3)(b)] that the application must describe the persons in the native title claim group sufficiently clearly so that it can be ascertained whether any particular person is in that group.

17                  The delegate accepted, as a matter of course, that there was no uncertainty about the persons named as applicants being included in the claim group.  She expressed the view that the extended description in the application itself, whether considered in terms of each individual element or together, was too uncertain to meet the requirement of a “sufficiently clear” description.  Attachment 3, so the delegate held, did not remedy those uncertainties.  The delegate identified various problems with Attachment 3, including:

·          the difficulty of identifying a person as being descended from a traditional owner without the traditional owners being named;

·          the reference to “those considered within the native title claim group by way of birth” without explanation as to whether this meant birth to a particular descendant, birth in a particular area, or birth to a person who might be related to a descendant by marriage, again without identifying the ancestors;

·          the reference to the inclusion in the claim group by “other traditionally recognised method(s) of inclusion” where the description of those traditionally recognised methods was not exhaustive.

18                  The delegate then said this:

“It is not clear how many of the criteria would need to be met for someone to be accepted by the group or to consider themselves a part of the group.  It is difficult to judge to what extent there may be differences of opinion and if there is uncertainty, who within the group would have authority to determine the dispute?

This range of difficulties leads me to conclude that the description provided in Schedule A, even with the further information provided in the Report which is attached, does not sufficiently clearly describe the members of the claim group.”

19                  The delegate then turned to a dispute about whether the applicants were authorised by all of the members of the native title claim group to make the application on their behalf.  Her decision on that matter forms ground 1(b) of this application, but it is also of relevance to the question whether the delegate erred in concluding that the persons in the group were not described sufficiently clearly.  Eleven affidavits had been forwarded to the Registrar by the Kimberley Land Council on behalf of deponents who disputed the applicants’ authority to make the application.  In turn, the applicants contended that ten of those deponents were not part of the native title claim group.  The delegate observed in her reasons that she could not ascertain from the claim group description whether any of the ten deponents were in fact included in the claim group.  She said that this confirmed her conclusion that the claim group description was not sufficiently clear to meet the intention of s 190B(3)(b).

My Reasoning

20                  In deciding whether there has been any reviewable error on the delegate’s part, I propose to take a similar approach to that taken by French J in Strickland v Native Title Registrar [1999] FCA 1530.  In particular, I refer to his Honour’s observations at par 44 in that case:

“44.   It is important to bear in mind in the review process the main objects of the Act set out in s 3 which are unchanged by the amendments and particularly the object relating to the protection of native title.  It is also necessary to bear in mind the administrative character of the registration test and the time constraints under which it is to be applied.  A significant margin of appreciation must be allowed for the experience and detailed administrative knowledge of the Registrar and his delegates in making the largely evaluative judgments on whether applications comply with the statutory conditions of registration.  Their reasons are not to be scrutinised finally and minutely with an eye keenly attuned to error – Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.”

21                  In my opinion, the delegate did not err in finding that she was not satisfied that the persons in the applicant group were described sufficiently clearly so that it could be ascertained whether any particular person was in that group. 

22                  The delegate gave due consideration to the descriptions proffered by the applicants in Schedule A of the application and in Attachment 3. 

23                  It is apparent from the delegate’s reasons that her main concern (but not her only concern) was that the traditional owners were not named.  It is not necessary for me to decide whether in every application for registration the traditional owners must be named.  In this matter the delegate identified additional difficulties, some of which I have referred to above.

24                  The applicants relied upon certain passages in Mabo v Queensland (No. 2) (1992) 175 CLR 1 at 61 and 70 and in Ward v State of Western Australia (1998) 159 ALR 483 at 503 and Delgamuukw v British Columbia (1991) 79 DLR (4^th) 185 at 282 for their contention that it was not necessary to identify each and every member of the claim group. 

25                  I think that there are at least two answers to that contention.  First, the delegate’s decision was not based on the proposition that it was necessary to identify each and every member of the claim group.  The delegate clearly understood that the test was whether the group was described sufficiently clearly so that it could be ascertained whether any particular person was in the group i.e. by a set of rules or principles.

26                  Secondly, as the delegate also recognised, the statutory preconditions for registration were not conditions which had to be satisfied in Mabo, Ward or Delgamuukw.  As the delegate noted in her reasons:

“The scheme of the current Act allows applications to go forward for mediation and determination even if not registered.  This allows scope for a broader and more general description of the native title claim group for the purposes of recognition of native title than for the purposes of registration.”

27                  In my view, it was clearly open to the delegate to find that she was not satisfied that the persons in the claim group were described sufficiently clearly within the requirements of s 190B(3)(b).  The matter is largely one of degree with a substantial factual element.  The problems which the delegate identified, some of which I have referred to above, including the impossibility of deciding whether ten of the deponents who denied the applicants’ authority, demonstrate that such a conclusion was open to her.  There was no reviewable error on the delegate’s part.

Whether the Registrar correctly applied ss 190C(4)(b) and 190C(5) – Ground 1(b)

28                  In ground 1(b) of their Grounds of Application, the applicants claimed that as the Registrar had found, as a reasonable inference, that the applicants were elected by their local group and were thereby authorised by all members of the group, the Registrar should have proceeded to accept that the requirements of s 190C(4)(b) and (5) had been met. 

My Reasoning

29                  As I have mentioned above, the Registrar had received eleven affidavits from deponents who swore that they were members of the Miriuwung Gajerrong native title claim group and had not been consulted about authorising anyone to make and deal with the application.  All but one of the deponents swore that they did not authorise the first-named applicant to “do business” on their behalf.  The applicants relied upon the following statement in the delegate’s reasons:

“I do not have precise statements that the named applicants are authorised by all the other persons in the native title claim group.  However, I think it is a reasonable inference that because the traditional owners represented and were authorised by their local group, they were elected to be the applicants and thereby authorised by all members of the group.”

30                  The applicants contended that this finding should have been sufficient to satisfy the requirements of authorisation for the purposes of the registration test.  However, when that passage from the reasons is seen in the context of the immediately following passages, it can be seen to be in the nature of a provisional inference at best.  That is, provisional in the sense of being subject to the concerns expressed at p 39 of the delegate’s reasons.

31                  On that page of her reasons, the delegate referred first to the fact that the meetings deposed to by the applicants in their affidavits were held in 1994, but that there had been several amendments and significant changes to the application since then and that the applicants made no reference to any specific or more recent authority to deal with those significant changes.

32                  Secondly, the delegate referred to the eleven affidavits.  The delegate said this:

“I cannot ascertain whether these people are members of the claim group.  If they are there is a real dispute about the application being properly authorised.  If they are not members of the claim group then it would not matter that they had not authorised the applicants to make and continue the application.  However, there is a possibility that these deponents are members of the claim group.  If they are, their affidavits raise a serious question in my mind about whether the applicants have the requisite authority. 

Even putting aside any misgivings I have about the applicants’ reliance upon meetings in 1994, I could not conclude that the applicants were properly authorised unless I first found that the 11 deponents (Ms Brown and others) are not members of the claim group.  I am not in a position to make a finding either way about their membership.  In these circumstances I am not satisfied that the applicants have been authorised by all members of the group.  I find that the application does not comply with sections 190C(4) and (5).”

33                  The applicants submitted that only one of the deponents “identified as Miriuwung or Gajerrong”.  This was based upon the fact that in her affidavit Ms Brown, in addition to stating that she was in the Miriuwung Gajerrong native title claim group, swore that she was “a Miriuwung person”.  As I have mentioned, each of the eleven deponents swore that they were in the Miriuwung Gajerrong native title claim group. 

34                  The applicants further submitted that Lee J in Ward v Western Australia had made a clear distinction between Gajerrong people and other Aboriginal people with rights and interests in the area.  They contended that Lee J had not included the deponents in the Miriuwung or Gajerrong people and that had the Registrar correctly applied the law relating to membership of a claim group, it should have been ascertained that the deponents were not members of that group.

35                  I do not read the passages in Lee J’s reasons upon which the applicants rely in this matter as making the findings which they asserted.  I do not read his Honour’s reasons as excluding the deponents from the native title claim group.  Even if his Honour had done so in relation to that claim, that would not necessarily have bound the Registrar to find that the deponents were not members of the native title claim group in relation to the land claimed in Application WC 94/6.

36                  The applicants’ submissions boil down to an argument on the merits i.e. that the delegate should have disregarded the objections from the eleven deponents. 

37                  In my opinion, it was up to the delegate to decide what weight she would give to the matters raised by the eleven deponents.  She decided that they were sufficient to prevent her from being satisfied that the applicants had been authorised by all members of the native title claim group.  I think that such a conclusion was clearly open to her in the circumstances.  The eleven deponents had gone on oath to say that they were members of the native title claim group.  There was no affidavit or other evidence to the contrary from the applicants, only an assertion from their solicitors.  Furthermore, as the delegate noted, there was no means whereby she could reject the deponents’ claims to be members of the native title claim group.

38                  I find that in reaching her conclusion on the question of authorisation there was no reviewable error on the delegate’s part.

Other Grounds of Review

39                  In ground 2 of their Grounds of Review the applicants contended that the first respondent’s decision involved an error of law, or was an improper exercise of power in that the first respondent had failed to take relevant considerations into account or had taken irrelevant considerations into account.  In a further ground (numbered 4 but actually the third ground) the applicants asserted that, by reason of the matters particularised in the earlier grounds, the first and second respondents had not observed procedures required by the law in connection with the making of the decision, as their functions were not carried out in a fair, just or non-technical way as required by s 109(1) and (3) of the Act.

40                  The matters raised in relation to these various additional grounds were all subsumed into the two issues of law i.e. whether the delegate had erred in relation to the matters of sufficiently clear description and authority, respectively.  The applicants’ written submissions focussed on those two issues, but at the same time drew in the particulars set out in the further grounds to which I have just referred.  In those circumstances, it is not necessary to deal with those grounds separately.  All of the arguments raised in the grounds have been dealt with above.

41                  I would add that matters which were put forward as relevant considerations which had not been taken into account or irrelevant considerations which had been taken into account appear to me to have been put forward with a view to arguing the merits of the decision under challenge.

42                  For example, in relation to the authorisation issue, counsel for the applicants (at p 12 of the transcript) referred to Lee J’s observations in Ward v Western Australia as “things that the Registrar could have taken into account” and that the Registrar should have found on the information before him that ten of the eleven deponents were not members of the claim group. 

Conclusion

43                  For the foregoing reasons the application will be dismissed with costs.

Associate:

Dated:              13 December 1999