FEDERAL COURT OF AUSTRALIA

Donnelly for The Wahlabul People v Registrar National Native Title Tribunal [2000] FCA 1330

NATIVE TITLE – application for interlocutory relief – failure of registration test - applicant sought mandatory order that pre-amended application be replaced on Native Title Register – applicant sought leave to amend application to add address for service – failure to satisfy requirements of ss 61(3), 190B(5) and 190C(3) Native Title Act 1993 (Cth) - whether there was a seriously arguable case to justify the grant of interlocutory relief – consideration of nature of review provided for by s190D(2)

Native Title Act 1993 (Cth) ss 61(3), 64, 84C(1), 190(3), 190A(6), 190B, 190B(3), 190B(5), 190C, 190C(2), 190C(3), 190D(1), 190D(2),

Native Title Amendment Act 1998 (Cth) Schedule 5 Part 3, Schedule 5 Part 4 cl 11(5), Schedule 5 Part 4 cl 11(9)

Federal Court of Australia Act 1976 (Cth) s23

North Ganalanja Aboriginal Council v Queensland (1995-1996) 185 CLR 595 cited

Strickland & Nudding on behalf of the Maduwongga People [1999] FCA 1089 cited

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 discussed

Strickland v Native Title Registrar (1999) 168 ALR 242 referred to

State of Western Australia v Strickland [2000] FCA 652 discussed

Powder v Native Title Tribunal (unreported, 5 July 1999, Kiefel J) discussed

DONNELLY FOR THE WAHLABUL PEOPLE v REGISTRAR NATIONAL NATIVE TITLE TRIBUNAL & ORS

N 6008 OF 2000

HELY J

19 SEPTEMBER 2000

SYDNEY

THE COURT ORDERS THAT:

1.         The motion of 1 September 2000 be dismissed.

REASONS FOR JUDGMENT

1                     On 29 July 1997 an application for a determination of native title under the Native Title Act 1993 (Cth) was lodged with the Native Title Registrar.  On the same day the application was entered onto the Register of Native Title Claims.

2                     The 1993 Act was significantly amended by the Native Title Amendment Act 1998 (Cth) which largely came into effect on 30 September 1998 (“the New Act”).  Prior to the 1998 amendments, registration of a native title claim was a relatively straight forward matter, and was often effected, as it was in the present case, on the day on which the application was made: cf North Ganalanja Aboriginal Corporation v Queensland (1995-1996) 185 CLR 595; Strickland & Nudding on behalf of the Maduwongga People v Native Title Registrar [1999] FCA 1089.

3                     The 1998 amendments introduced a more strenuous registration test.  Section 190A(6) provides:

(6) The Registrar must accept the claim for registration if the claim satisfies all of the conditions in:

(a)   section 190B [which deals mainly with the merits of the claims]; and

(b)   section 190C [which deals with procedural and other matters].

In any other case the Registrar must not accept the claim for registration.”

4                     Schedule 5 to the 1998 amending Act contains application and transitional provisions in relation to amendments made by the Act about native title determination applications.  The application is taken to have been made to the Federal Court (Part 3) and the Registrar must consider the claim under s 190A of the New Act as soon as reasonably practicable (Part 4 cl 11(5)).  Thus, although an entry recording details of the claim was on the Register of Native Title Claims at the commencement of the New Act, the registration test introduced by the New Act is nonetheless to be applied to the claim.

5                     Part 4 cl 11(9) provides that if the claim does not satisfy all of the conditions in ss 190B and 190C of the New Act, the Registrar, must remove details of the claim from the Register and give written notice as required by s 190D(1) (emphasis added).

6                     The registration test is not a screening mechanism for access to the Federal Court.  A claim which is not registered may proceed to determination in the Court.  But when a claim is on the Register the applicants are afforded significant procedural rights, including the right to be consulted upon, or to comment, on specific classes of future acts, and the right to negotiate over the grant of mining tenements or compulsory acquisition of the land.  Given those statutory benefits, the purpose of the registration test is to ensure that only those claims with merit are registered.

7                     Section 64 of the New Act is concerned with amendment of applications.  If an application is amended the Registrar of the Federal Court must give a copy of the amended native title application to the Native Title Registrar.  Section 190(3) provides that if the Registrar is given a copy of an amended application, the Registrar must:

(a)                if the claim is accepted for registration under s 190A – amend the Register to reflect the amendment; or

(b)               if the claim is not accepted for registration under s 190A – amend the Register to remove any entry relating to the claim.

8                     The present application was amended on 10 December 1999.  After granting a number of extensions of time, the delegate considered the application in its amended form against each of the conditions in s 190B and s 190C of the New Act, and decided that the application would not be accepted for registration pursuant to s 190A of the New Act.

9                     The Registrar was thus required either by cl 11(9) of Part 4 of Schedule 5 of the 1998 amending Act, or by s 190(3)(b) of the New Act to remove any entry relating to the claims from the Register.  It may be assumed that the Registrar has complied with his statutory obligation in this respect.

10                  On 12 July 2000 application was made for an order for review of the Registrar’s decision.  After some initial confusion, the applicant confirmed that the application was for a review of the Registrar’s decision under s 190D(2) of the New Act, rather than an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

11                  By motion filed on 1 September 2000, as modified in the course of argument, the applicant seeks

–                    a mandatory interlocutory injunction directing the Registrar to replace the details of the original application, prior to its amendment on 10 December 1999, onto the Register,

–                    leave to further amend the application to add the address for service as required under s 61(3) of the New Act.

12                  The Registrar appeared on the hearing of the motion, but neither consented to, nor opposed, the grant of the relief sought.  That course was adopted taking account of the decision of the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35, and of the further fact that the Tribunal is currently engaged in a mediation in relation to overlapping claims.

13                  Jurisdiction to grant interlocutory relief is said to derive from s 23 of the Federal Court of Australia Act 1976 (Cth) which empowers the Court to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.  Mr Lloyd, who appeared for the second respondent (“the State Minister”) accepted the jurisdiction to grant interlocutory relief, but submitted that this was not an appropriate case for its exercise.  In his submission, the applicant has not established a seriously arguable case in relation to any of the delegate’s findings of failure to satisfy the conditions in ss 190B and 190C, let alone a seriously arguable case in relation to all those conditions.  Whilst registration may confer rights on the applicant, it must at least potentially, impose obligations on third parties.  That fact was to be taken into account in the assessment of the balance of convenience.

14                  The benefits of registration, under the New Act, flow to an applicant who can satisfy the Registrar that the conditions in ss 190B and 190C have been satisfied.  In Strickland v Native Title Registrar (1999) 168 ALR 242 at [44] French J referred to the significant margin of appreciation which must be allowed for the experience and detailed administrative knowledge of the Registrar and his delegates in making these largely evaluative judgments on whether applications comply with the statutory conditions of registration.  Whist an applicant, under the transitional provisions, retains the benefit of his registration under the 1993 Act, the applicant does so only until the registration test under the New Act has been applied to that application.

15                  One of the grounds on which the applicant failed to satisfy the registration test was that the application does not state the name and address for service of the applicant as required by s 61(3).  That results in a failure to comply with s 190C(2), which requires the Registrar to be satisfied that the application contains all the details and other information required by s 61.  The fact that the applicants now seek leave to amend the application to include this information confirms non-compliance with s 61(3) in this regard.

16                  On 4 January 2000 (AB 800) and on 8 June 2000 (AB 815) officers of the Tribunal drew Mr Oshlack’s attention to the failure of the application to comply with the provisions of the Act is this respect.  But until the present motion was filed on 1 September 2000, no attempt was made to amend the application in order to overcome this deficiency.

17                  The non-compliance with s 190C(2) in this respect is technical and does not bear upon the merits of the application.  But nonetheless there is non-compliance with a mandatory provision, and the applicants have only themselves (or perhaps Mr Oshlack) to blame for failure to fill out the form properly.  The Registrar or his delegate granted the applicants extensions of time before applying the registration test to this application.  The only reason that I devote any time to this aspect of the matter at all is because the applicants do not even profess to have an answer to the delegate’s decision in this respect.  It would not be a proper exercise of the power to grant interlocutory relief to do so for the purpose of enabling a non-conforming application to be further amended in the expectation that conceivably it will be put into a form which would entitle the application to registration.

18                  I do not propose to deal with all of the alleged failures to comply with ss 190B and 190C.  Two of the more important respects in which the application was assessed as failing to comply with the conditions of the Act are:

-                     s190C(3) – overlapping claims; and

-                     s190B(5) – the Registrar must be satisfied that the factual basis on which it is asserted that native title rights exist is sufficient to support the assertion.

19                  As the application for an order of review is in my docket, and will ordinarily be heard by me, it is not appropriate that I should say any more about these alleged failures to comply with the conditions of the Act than is necessary to dispose of the current application.

20                  I am not satisfied on the materials and arguments so far adduced that there is a sufficiently arguable case to justify the grant of interlocutory relief.  As to s 190C(3), the delegate’s decision is consistent with the approach of the Full Court in State of Western Australia v Strickland [2000] FCA 652.  It may be (and I do not decide) that persons included in the native title claim group for the current application are entitled to complain of their inclusion as a member of the native title claim group for some or all the three previous applications.  It may be (and I express no view) that an application could be made to strike out the previous applications under s 84C(1) of the New Act.  Be that as it may, the Registrar’s decision in relation to the present application is not shown to be erroneous in this respect.  On 8 September 1999 (AB 666), Andrew Donnelly wrote to the Registrar expressing his concern that the delegate registered claims NG6042/98 and NG6071/98 in the knowledge that the claims were made on behalf of persons, including himself, without consultation, consent or authorisation.  The letter stated that unless those claims were amended by removing the overlapping claimants, a court order would be sought for their removal.  No application in that respect has been made.  I appreciate that Mr Donnelly has respect for Mr Walker, the claimant in NG6042/98 and NG6071/98, and wishes to mediate and hopefully to resolve the issue of overlapping claimants.  But that cannot alter the fact that when the registration test was applied to the claim, s190C(3) was not satisfied.

21                  As to s 190B(5), issues may arise as to the nature of the review for which s 190D(2) provides.  There appears to be a tension between the decision of Kiefel J in Powder v Native Title Tribunal (unreported, 5 July 1999), and the decision of the Full Court in Strickland (supra), which does not refer to Powder.  Under s190B(5) it is the Registrar who must be satisfied as to the matters specified.  No reviewable error has been identified in the delegate’s decision.  It was contended that the delegate failed to consider the family geneologies which had been supplied in connection with the application.  But the response to s190B(3) states that they have been considered by the delegate.

22                  In my view all that Mr Oshlack has done is to articulate, with varying degrees of clarity, arguments which he wishes to advance in support of a claim to set aside the delegate’s decision.  He has not persuaded me that those arguments have any real prospect of success, particularly bearing in mind that he must succeed on all of them.

23                  In those circumstances, the application for an interlocutory injunction should be dismissed.  I decline to entertain an application in N6008/00 to amend the application in NG6073/98 which, because of the different parties, needs to be made with the context of that application.

24                  The motion of 1 September 2000 is dismissed.

Associate:

Dated:              19 September 2000