FEDERAL COURT OF AUSTRALIA
State of Western Australia v Strickland [2000] FCA 652
NATIVE TITLE – Application for native title determination – Judicial review of Registrar’s decision not to accept a registered application for registration – Basis of Registrar’s decision was the existence of a registered prior claim on behalf of persons who included some of the members of the group on behalf of whom the present application was made – Relevant date for determining whether the other claim was registered before the making of the present claim – Whether an application lodged before the commencement of the amending Act on 30 September 1998 should be regarded as being made on date of actual lodgment, on 30 September 1998 or on date of any subsequent combination of claims – Judicial review of Registrar’s decision about acceptance for registration of a native title claim – Ambit of the review - Authorisation of claimants – Whether application set out grounds on which Registrar could be satisfied as to authorisation – Specification of claimed native title rights – Whether it was sufficient for applicants to claim “rights to the possession, occupation, use and enjoyment as against the whole world” subject to exceptions – Factual basis of claimed native title rights.
Native Title Act 1993 (Cth) ss61, 62, 63, 64, 190, 190A, 190B, 190C, 190D and 251B.
Native Title Amendment Act 1998 (Cth)
Bropho v Western Australia (2000) 169 ALR 365 referred to
State of Western Australia v Native Title Registrar (1999) FCA 1593 referred to
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 applied
Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253 followed
Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 distinguished
STATE OF WESTERN AUSTRALIA V MARJORIE MAY STRICKLAND AND ANNE JOYCE NUDDING AND THE NATIVE TITLE REGISTRAR
No. W 6039 of 1999
JUDGES: BEAUMONT, WILCOX & LEE JJ
DATE: 18 MAY 2000
PLACE: SYDNEY (HEARD IN PERTH)
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IN THE FEDERAL COURT OF AUSTRALIA |
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W 6039 OF 1999 |
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN: |
STATE OF WESTERN AUSTRALIA APPELLANT
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AND: |
MARJORIE MAY STRICKLAND AND ANNE JOYCE NUDDING FIRST RESPONDENTS
THE NATIVE TITLE REGISTRAR SECOND RESPONDENT
THE ATTORNEY-GENERAL OF THE COMMONWEALTH INTERVENOR
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant, State of Western Australia, pay the costs of the appeal of the first respondents, Margaret May Strickland and Anne Joyce Nudding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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W 6039 OF 1999 |
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN: |
APPELLANT
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AND: |
MARJORIE MAY STRICKLAND AND ANNE JOYCE NUDDING FIRST RESPONDENTS
THE NATIVE TITLE REGISTRAR SECOND RESPONDENT
THE ATTORNEY-GENERAL OF THE COMMONWEALTH INTERVENOR
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JUDGES: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION
1 This appeal raises for determination several significant questions in relation to the interpretation and operation of the provisions of the Native Title Act 1993 (Cth) (“the NTA”) dealing with the registration of a native title claim. The NTA confers upon registered applicants some important rights. For instance, the ability of a government instrumentality to do a statutory “valid future act” is in some cases constrained until the instrumentality has negotiated an agreement with the claimants or secured an arbitral determination that the act may be done.
2 The primary question in this appeal arises in a transitional context. Timing is important because substantial amendments to the registration provisions of the NTA were effected by the Native Title Amendment Act 1998 (Cth) (“the Amending Act”) on 30 September 1998. (The NTA as it stood before amendment by the Amending Act is referred to hereafter as the “Old Act”.)
3 The history of the litigation is as follows.
4 The first respondents, Marjorie May Strickland and Anne Joyce Nudding, applied to the Court, pursuant to s 190D of the NTA, for judicial review of a decision of the second respondent, the Native Title Registrar (“the Registrar”), not to accept for inclusion in the Register of Native Title Claims the first respondents’ application, on behalf of the Maduwongga people, for the determination of native title in respect of an area in the Central Goldfields Region of Western Australia. A Judge of the Court (French J) conducted the review, ordered that the Registrar’s decision be set aside and directed the Registrar to accept the claim. The State of Western Australia (“the State”) now appeals against these orders. Pursuant to the right of intervention conferred by s 84A(1) of the NTA, the Commonwealth Attorney-General intervened in the appeal.
5 In order to understand the issues arising in the appeal, some of which are complex, it will be necessary to describe the earlier history of the matter and the legislative scheme before explaining the Registrar’s reasons, the primary Judge’s decision and the arguments on the appeal.
THE HISTORY OF THE MATTER
6 The chronology of material events is as follows:
· On 19 April 1994, the first respondents lodged a native title determination application with the Registrar (“the first Maduwongga application”) under s 61(1) of the Old Act. The application was accepted by the Registrar for inclusion on the Register on 12 October 1995 pursuant to s 63(1) of the Old Act.
(Section 63(1) of the Old Act provided that, if the requirements of s 62 of the Old Act were complied with, the Registrar must accept an application, unless of the opinion (a) that the application was frivolous or vexatious; or (b) that prima facie the claim could not be made out. By s 62(1)(a) of the Old Act it was provided that an application must, inter alia, be accompanied by an affidavit sworn by the applicant that the applicant believed, inter alia, that native title had not been extinguished in relation to any part of the area and that none of the area was covered by an entry in the National Native Title Register.)
· The first Maduwongga application was referred to this Court pursuant to s 74 of the Old Act on 27 May 1998 and given Court number WG 63 of 1998.
(Section 74 of the Old Act provided that if an application was accepted under s 63, and if the Tribunal did not make a determination under s 70 (unopposed applications) or under s 71 or s 73 (where parties reach an agreement), the Registrar must lodge the application with the Court.)
· On 6 April 1995 the same applicants lodged with the Registrar the second Maduwongga application, covering other land. This application was accepted for registration on 18 September 1995. It was referred to the Court under s 74 on 30 June 1997 (WG 76 of 1997).
· A third Maduwongga application, again by the same applicants and covering yet other land, was lodged with the Registrar on 8 April 1998 was accepted for registration on the same day.
· As at 8 April 1998, a series of claims, known as the Wongatha claims, was registered. Five of these claims overlapped part of the third Maduwongga application.
· On 3 July 1998, Carr J ordered that the first Maduwongga application be consolidated with the second Maduwongga application, and thereafter bear the Court file number WG 76 of 1997 and 63 of 1998.
· As noted above, shortly thereafter, on 30 September 1998, the amendments effected by the Amending Act took effect. One of the material amendments to the Old Act by the Amending Act was a provision that an application being processed (as this was) is taken to have been made to the Court (see the Transitional Provisions in Part 3 of Schedule 5 of the Amending Act, described below.) At this time the third Maduwongga application was given Court number WG6237 of 1998.
· On 22 January 1999, a Registrar of the Court ordered that a number of applications be combined to form the combined Wongatha application. The combined application was given Court no. WG 6005 of 1998. Part of the combined Wongatha application overlapped part of the third Maduwongga application.
· On 17 February 1999, R D Nicholson J revoked the consolidation order made by Carr J, and ordered that the three Maduwongga applications be combined (and to that extent amended) under the number WG 76 of 1997.
(It may be noted here, as French J observed in Bropho v Western Australia (2000) 169 ALR 365 at 375, that s 64 of the NTA treats combination of applications as a species of amendment of one of them. By s 64(1) it is provided that an amendment of an application must not result in the inclusion of any area of land that was not covered by the original application. However, s 64(2) provides that if (a) the application is a claimant application and (b) the amendment combines the application with another claimant application or applications, s 64(1) does not prevent the inclusion of any area of land covered by the other application or applications.)
· The Wongatha application was accepted by the Registrar for inclusion on the Register on 26 February 1999.
· On 8 June 1999, the Registrar’s delegate decided, pursuant s 190A of the NTA, that the combined Maduwongga application WG 76 of 1997 should not be accepted for inclusion on the Register. The sole reason for that decision was that, in his opinion, it failed the conditions in s 190C(3) of the NTA. Although strictly unnecessary for him to do so, the delegate went on to consider and reject several other grounds raised in opposition to registration.
· The applicants sought judicial review of the Registrar’s decision.
· On 4 November 1999, French J reviewed the Registrar’s decision and made the orders now under appeal.
· On 16 November 1999, Carr J made orders setting aside the Registrar’s decision to register the combined Wongatha claim (see State of Western Australia v Native Title Registrar (1999) FCA 1593).
THE LEGISLATIVE SCHEME
7 Part 7 of the NTA now deals with the Register of Native Title Claims, relevantly for present purposes as follows:
q The Registrar must, as soon as practicable, include in the Register details of any claims accepted for registration by the Registrar under s 190A: see s 190(1)(a).
q The Registrar must accept a claim for registration if it satisfies all of the conditions in (a) s 190B (which deals mainly with the merits of the claim); and (b) s 190C (which deals with procedural and other matters). In any other case, the Registrar must not accept the claim for registration: see s 190A(6).
q The Registrar must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by ss 61 and 62: see s 190C(2).
q The Registrar must be satisfied that 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: see s 190C(4)(b). The Registrar cannot be so satisfied unless the application briefly sets out the grounds on which the Registrar should consider the requirement has been met: see s190C(5).
(The meaning of “authorised” in this context is important for our purposes. It is dealt with by s 251B:
“251BAuthorising the making of applications
For the purposes of this Act, all the persons in a native title claim group … authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:
(a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group …, must be complied with in relation to authorising things of that kind – the persons in the native title claim group … authorise the person or persons to make the application and to deal with the matters in accordance with that process; or
(b) where there is no such process – the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group …, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.”)
q Registration must be declined unless the Registrar is satisfied that there are no previous overlapping claim groups: see s 190C(3).
8 Section 190C(3) is central to a major issue in the appeal. It provides:
“No previous overlapping claim groups
(3) The Registrar must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application, if:
(a) the previous application covered the whole or part of the area covered by the current application; and
(b) an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made; and
(c) the entry was made, or not removed, as a result of consideration of the previous application under section 190A.”
9 The form of subs (3) is awkward. The more common drafting technique is, first, to specify any conditions that attract a statutory requirement, and then specify the requirement itself. However, it is tolerably clear that the requirement expressed in the opening clause of the subsection arises only if the conditions specified in paras (a), (b) and (c) are satisfied.
10 This understanding of s 190C(3) is supported by the Explanatory Memorandum circulated in respect of the Native Title Amendment Bill 1997. The Explanatory Memorandum stated that “the purpose of the (new) registration test is to ensure that only claims which have merit are registered on the Register of Native Title Claims” (Ch 29.2). The Memorandum went on to say:
“No previous overlapping claim groups
29.25 The Registrar must be satisfied that no member of the claim group for the application or amended application is a member of the claim group for a registered claim which was made before the claim under consideration, which is overlapped by the claim under consideration and which itself has passed the registration test (subsection 190C(3)).”
11 The issue in this appeal, in relation to s190C(3), is whether paras (b) and (c) are satisfied. The issue is important because, as will appear, the Registrar was not satisfied that no person included in the consolidated Maduwongga application is a member of the Wongatha claimant group.
REGISTRAR’S DECISION
12 As we have seen, the Registrar’s delegate decided that the combined three Maduwongga applications WC 94/3, WC 95/11 and WC 98/20 not be accepted for registration because he was not satisfied that compliance with the conditions specified in s 190C(3) had been demonstrated. At the same time, the delegate considered, but rejected, contentions made on behalf of the State that the application also failed to comply with several other provisions of the NTA.
13 The delegate noted that the application was a combination of three applications, each of which was given to the Registrar under s 61 of the Old Act “and taken to have been made to the Federal Court in accordance with [Transitional Provisions] … item 6, case 3”. (By Item 6, Case 3 of the Transitional Provisions where, at the commencement of the amendments to the NTA, an application is not finalised, it “is taken to have been made to the … Court”.)
14 In considering whether s 190C(3) had been complied with, the Registrar’s delegate said:
“The combined Wongatha application is the only application listed above that has been considered under section 190A before the Maduwongga combined application, and so only it has been ‘not removed’ from the Register of Native Title Claims in terms of s.190C(3)(c). It is therefore only in relation to the Wongatha claim that there may need to be any enquiry required by s.190(3)(b).
It is not contested by the Maduwongga applicants that there are members common to each of the Maduwongga and Wongatha claims. The applicants representative, in a letter to the Tribunal on 2 March 1999 stated
‘As indicated in the genealogy at figure 3.4 of the report, the mother of the applicants has a Waljen identification and they may therefore be entitled to claim membership of the Native Title Claim Group for the recently combined Native Title Claim of the Wongatha Claim Group which geographically overlaps the current application in the vicinity of its northern boundary.
However, none of the applications which were combined to form the Wongatha claim was on the register of Native Title Claims when the current application was made. Therefore, the preconditions for the Registrar needing to [be] satisfied that no person included in the Native Title Claim Group for the current application was a member of a Native Title Claim Group for the Wongatha claim do not exist.’
Therefore the condition has to be considered further – there are persons in common, the area of the applications overlap and the previous application (Wongatha) was found to comply with s.190A.
What remains to be considered was whether an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made (section 190C(3)(b)).
…. To determine what the provision requires it is necessary to look at the meaning of the phrase ‘when the current application (Maduwongga) was made’.
It is necessary to look at each of the pre-combination applications to ascertain the relevant dates. It is also necessary to cross match these dates with their associated Wongatha pre-combination applications.
It is necessary to then ask if any of the separate pre-combination Wongatha applications, which overlapped any of the pre-combination Maduwongga applications, were on the Register when any of those pre-combination Maduwongga applications were made.
There are no pre-combination Wongatha claims that were on the Register before WC94/3 Maduwongga or WC95/11 Maduwongga People #2.
Maduwongga people #3 was registered on 8 April 1998. The following pre-combination Wongatha claims overlap this claim and were on the Register prior to 8 April 1998:
Ngurludharra/Waljen WC95/20 Registered 14 July 1995
Bibila Lungutjarra WC96/12 Registered 2 February 1996
Milangka-Purungu (Wongatha) WC96/42 Registered 19 April 1996
Bibila Lungutjarra #3 WC96/76 Registered 26 June 1996
United North East WC97/35 Registered 26 May 1997
There are therefore five applications now combined to form the Wongatha application which overlap an application, now combined to form the Maduwongga application, which were made and registered prior to that application being made.
The Maduwongga combined application therefore does not satisfy the conditions in section 190C(3).” (Emphasis added)
DECISION OF THE PRIMARY JUDGE
15 The judgment of French J on the judicial review application is now reported as Strickland (on behalf of the Maduwongga People) v Native Title Registrar (1999) 168 ALR 242. Judicial review was sought before his Honour upon several grounds, including a contention that the Registrar had not construed s 190C(3) correctly. The State was joined as a respondent to the proceeding. The State contended that the Registrar had incorrectly construed s 190C(3) in one particular respect, in an argument which it maintained before French J and before us. The State also contended, and still contends, that the Registrar should, in any event, have declined registration on other grounds, which relate to the sufficiency of the information provided in the application and its supporting affidavit.
Operation of the “overlap” conditions (s 190C(3))
16 The primary Judge held that the Registrar had erred in finding that the Maduwongga combined application did not satisfy the conditions in s 190C(3).
17 His Honour said that to determine whether this condition is satisfied, the Registrar can proceed first to identify any previous application covering the whole or part of the area covered by the current application. The Registrar would have to determine whether there was an entry relating to the claim in the previous application which was on the Register when the current application was made. The Registrar would also have to ascertain whether that previous application had been considered under s 190A and whether, as a result of that consideration, the relevant entry was either made, or, if pre-existing, was not removed pursuant to that consideration.
18 The learned primary Judge noted the history of the combined Wongatha application, including its acceptance for registration on 26 February 1999 pursuant to s 190A. For the purposes of s 190C(3)(b), this was the date from which it could be said that there was on the Register an “entry made or not removed as a result of consideration of the previous application under s 190A”. The question then was whether the combined Maduwongga application was “made” before or after that date – if before, then s 190C(3) could not prevent its registration: for that provision to operate, “there must be a s 190A tested entry in place on the register in respect of the ‘previous’ application at the time when the ‘current’ application is made” (at 252).
19 French J said (at 252):
“The Registrar’s delegate approached this question by asking whether ‘any of the separate pre-combination Wongatha applications which overlapped any of the pre-combination Maduwongga applications were on the Register when any of those pre-combination Maduwongga applications were made’. On any view, this was an erroneous test because it omitted to address the requirement that a relevant previous application must be on the Register ‘as a result of consideration of the previous application under s 190A’. In this case, none of the previous applications relied upon by the delegate was the subject of consideration under s 190A prior to any of the pre-combination Maduwongga applications being made. So, even if the condition under s 190C(3) is applied to the various pre-combination applications as it was in this case, the condition must be satisfied. That is to say, the delegate erred in finding that the Maduwongga combined application did not satisfy the condition in s 190C(3).”
20 His Honour went on to say (at 252):
“The conclusion thus reached assumes the correctness of the delegate’s approach in treating pre-combination applications as the relevant classes of current and previous applications for the purposes of s 190C(3). There is an underlying constructional question, however, which is not easy of resolution in relation to the combined applications namely, – when was the ‘current application’, ie that being considered under s 190A, ‘made’ for the purposes of s 190C(3)(b)?”
21 Noting that the provisions of s 13 and ss 61(1) and 61(5) of the NTA describe the elements involved in the process of making an application to the Court for a determination, French J said (at 253):
“The above elements, in my opinion, together describe what is involved in making an application for the purpose of s 61. The only action, temporally defined, is the act of filing in the Federal Court. That is the time when a new application is ‘made’ under the new Act. That is also the time when such an application is ‘made’ for the purposes of s 190C(3)(b). In the case of an application given to the Registrar under the old Act, the transitional provisions apply. The relevant provisions are found in the table comprising Item 6 of Part 3 of Schedule 5 to the Amendment Act. In any cases of applications which had proceeded under the old Act up to and beyond the point where notification had been completed, the application was ‘taken to have been made to Federal Court’. Where the application had been referred to the Federal Court under s 74 of the old Act, then it was ‘taken to have been made to the Federal Court’ and the Federal Court was taken to have made an order under s 86C(1) of the new Act that mediation cease: Schedule 5 Part 3 Item 8. The term ‘application is taken to have been made to the Federal Court’ is defined in Item 36 of Schedule 5 thus:
‘(a) the application is to be treated as if it were made to the Federal Court under the relevant provisions of the new Act; and
(b) the Native Title Registrar must give the application to the Federal Court, but section 63 of the new Act does not apply in relation to the application.’”
22 Since the process of consideration under s 190A only came into existence on 30 September 1998, that was “[t]he earliest date upon which an application could be made or be taken to have been made to the … Court” (at 253). His Honour said (at 253):
“The pre-combination Maduwongga applications are all taken to have been made on 30 September 1998 for this purpose. The combined application is not a new application. The new Act treats combination as a species of amendment: s 64(2). It follows that in the case of a combination of old Act applications, the combined application, like its components, is taken to have been made on 30 September 1998.”
Identification of the subject area
23 In the combined Maduwongga application, the external boundaries of the claim were shown on a map. However, the application identified the internal boundaries by excluding certain “extinguishing acts within the [NTA]…”. The full definition of the internal boundaries is stated in the judgment at 256 and need not be repeated here.
24 Section 190B(2) stipulates that the Registrar must be satisfied that the information and map contained in the application, as required by s 62(2)(a) and (b) of the NTA, 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.
25 Section 62(1)(b) of the NTA provides that a claimant application must contain the details specified in s 62(2). Section 62(2) says the required details include:
(a) information, whether by physical description or otherwise, that enables identification of the boundaries of (i) the area covered by the application; and (ii) any areas within those boundaries that are not covered by the application; and;
(b) a map showing the boundaries of the area mentioned in (a)(i).
26 Following R D Nicholson J in Daniels v Western Australia [1999] FCA 686, French J rejected the State’s contention that s 190B(2) required a description of the claimed land in such a way that no legal judgment is needed to be made by a reader in ascertaining whether an area is, or is not, included in the claim. His Honour concluded that the mode of description adopted here was “consistent with the general rubric of ‘reasonable certainty’ used in s 190B(2)” (at 257).
Authorisation of the claimants
27 His Honour noted that there was a statement in the application that the claimants “are entitled to make this application as people authorised by the native title claim group to make the … application”; and that there were statements in the claimants’ affidavit accompanying the application that –
“(d) … they are authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and
(e) they are so authorised by their descendants in accordance with a traditional custom acknowledged by the members of the native title claim group of younger generations respecting elder generations and elder generations having authority to make decisions and deal with matters relating to traditional interests in land and waters on their own behalf and on behalf of younger generations.”
28 French J rejected a submission by the State that the requirements of s 190C(4)(b), read with s 251B, had not been satisfied. His Honour held that neither s 190C(4) nor s 190C(5) confined the Registrar to the statements made in the affidavit or the information provided in the application, noting in this connection (at 260) that the Registrar had referred to the anthropological material relied on by the claimants.
Adequacy of the description of the native title rights and interests claimed
29 The Judge observed that the claimants’ description of the rights and interests in their application was generally expressed, and similar in concept to the determination made in Mabo v Queensland (No 2) (1992) 175 CLR 1; that is, a claim to rights to possession, occupation, use and enjoyment as against the whole world, subject to specified exceptions, as set out in the judgment at 260.
30 French J rejected the State’s contention that this was no more than a generalised statement, and not a description of the particular rights and interests contemplated by s 190B(4). His Honour said (at 261):
“Again, the sufficiency of the native title rights and interests is a matter of which the Registrar must be satisfied. There is scope for evaluative judgment in an expeditious administrative process carried out by people with relevant specialist experience. It is not for the Court, in reviewing the Registrar’s decision, to substitute its own view of the sufficiency of the native title rights and interests for those of the Registrar unless it can be shown that the Registrar’s state of satisfaction is based upon some error of principle.”
THE STATE’S GROUNDS OF APPEAL
31 The grounds of the State’s appeal, in essence, are as follows:
¨ The primary Judge erred in law in holding that, for the purposes of s 190C(3)(b), the date upon which a previous Old Act application is made is always deemed to be 30 September 1998. Instead, his Honour should have held that, for these purposes, the present claimants’ combined (Maduwongga) application was not “made” until 17 February 1999, the date on which R D Nicholson J ordered their combination. The effect of that submission would be that the Registrar’s delegate also erred in his approach to the construction of s 190C(3)(b); he was wrong to conclude its provisions were not satisfied; the delegate should have concluded that the previous claim was not on the Register at the time the current application was made. The State says this conclusion should have been reached on the basis that:
(a) the term “current application” when used in s 190C(3) refers, in the present connection, to the application before the Registrar for consideration pursuant to s 190A; that is, relevantly, the (amended and) combined Maduwongga application the subject of the order of R D Nicholson J dated 17 February 1999;
(b) the relevant “previous application” was the Wongatha application, which was (amended and) combined by order of the Court dated 22 January 1999 but which was not accepted for registration until 26 February 1999, after the order of R D Nicholson J; and, consequently, was not on the Register when the relevant current application was made.
¨ Further his Honour should, in any event, have found that the statements by the claimants in their application and affidavit were not sufficient to satisfy the following statutory requirements: (1) with respect to the “authorisation” requirement, the claimants did not comply with s 190C(4) and (5); (2) in purporting to describe the native title rights and interests claimed, the claimants did not comply with s 62(2)(d) and s 190B(4); and (3) in purportedly describing the factual basis on which they claimed title, the claimants did not comply with s 62(2)(e) and s 190B(5).
THE ATTORNEY-GENERAL’S INTERVENTION
32 In summary, the Attorney-General submits–
· The phrase in s 190C(3)(b) “when the current application was made” refers to the date on which the application was actually made. The phrase does not involve any concept of a notional date of application. In the case of claims made before 30 September 1998, the relevant date is that on which the application was actually made to the Registrar, and not, as the primary Judge held, 30 September 1998; and in the case of claims that have been combined, the relevant date is the date on which the relevant individual claim was made, not the date of the combination order.
· The consideration under s 190A of the previous application, which is referred to in s 190C(3)(c), may occur before or after the current application was made.
33 The Attorney submits that s 190C(3) prevents registration of an overlapping claim that is (1) a second claim (2) by one or more of the same people as a first claim; and (3) over part or all of the same land as the first claim. The policy underlying the subsection is to give priority to the claim which is registered first in time. Thus, only a prior registered claim will keep a second claim off the Register. The idea is that s190C(3) will only give priority where the first claim is “credible” (or in the language of the Explanatory Memorandum has “merit”). Only a claim which has passed the new registration test will keep a second claim off the Register.
34 The Attorney further submits that the State’s construction of the phrase - “when the current application was made” - in s 190C(3)(c) should be rejected, since it seeks to equate the making of an application with its amendment, yet making and amendment are conceptually different things.
CONCLUSIONS ON THE APPEAL
Operation of the “overlap” condition in s 190C(3)
35 Two questions arise in relation to the correct interpretation of s 190C(3):
(1) What does the phrase “when the current application was made” mean in s 190C(3)(b)?; and
(2) When does the “consideration of the previous application under s 190A” referred to in s 190C(3)(c) need to take place?
36 Schedule 5 to the NTA contains several relevant transitional provisions.
37 Part 3 of Sch 5 deals with the application of the amendments to the Old Act relating to s 61 applications in the context of proceedings relating to determinations. By the terms of the Table in Item 6, where an application (as here) proceeded under the Old Act beyond notification, the consequence of commencement of the NTA is that the application “is taken to have been made to the Federal Court”. By Item 36 of Sch 5, as French J noted, this means that the application is to be treated as if it were made to the Court under the relevant provisions of the new Act.
38 Part 4 of Sch 5 deals with the application of the amendments to the Old Act relating to s 61 applications, but in the present context, viz, the registration of claims. Under the heading “Order of consideration of claims affected by the same section 29 notice”, Item 11(7) states:
“If:
(a) a notice given under section 29 of the new Act…; and
(b) as a result of the giving of the notice, the Registrar is required by (nominated) subitems (of Item 11) to consider 2 or more claims under section 190A…;
then the Registrar must consider the claims under that section in the order in which their details were entered on the Register of Native Title Claims.”
39 The Explanatory Memorandum provides an explanation of some aspects of the provisions of Part 4 of Sch 5. Under the heading “Applying the new registration test to claims”, the Memorandum states, inter alia:
“What happens to overlapping claims?
35.38 In some areas, there may be overlapping registered claims made by some or all the members of the same claim group under the old Act. The transitional provisions deal with overlapping claims by providing that where there are two or more claims affected by the same section 29 notice that were registered under the old Act, the Registrar is obliged to apply the registration test to them under these transitional provisions in the order in which the claims were registered under the old Act [Schedule 5, subitem 11(7)]. The first claim which satisfies the new registration test (including subsection 190C(3)) will be registered. Claims considered after that claim is registered will not be able to be registered if they do not satisfy the condition in subsection 190C(3)). That condition prevents the registration of a claim in a later application.
· if there is already a claim on the register covering some or all of the same area when the later application is made; and
· that registered claim was made by some or all of the people in the claim group for the later application.
The Bill generally discourages overlapping claims by members of the same native title claim group, and encourages consolidation of such multiple claims into one application.”
40 None of the transitional provisions addresses the present problem. No direct guidance is given, explicitly at least, on the question that arises here, in the context of multiple applications and their amendment by combination; some of which events occurred before the statutory amendments, and others thereafter. In the absence of a relevant express transitional provision, the task of the Court is to draw inferences, in the light of the interpretative criteria, as to the transitional arrangements Parliament intended.
41 It is convenient to consider first the meaning, in the present circumstances, of the phrase “when the current application was made” in s 190C(3)(b). Three possible approaches appear to be available:
(1) the date (8 April 1998) when the third Maduwongga application (the individual overlapping claim) was originally made to the Registrar (i.e. the Attorney General’s “actual” or “distributive” contention); or
(2) the date of commencement of the amendments to the NTA (i.e. 30 September 1998) (as held by French J); or
(3) the date when the third Maduwongga application was amended and consolidated with the other applications (i.e. 17 February 1999) (i.e. the State’s contention).
42 As the Attorney General submitted, the phrase “when the current application was made” is not a term of art. It has no special or technical meaning. Its general meaning should be applied, but in its proper context. As McHugh, Gummow, Kirby and Hayne JJ said (in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (at 381)):
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.”
43 Their Honours went on to note the observation of Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 (at 397) that –
“… the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.”
44 Applying these principles, and whilst acknowledging some logical support for the conclusion reached by French J, (i.e. (2) above), we think, with respect, the preferable construction is that contended for by the Attorney (i.e. (1) above).
45 In our opinion there are significant indications in the legislative scheme, consisting of the Old Act and the NTA itself, that, in a situation of the kind that has now arisen, the relevant language of s 190C(3)(b) was intended to refer to the date when the initial application was made to the Registrar. Those indications are as follows:
· In dealing with the recognition and protection of native title, Division 1 of Part 2 of the Old Act provided that an application may be made to the Registrar under Part 3 for a determination of native title (s 13(1)(a) of the Old Act).
· Under Part 3 of the Old Act, an application for a native title determination may be “made” to the Registrar by a person or persons claiming to hold the native title, either alone or with others (s 61(1)).
· If the Registrar accepted the application under s 63(1) of the Old Act and the Tribunal did not make a determination under ss 70, 71 or 73 of the Old Act, the Registrar was bound to lodge the application with the Court for decision (s 74 of the Old Act). The Court then had jurisdiction to hear and return such an application (s 81 of the Old Act).
46 In our opinion, as was submitted on behalf of the Attorney General, it may be readily inferred from these provisions of the Old Act that the term “application”, when used in s 190C(3)(b), would pick up, as a general descriptor, a claim made under the Old Act for a determination of native title commenced by application to the Registrar which was lodged with the Court for determination, but had not been determined by the Court on or before 30 September 1998. Moreover, in our view, there is no reason why such an application should not continue, after 30 September 1998, to be treated as an application made on the date it was actually made to the Registrar. There is nothing, in our view, explicit in any of the legislation to contradict this conclusion. Nor is there any practical reason why it should be inferred that any such application is to be treated as made at any time other than the date upon which it was lodged with the Registrar.
47 Such indications as may be found in the transitional provisions either support this conclusion, or are at least equivocal on the point:
48 Case 3, Item 6, Sch 5 provides, as French J observed, that where notification has been given by the Registrar, the period in s 66 of the Old Act is completed and (as here), the application is not finalised, then:
“[The] [a]pplication is taken to have been made to the Federal Court. Any notification is taken to be for that application and the same people are the parties.”
49 But there is no deeming provision in Part 3 with respect to registration or with respect to the date upon which, for registration purposes, an application was deemed to be made. In particular, it is not there provided that this date should be taken to be 30 September 1998. This is not surprising. As noted, this provision is located in Part 3, which deals with “proceedings relating to determinations”, rather than registration, which is dealt with in Part 4 (Item 11).
50 Item 11 deals with a wide range of situations in which registration of claims has a transitional aspect. For instance, a distinction is drawn in Item 11 for some purposes (not here material) between applications made before, or after, 27 June 1996. This Item does not fasten upon the date 30 September 1998 as being significant for the purposes of application of the registration test. It is true that Item 11(1) states that “[t]his item sets out the consequences of the commencement of this Act” in relation to a pre-commencement registered claim. But there is nothing in Item 11 which deems such a claim to have been made on 30 September 1998. On the contrary, Item 11 appears to proceed upon the assumption that the actual date of the making of an application, rather than a notional one, is the relevant criterion. Take for instance Item 11(3), which provides that if (a) the application was made before 27 June 1996; and (b) a notice is given under s 29; and (c) no such notice has previously been given, the Registrar must consider the claim under s 190A on an expedited basis. In that context, it is not, we think, open to inference that Parliament intended the extraordinary result that an application should be subjected to the treatment prescribed by Item 11(3) because it was made before 27 June 1996, but that s 190C(3)(b) should then be applied as if the application had notionally been made at a later date, viz, 30 September 1998.
51 Item 11(7) prescribes the order of consideration of claims affected by the same s 29 notice (i.e. overlapping claims), that is to say, the order in which the claims were registered. The object of this provision, as the Explanatory Memorandum states (Ch 35.38), is that the first claim which satisfied the new registration test (including s 190C(3)) will be registered; and claims considered after that claim is registered will not be able to be registered if they do not satisfy the condition in s 190C(3). It is true that the principle of retesting claims in the order in which their details were entered on the Register has not been made expressly applicable to other applications, or to amended or combined applications. But it does provide an appropriate analogy to be applied in order that a fair application of s 190C(3) may be achieved in the case of old claims. By comparison, interpretative approach (2), above, could result in arbitrary outcomes which, in the process of statutory interpretation, ought to be avoided where possible (see e.g. Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297). For example, if interpretative approach (2) were applied generally, it would mean that no actual pre-30 September 1998 applications (whether single applications or amended applications which are combined with other pre-30 September 1998 applications) would fail the s 190C(3) limb of the registration test: all actual pre-30 September 1998 applications would be deemed to have been made on 30 September 1998, so that there could be no “previous application”.
52 On the other hand, interpretative approach (1), above, would require the application of the test to pre-30 September 1998 claims in accordance with the process contemplated by the transitional provisions. In our view, this “actual” (rather than “notional”) distributive approach would give effect to the apparent purpose of s190C(3).
53 The second question is: when does the phrase “consideration of the previous application under s 190A” when used in s 190C(3)(c) need to take place?
54 It will be recalled that s 190C(3)(c) stipulates the ingredient that –
“(c) the entry was made, or not removed, as a result of consideration of the previous application under section 190A.”
55 It appears that this provision could have two possible meanings:
(1) that the entry in relation to the earlier application is still on the Register and has been tested under s 190A at the time that the Registrar applied the registration test to the current application; or
(2) that the entry in relation to the earlier application is still on the Register and was tested under s 190A before the new application was made.
56 We agree with the Attorney General’s submission that the first suggested interpretation is preferable, as a matter of language and of convenience. As a matter of language, the phrase used in s 190C(3)(b) – “when the current application was made” – does not appear in s 190C(3)(c). As matter of the practical operation of the provision, if it were the case that the previous application had to be considered under s 190A before the current application was made, then no application actually made before 30 September 1998 would ever fail this aspect of the test, since no application was, or could have been, tested before that date. This would mean that the enactment of Item 11 as a transitional provision was unnecessary and futile in respect of the s 190C(3) requirement.
57 At the time the Registrar’s delegate considered the matter and made his decision, 8 June 1999, the following facts were established on the material before him:
· The combined Maduwongga application was made on 19 April 1994 (the first), 6 April 1995 (the second) and 8 April 1998 (the third).
· At the time the third Maduwongga claim was made, five previous Wongatha applications entered on the Register included part of the area covered by that application (i.e. the conditions in s 190C(3)(a) and (b) were met).
· The entry of the Wongatha applications had been made, or had not been removed, as a result of the consideration under s 190A that took place on 26 February 1999 (i.e. the condition in s 190C(3)(c) was met).
58 Therefore, if the Registrar was not satisfied that no person included in the native title claim group for the third Maduwongga application was a member of the native title claim group for the five Wongatha applications, it would follow that on 8 June 1999 the Registrar could not have been satisfied, as required by s 190A(6)(b), that the claim made in the Maduwongga application met all the conditions in s 190C(3).
59 The present appeal is an appeal in the strict sense, and not by way of re-hearing, so the Full Court must consider the situation as it was at the date of the hearing at first instance, and not at the date of hearing of the appeal (see, e.g. Duralla Pty Ltd v Plant (1984) 2 FCR 342). In this case, there were no relevant legislative changes between the date of the judgment at first instance and the present time. However, during that period, Carr J made his order.
60 At the date judgment was given by French J (4 November 1999), a challenge to the decision of the Registrar made on 26 February 1999, accepting the Wongatha claim for registration, had been heard by Carr J and judgment reserved. No doubt if French J had construed s 190C of the NTA in the manner we have determined to be its proper construction, his Honour would have deferred judgment in the review proceeding until Carr J decided whether the Wongatha claim had been duly entered on the Register. On the approach French J took to the issue of construction, that course was not necessary. For the same reason, his Honour found it unnecessary to deal with the ground of review which challenged the finding of the Registrar’s delegate that several members of the native title claim group for the third Maduwongga application were members of the native title claim group for the five previous Wongatha applications.
61 Having regard to our view that French J erred in regarding 30 September 1998 as the critical date, ordinarily it would be necessary to set aside his Honour’s orders and return the matter to him to continue the review of the Registrar’s decision. However, in the circumstances of this case, such an order would be inappropriate. Armed with knowledge of the removal of the Wongatha claim from the Register, his Honour would be bound to conclude that the only order open to be made, by way of review of the Registrar’s decision, would be that the decision be set aside. That is the order his Honour made, although for a different reason.
62 The order of Carr J was made under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). Accordingly, in the absence of any specification to the contrary, it is to be taken as having effect from the date of the order, not from the date of the making of the decision that is set aside: see Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253 per Sheppard and Wilcox JJ (with whom Fox J agreed) at 255-258. However, the right of review provided by s 190D of the NTA, and invoked in this case before French J, is not confined in the same way as an application for review under the ADJR Act. Events subsequent to the decision under review are relevant to, and required to be considered, in s190D review proceeding
63 An application under s 190D has some similarity to an application for review of a decision made in a matter by an officer of the Court under power delegated by the Court. Under s 190A of the NTA, the Registrar is given power by the NTA to make decisions in respect of “registration” of an application made to the Court. The Registrar does not exercise a power delegated by the Court in respect of the Court’s exercise of jurisdiction in a matter, but the Registrar does exercise administrative power in respect of a matter in which the Court has, and is then exercising, jurisdiction.
64 Under s 190D(2) an applicant may apply to the Court for review of the Registrar’s decision not to accept the applicant’s claim for registration and, under s 190D(3), the Court is given jurisdiction to hear and determine the application. The legislation does not specify the nature or extent of the review, or impose any limitation upon the material that may be taken into account. Jurisdiction is conferred by ss 190D(2) and (3) in the broadest of terms.
65 It is important to note that a s190D review is not restricted to consideration and determination of a question of law. Section 190D(4) makes it plain that the review extends to determination of issues of fact. The NTA does not proceed on the premise that questions of fact in the relevant controversy have been settled by the administrative determination, and the only matter in respect of which jurisdiction is conferred is any controversy on questions of law. The review proceeding enlivens the jurisdiction of the Court in respect of the whole of the matter: see TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 per Gummow J at 178, 180-181.
66 It seems to us it was Parliament’s intention that the right of review created in s 190D(2) would place before the Court the controversy constituted by the issues of fact and law raised between the parties. Upon a ground of review being established, appropriate orders may be made to do justice between the parties. Such orders are made in the Court’s discretion in the exercise of the original jurisdiction of the Court (see Re Tyndall (1977) 30 FLR 6 per Deane J at 9-10; The Victorian Stevedoring and General Contracting Company Proprietary Limited v Dignan (1931) 46 CLR 73 per Dixon J at 109; Banbury v Bank of Montreal [1918] AC 626 per Lord Atkinson at 676; Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma Pty Limited (1959) 101 CLR 652 per Dixon CJ at 657).
67 The review may require re-determination of factual issues according to the material then available; it is not restricted to the material before the Registrar (see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 per Mason J at 45; Committee of Direction of Fruit Marketing v Australian Postal Commission (1979) 25 ALR 221 per Northrop J at 233; McCormack v FCT (1977) 33 FLR 53 per Bowen CJ and Brennan J at 55-56; per Deane J at 61-62).
68 Accordingly, at the time of review the Court may take into account events that have occurred since the decision under review was made. Once that was done in this case, and the order of Carr J taken into account, the orders on review must be those already made by French J.
69 It follows that the first ground of appeal fails. Although we are persuaded that the arguments of the Attorney-General, as intervenor, on the issue of construction should be accepted, in the particular circumstance of this case that provides no cause to disturb the orders already made by his Honour.
Authorisation of the claimants
70 It will be recalled that by s 190C(4)(b) the Registrar must be satisfied that the applicant or applicants is or are authorised by the native title claim group to make the application and that, by s 190C(5)(b), the Registrar cannot be so satisfied “unless the application … briefly sets out the grounds on which the Registrar should consider that it has been met”. By s 251B the concept of “authorise” is, for present purposes, defined so as to distinguish between cases where on the one hand there is a process of decision-making, and on the other, those cases where there is no such process: see para 7 above.
71 The relevant statements in the application and supporting affidavit are described at para 27 above.
72 In addressing the requirements of s 190C(4)(b), the delegate said of those statements “set out the process of decision-making that, under traditional laws and customs of the group must be complied with in relation to decisions of this kind, as required by s 251B”.
73 Turning next to the provisions of s 190C(5)(b), the delegate said:
“Paragraph (e) of the affidavit provides a brief statement as to the basis for authorisation by the biological descendants of the applicants. These persons represent the totality of the native title claim group in the current application. The two applicants, Marjory Strickland and Joyce Nudding are the oldest living descendants to the identified apical ancestors within the native title claim group (refer to the genealogy at Fig. 3.4 of the report by McDonald Hales and Associates).
The applicants have based their authorisation on the respect shown to elder generations under traditional custom to use their authority to make decisions on behalf of the group.
The requirements of this section have been met.”
74 It should be noticed here that, at the commencement of his reasons, the delegate stated:
“Information to be taken into account
In applying the requirements of the registration test I have considered and reviewed all of the information and documents from the following files, databases and other sources:
· The Working files, registration test Files, Federal Court Applications and Amendment Files for WC94/3, WC95/11, WC98/20;
· Other tenure information acquired by the Tribunal in relation to the area covered by the application;
· Working files and related materials for native title applications that overlap the area of the Maduwongga application;
· The National Native Title Geospatial Database;
· Transcripts, Affidavits, State Government Submissions, grantee Party Submissions, Applicant Statements of Contention, information supplied by the Aboriginal Affairs Department and Determinations from Future Act files where the future act matters related to any part of the area covered by this application;
· The Native Title Register;
· Submissions from the Western Australian Government in relation to the three applications;
· Submissions from the Commonwealth Government in relation to the three applications.
· Submissions from the applicants in relation to the application.”
75 Counsel for the State contend that the affidavit submitted in support of the application was insufficient to establish the authorisation of the applicants to make the native title claim; it does not reveal whether any process of consultation has taken place and, if so, whether that process complied with the process of decision-making customarily used by the group of people on behalf of whom the claim was made. Reference is made to Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637, a case in which Wilcox J made orders summarily dismissing two applications for determination of native title, the reason being the applicant’s failure to demonstrate authorisation to make the claims.
76 There is no doubt, as the State of Western Australia submits in this case and Moran illustrates, that it is necessary for an applicant for determination of native title to comply with the requirements of ss61 and 62 of the NTA. In this context, note particularly s61(1) and (4) and s62(1)(a)(iv) and (v). Whether a particular application does comply with those requirements is a matter for the Registrar to determine, subject to possible judicial review.
77 The submission put to us in relation to authorisation appears to be identical to that put to French J, and rejected by him. His Honour said (at 259-260):
“The affidavit attached to the application meets the requirements of s190C(5)(a) which requires no more than a statement that the requirement of authorisation referred to in s190C(4)(b) has been met. It is also required briefly to set out the grounds on which the registrar should consider that it has been met. The insertion of the word ‘briefly’ at the beginning of s190C(5)(b) suggests that the legislature was not concerned to require any detailed explanation of the process by which authorisation is obtained. The sufficiency of the grounds upon which the registrar should consider that the requirement has been met is primarily a matter for the registrar. The specified grounds in this case constitute an assertion that as elders the two applicants have authority under traditional law and custom acknowledged by the members of the native title claim group to make decisions of this kind. The brevity of the assertion may be criticised and it might be thought consistent with the two applicants merely arrogating authority to themselves without any or any meaningful consultation with the members of the native title claim group. On the other hand, neither the registrar nor this court is in a position to reject the contention that all relevant authority is vested in the elders of the relevant native title claim group and that the applicants fall into that category. It is to be noted that s190C(4) does not confine the registrar to the statements made in the affidavit or the information provided in the application in reaching the relevant state of satisfaction. Nor is the registrar so confined by ss190C(5). In this case, the delegate, in his reasons for decision, said in connection with this ground:
‘Paragraph (e) of the affidavit provides a brief statement as to the basis for authorisation by the biological descendants of the applicants. These persons represent the totality of the native title claim group in the current application. The two applicants, Marjorie Strickland and Joyce Nudding are the oldest living descendants to be identified apical ancestors within the native title claim group (refer to the genealogy at Fig 3.4 of the report by McDonald Hales & Associates).
The applicants have based their authorisation on the respect shown to elder generations under traditional custom to use their authority to make decisions on behalf of the group.’
In my opinion, the registrar’s delegate has reached a state of satisfaction on material available to him and it is not shown that he has been informed by any error in principle in so doing. Nor is it demonstrated that the formal requirements of ss190C(5) have not been met. …The authorisation requirement acknowledges the communal character of traditional law and custom which grounds native title. It is not a condition to be met by formulaic statements in or in support of applications. Nevertheless, I am satisfied that the requirements of the Act have been met in this case and that the registrar has reached the state of satisfaction not only by reference to the assertions contained in the affidavit but also by reference to other anthropological material supplied to him.”
78 We agree with these views. We think they answer the submission put by the State on this aspect of the case. Although the State’s reliance on Moran is understandable, that case was factually different to the present case. Ms Moran asserted in her application that she was an Elder of the Gundungara people, and was descended from Bobby Murruin, but she provided no information that supported her claim to represent the “Moran clan of the Gundungara people”, that is those directly descended from Murruin. She did not claim to have any special position in the “Moran clan”. By contrast, in the present case, there was before the Registrar an anthropological report that identified the applicants as the oldest living persons in the claimant group. The relevance of this information to authorisation is demonstrated by the following statement in the applicants’ affidavit:
“they (that is, the applicants) are so authorised by their descendants in accordance with a traditional custom acknowledged by the members of the native title claim group of younger generations respecting elder generations and elder generations having authority to make decisions and deal with matters, relating to traditional interests in land and waters on their own behalf and on behalf of younger generations.”
79 Like French J we are unpersuaded that the Registrar erred in accepting that the applicants failed to meet the requirements of s190C(4) and (5) in relation to authorisation.
Description of native title rights
80 Counsel for the State argues that French J erred in finding that the description of the native title rights and interests contained in the application for native title determination was sufficient to satisfy the requirements of ss62(2)(d) and 190B(4) of the NTA.
81 Section 62(2)(d) requires a claimant application to contain:
“a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;”
82 Section 190B(4) provides that, before accepting a claim for registration, the “Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights claimed to be readily identified”.
83 Once again, the submission put to us is identical to that put to French J and rejected by him. His Honour observed, correctly in our opinion, that the NTA is enacted to recognise and protect native title where it exists. It is not a requirement of the NTA that the sui generis customary rights and interests that constitute native title be expressed in terms appropriate for claims to rights in property developed under the common law. He said (at 260) the Act “cannot be applied to distort traditional law and custom or the rights and interests which arise under such law into convenient laundry lists of common law analogues”. French J went on (at 260-261):
“While the description of the native title rights and interests set out in this application may be seen as inconveniently broad, they are quite consistent with the assertion that the land in question is the traditional ‘country’ of the applicants and the native title claim group which they represent. No doubt if the content of the native title rights and interests varied from one part of the land or waters covered by the application to another, then that variation would have to be particularised to comply with the requirements of s62(2)(d). However such variation is not to be assumed. It cannot be said that a broad description fails to comply with the requirements of s62(2)(d) of the Act. Reference to the terms of the determination of the High Court in Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 shows that in an appropriate case native title rights and interests may be so broadly asserted and determined and the mere fact that there is a broad description proffered in the application does not mean that the rights broadly described cannot readily be identified within the meaning of s190B(4). In Mabo the definition of the native title rights and interests declared by the court subject to certain exclusions was in the following terms:
‘… the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands.’
Again, the sufficiency of the native title rights and interests is a matter of which the Registrar must be satisfied. There is scope for evaluative judgment in an expeditious administrative process carried out by people with relevant specialist experience. It is not for the court, in reviewing the registrar’s decision, to substitute its own view of the sufficiency of the native title rights and interests for those of the Registrar unless it can be shown that the Registrar’s state of satisfaction is based upon some error of principle.”
84 Counsel for the State argue that French J’s reliance on the form of the declaration in Mabo (No 2) “fails to recognise the significant differences between the elements of native title at common law and the requirements for registration under the NTA”. Counsel say:
“Importantly, the scheme of the NTA allows applications to go forward for mediation and determination even if not registered. There may be scope for a broader description of the native title rights and interests for the purposes of a native title determination than for the purposes of registration, particularly given the significant procedural rights which attach to an application upon registration.”
85 We recognise the force of these comments. It is true that the statutory preconditions for registration do not coincide with what must be shown to establish a native title claim. Yet it is important to remember that sometimes the only appropriate way in which to describe claimed rights and interests may be to use broad and general language. The present case provides an example. Schedule E of the application identified the claimed rights and interests in the following way:
“The native title rights and interests claimed are the rights to the possession, occupation, use and enjoyment as against the whole world (subject to any native title rights and interests which may be shared with any others who establish that they are native title holders) of the area, and any right or interest included within the same; subject to: (certain exclusions).”
86 In essence, the applicants asserted a right to the exclusive possession, occupation, use and enjoyment of the claimed land, subject only to any other established native title rights and the exclusions. Embraced in the description is the claim to use the land in such manner as the claimant group sees fit. How could that claim be expressed other than in broad and general language? Any attempt to itemise the incidents of occupation and use would be subject to the risk of omitting some item that was truly within the asserted right, but was overlooked or unforeseen when the list was prepared.
87 We reject the submission that the Registrar erred in failing to be satisfied that the application complied with s62(2)(d) of the NTA.
Factual basis for claimed native title
88 In dealing with this issue, French J said (at 261):
“The State submits that in their application the applicants do no more than repeat the assertions set out in ss62(2)(e) and 190B(5) of the Native Title Act rather than providing facts to support them. It is said the registrar cannot therefore be satisfied that there is any factual basis provided to support the assertions made. The registrar’s delegate in addressing this condition went beyond the statements set out in the application and referred to an accompanying anthropological report which had been adopted in an affidavit of the applicants as prepared at their instructions and with their assistance. This report was relied upon to provide the factual basis for the assertions. Section 190B(5) does not limit the registrar to consideration of the application in deciding whether the relevant state of satisfaction was reached and in my opinion unless it can be shown that he has erred somehow in principle in approaching the application of this condition, no basis has been disclosed for impugning the decision on grounds of non-compliance with the condition in 190B(5).”
89 We agree. We reject the submission that the Registrar erred in failing to be satisfied that the application complied with s62(2)(e) of the NTA.
ORDERS
90 All grounds of appeal fail. The appeal will be dismissed.
91 The State must pay the first respondents’ costs of the appeal. There will be no order for costs in relation to the Native Title Registrar or the intervenor, the Commonwealth Attorney General.
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I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. |
Associate:
Dated: May 2000
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Counsel for the Appellant: |
G Tannin |
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Solicitor for the Appellant: |
Crown Solicitor for the State of Western Australia |
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Counsel for the First Respondents: |
G McIntyre |
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Solicitor for the First Respondents: |
Corsers |
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Counsel for the Intervenor: |
R Orr |
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Solicitor for the Intervenor: |
Australian Government Solicitor |
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Date of Hearing: |
3 March 2000 |
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Date of Judgment: |
18 May 2000 |
