FEDERAL COURT OF AUSTRALIA

State of Queensland v Hutchison [2001] FCA 416

NATIVE TITLE - registration of native title claim - application for review of decision granting registration - provision of additional confidential information to delegate of Native Title Registrar -  whether delegate have regard to additional material - additional material needed to provide factual basis of claims - whether additional material part of application - whether application should be amended to reflect the additional material - reference in application to areas excluded from claim where native title extinguished

ADMINISTRATIVE LAW - delegate of Native Title Registrar relied on additional material in making registration decision - additional material relevant to matters upon which State entitled to comment - material not made available to State - whether material part of application - whether decision affected by error of law.

Statutes

Administrative Decisions (Judicial Review) Act 1977 ss 5(1)(b), 5(1)(h), 5(3)(a)

Native Title Act 1993 (Cth) s 47, 47A, 47B, 61,62,63,64,66, 190A, 190B,190C

Native Title Amendment Act 1998 (Cth)

Cases

Annetts & Anor v McCann & Ors (1990) 170 CLR 596 Refd

Daniels v Western Australia [1999] FCA 686 Refd

Kioa & Ors v West & Anor (1985) 159 CLR 550 Refd

Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia & Anor (1996) 149 ALR 78 Refd

North Ganalanja Aboriginal Corporation & Anor v The State of Queensland & Ors (1996) 185 CLR 595 Cited

State of Western Australia v Native Title Registrar & Evans [1999] FCA 1594 Cited

Strickland & Anor v Native Title Registrar & Anor (1999) 168 ALR 242 Cited

Strickland & Anor v Western Australia & Ors (1999) 89 FCR 117 Refd

Western Australia v Strickland & Ors (2000) 99 FCR 33 Cited

STATE OF QUEENSLAND V PETER HUTCHISON, ARTHUR CHARLES JOHNSON, BERNARD JOHN JOHNSON

QG 274 OF 1999

STATE OF QUEENSLAND v TONY SHELLEY AND ABRAHAM MURIATA

QG 249 OF 1999

KIEFEL J

12 APRIL 2001

BRISBANE

THE COURT ORDERS THAT:

1.         The decision of the delegate of the Registrar of the National Native Title Tribunal of 8  September 1999 be set aside.

2.         The matter be remitted for determination according to law.

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

THE COURT ORDERS THAT:

1.         The decision of the delegate of the Registrar of the National Native Title Tribunal of 12 August 1999 be set aside.

2.         The matter be remitted for determination according to law.

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

AND:

REASONS FOR JUDGMENT

QG274 of 1999:  The Wulgurukaba Claim

1                     On 8 September 1999, the delegate of the Registrar of the National Native Title Tribunal, the first respondent, accepted a claim made on behalf of the Wulgurukaba People for registration pursuant to s 190A Native Title Act 1993 (Cth)(“the Act”).  The State of Queensland sought review of that decision on two bases:  that it was not afforded procedural fairness, as some materials used by the delegate were not provided to it for comment; and because the application was uncertain in its reference to whether certain land was excluded from the claim.  The issue of the State’s standing was not pursued by the second and third respondents (“the respondents”).

2                     Prior to the commencement of the Native Title Amendment Act 1998 (Cth)  an application had been made to, and accepted by the Tribunal.  An amended application was filed in the Federal Court on 30 June 1999.   (I shall however refer to it as “the application” because of the issues relating to amendment of it which arise in the proceedings).  Under cover of a letter dated 19 May 1999 the Central Queensland Land Council Aboriginal Corporation (“the Council”) wrote to the Registrar on behalf of the claimants and enclosed two affidavits which had been sworn on 7 May 1999.  These may have been mislaid for they were again forwarded under cover of a letter dated 14 July 1999 after the application was filed.  Whilst a copy of the application was provided to the State, as the Act requires, the two affidavits were not, apparently because the Tribunal was asked to treat them as confidential.

The Additional Material

3                     The State submitted that the 1998 amendments to the Act effected a significant change to the procedures to be undertaken with respect to an application for a native title determination.  In North Ganalanja Aboriginal Corporation & Anor v The State of Queensland & Ors (1996) 185 CLR 595 the High Court had held, with respect to earlier provisions concerning acceptance of applications, that third parties had no right to put material forward.  The statutory scheme was one which required the Native Title Registrar and the Presidential Member to consider whether an applicant had shown a good prima facie claim.  That told against the proposition that the necessary opinion was to be formed on contentious materials supplied by third persons.  I shall shortly turn to the current statutory scheme.  One further aspect of the North Ganalanja Aboriginal Corporation case, which was relied upon by the State, was the recognition by the Court of natural justice principles in the event that either the Registrar or the Presidential Member had been at liberty to receive and consider material from third persons (621):

“If the Registrar or a presidential member were at liberty to receive from a third person and to consider information or material which casts doubts on the prima facie ability of an applicant to make out a claim, the Registrar or the presidential member would be bound to give the applicant an opportunity to answer and then, perhaps, to allow the third person and the applicant further opportunities to reply to each other before the Registrar or the presidential member formed an opinion on the question whether prima facie a claim could be made out.  The proceeding which was intended to lead to the formation of a preliminary opinion would become - as happened in the present case - a contest between parties with opposing interests and the controversy would be settled not by agreement between “parties” or by decision of the Federal Court as the Act intends but by a presidential member acting administratively.  That would be contrary to the method prescribed by the Act for determination of opposed claims - that is, determination by the Federal Court.  Third persons seeking to defeat an application would be able to procure an administrative determination of the application before those persons became entitled to be parties to the application.”

4                     The State submits that the amendments effected in 1998 confirm the existence of such a right in the Minister for the State.  Carr J held that to be the case in State of Western Australia v Native Title Registrar & Evans [1999] FCA 1594.

5                     Section 61 (Part 3, Div 1) of the Act as amended provides for the applications that may be made to the Federal Court of Australia.  They include native title determination applications.  Section 62(1)(a) provides that a claimant application must be accompanied by an affidavit, sworn by the applicant, and containing statements that the applicant believes the statements in the application are true;  that the interests claimed by the native title claim group have not been extinguished;  that the area is not covered by an entry in the Native Title Register;  and as to the applicant’s authority.  Of particular relevance is the requirement of subs(1)(b) that the application “must contain the details specified in subsection (2)”, which is in these terms:

“(2)     For the purposes of paragraph (1)(b), the details required are as follows:

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

(i)        the area covered by the application; and

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

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

(c)        details and results of all searches carried out to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application;

(d)       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;

(e)        a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:

(i)        the native title claim group have, and the predecessors of those persons had, an association with the area; and

(ii)       there exist traditional laws and customs that give rise to the claimed native title; and

(iii)      the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;

(f)        if the native title claim group currently carry on any activities in relation to the land or waters—details of those activities;

(g)       details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title;

(h)       details of any notices under section 29 (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area.

6                     Section 62(1)(c), by contrast, provides that an application may contain the following details:

“(c)     …

(i)        if any member of the native title claim group currently has, or previously had, any traditional physical connection with any of the land or waters covered by the application - that traditional physical connection; or

(ii)        if any member of the native title claim group has been prevented from gaining access to any of the land or waters covered by the application - the circumstances in which the access was prevented.”

7                     Upon receipt of an application for native title determination the Registrar of the Federal Court of Australia is obliged to give to the Native Title Registrar of the Tribunal, as soon as practicable, a copy of the application, the affidavit referred to above and any prescribed documents that accompany the application pursuant to s 61(5)(d) see:  s 63.  Nothing here turns on these lastmentioned documents.

8                     Section 66 then requires the Registrar (as I shall continue to call the Native Title Registrar) to provide information, or to give notice to certain parties after the referral of the application under s 63.  As will shortly be discussed, the Registrar has an important function to perform in relation to the registration of claims but s 66 and s 190A(3)(c) make it clear that the Registrar is first to provide the information, to which I shall now refer. Section 66(2) provides:

“(2)     If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the Registrar must, as soon as is reasonably practicable, give the State Minister or Territory Minister for the State or Territory a copy of:

            (a)        the application; and

(b)        any other documents that the Registrar of the Federal Court gives the Native Title Registrar under section 63 in relation to the application.”

9                     Particular reliance was placed by the respondents upon subs(2)(b) as confining the documents that must be provided by the Registrar to the State as those provided upon the referral and no more.  Subsection (3) goes on to provide that notice of the “details of” the application, be provided to various persons, bodies and the public.  This notice is not however to be provided until the Registrar has determined the question of registration under s 190A (see s 66(6)(a)).

10                  The determination by the Registrar (“the registration test”) is distinct from any native title determination, which may proceed regardless of whether the claim is registered.  Registration confers valuable rights and in particular the right to negotiate with respect to future acts which might affect the land or waters and rights associated with them.  Section 190A(3) provides:

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

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

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

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

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

11                  Section 190A(6) provides that the Registrar must accept the 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)”. Section 190C(2) requires:

“(2)     The Registrar must be satisfied that the application contains all the details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62.”

12                  It is necessary to set out most of the provisions of s 190B:

“Registration: conditions about merits of the claim

(1)       This section contains the conditions mentioned in paragraph 190A(6)(a).

Identification of area subject to native title

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

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.

Identification of claimed native title

(4)       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 and interests claimed to be readily identified.

Factual basis for claimed native title

(5)       The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:

(a)        that the native title claim group have, and the predecessors of those persons had, an association with the area; and

(b)        that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and

(c)        that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.

Prima facie case

(6)       The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.

Physical connection

(7)       The Registrar must be satisfied that at least one member of the native title claim group:

(a)        currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or

(b)        previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by:

(i)         the Crown in any capacity; or

(ii)        a statutory authority of the Crown in any capacity; or

(iii)       any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease.”

13                  It will be observed that the provisions concerning the information which may be provided to, or obtained by, the Registrar and the test for acceptance represent significant shifts from the regime with which the Court was concerned in the North Ganalanja case.  In particular, there is an opportunity now provided to a State to provide information which may be relevant to the conditions in ss 190B and 190C and whether they are satisfied.  It has been observed that the scheme of the Act now is not that registration will be granted “without input from others” (Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia & Anor (1996) 149 ALR 78, 91;  State of Western Australia v Native Title Registrar & Evans [33].  As Carr J observed in the lastmentioned case, s 190A(3)(c) implicitly recognises the right of the State to provide information to the Registrar which is relevant to the decision on registration;  and the Registrar is obliged to have regard to it, to the extent that it is reasonably practicable to do so and to the extent that the Registrar considers it to be relevant.

14                  Carr J went on to hold that, in this background, procedural fairness required the Registrar to furnish to the State at least the substance of any additional material which was furnished by the native title claim group to the Registrar in the course of making the registration decision.  In addition, in the circumstances of that case, there was a reasonable expectation created, on the part of the State that the Registrar would provide further information upon which he intended to rely.  (Such a submission is not pressed here).

15                  It was submitted before his Honour, as it was here, that the purpose of s 66(2) was simply to enable the State to consider whether to make an application to strike out the claim under s 66(4).  His Honour held that there is no reason apparent why the requirement to provide the materials to the State should be given such a narrow purpose, and I respectfully agree. 

16                  In State of Western Australia v Native Title Registrar & Evans the Registrar’s statement of reasons itself disclosed that the Registrar had relied upon the material in coming to his decision about registration.  In the present case the delegate’s reasons disclose that the two affidavits received by the Registrar appear to have been relied upon by him in connection with the requirements of both s 62(2)(e) and s 190B(5), which is to say the factual basis for the claimed native title.   When the matter first came on for hearing reference was not made to the body of the material in question, because of the respondents’ claims to confidentiality, which the State did not seek to challenge. 

17                  The State’s grounds for judicial review rested upon the material being obviously relevant to the decision about registration and the fulfilment of s 190B, matters upon which it was entitled to comment. During the hearing I expressed my concern about whether it was necessary to have regard to procedural fairness principles, since it appeared arguable that the additional material provided in fact formed part of the application.  If that were the case the State would be entitled to the affidavits, or details of their contents, as a matter of course and subject to questions of confidentiality.  If the material could not be so described it seemed to me that it may well be necessary to determine what other category or description it fell into.  It did not seem to me appropriate to determine questions of procedural fairness without an appreciation of what the documents conveyed and where that information fitted in, given the statutory background.  These considerations formed the basis for my order that the affidavits be made available to the State’s legal advisers on a confidential basis and to the Court.  It was not necessary in that process to determine whether there was a substantial basis for the claim to confidentiality.  The two affidavits in question were made by two of the native title claim group members and refer to matters relating to the activities of the Wulgurukaba People and the claim area, from which native title rights and interests might to an extent be inferred.  It will be recalled that s 62(2)(d) required the application to contain details of the description of the native title rights and interests claimed.  Paragraph (e) requires that there be provided a general description of the factual basis for the assertion of the existence of native title rights and interests.  Schedule E to the application here described the rights and interest claimed in ambit terms:

“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).

The rights and interests of common law holders of native title derived from and exercisable by reason of, the existence of native title, in particular the right:-

1.         to possess, occupy, use and enjoy the claim area

2.         to make decisions about the use and enjoyment of the claim area;

3.         of access to the claim area;

4.         to possession as against the whole world

5.         to control the access of others to the claim area

6.         to use and enjoy the resources of the claim area;

7.         to trade in the resources of the claim area;

8.         to receive a portion of any resources taken by others from the claim area;

9.         to maintain and protect places of importance under traditional laws, customs and practices in the claim area;

10.       to maintain, protect and prevent the misuse of cultural knowledge of the native title claim group associated with the claim area.

11.       to all minerals not wholly owned by the crown.

…”

Schedule F should have contained the description of the factual basis for those assertions, as required by s 62(2)(e).  The title to the form did not seem to focus upon the need to provide something of the factual basis.  It was entitled “General Description of Native Title Rights and Interests Claimed”.  The information provided was:

“The Native Title rights and interests are those of and flowing from the right to possession occupation use and enjoyment of the claim area as detailed in schedule E, pursuant to the Traditional Laws and Customs of the Native Title Claim Group based upon the following facts:

(i)        the Native Title Claim Group have and the predecessors of those persons had, an association with the claim area;  and

(ii)       there exists traditional laws and customs that give rise to the Native Title rights and interests claimed as detailed in Schedule E;  and

(iii)      the Native Title Claim Group have continued to hold the Native Title in accordance with those traditional laws and customs.”

18                  Schedule F went no way towards compliance with s 62(2)(e) in my view.  This may well be what prompted communication between the Tribunal and the Council which resulted in the provision of the two further affidavits.  The delegate then utilised that information as providing the details required of the factual basis for the assertions in Schedule E, as the reasons for the registration determination disclose.  I do not comment upon the sufficiency of the material for that purpose.  For present purposes it may be observed that without that material s 62(2)(e) could not have been said to have been complied with at all.

19                  The respondents maintain their position that the material was not intended to be, and should not be regarded as, part of the application.  They submit that it fell into the category of “other documents” supplied which may be considered by the Registrar or delegate under s 190A(3)(a).  Even if the additional material included subject matter which might have been dealt with in the application, it was not in fact provided as part of that document.  It was not then amongst the materials supplied to the Tribunal, which it was in turn obliged to provide to the State.

20                  The position adopted by the respondents overlooks the statutory obligation, on the part of the Registrar or delegate, to ensure that the application contains all of the information required by s 62.  This is part of the registration test:  s 190C(2).  The logical result of the respondents’ contention, that the affidavits were not to be taken as part of the application, would be that the registration test must fail.  It would also follow that there was no evidence to found the delegate’s decision with respect to s 62(2)(e).

21                  It is not necessary to consider, at this point, whether there might be “additional materials” which might be considered by the Registrar but need not be provided to the State.  In my view where there is material later furnished, which is to be used to furnish the detail required by the statute in the application, the application should reflect these changes.  The information here required by s 62(2)(e) is clearly part of the application filed in Court and changes to it should be notified to the Court and the parties in the manner prescribed, which is to say by a process of amendment:  and see Strickland & Anor v Western Australia & Ors (1999) 89 FCR 117.  Had such an application been made, the State would have been made aware of the new detail, either on or following the application and these proceedings would have been largely unnecessary.  Other parties would also be notified after amendment:  see s 64(4).

22                  I should add that s 64, which is expressed to deal with amendments, does not appear to me to be intended to limit the amendments which can be made to those specifically dealt with by the section (changes to area or applicants in group claims).  It is of some importance that s 64(3) does allow for amendments to an application to be made despite the fact that the Registrar is considering it in connection  with registration.

23                  On any view of the matter the delegate’s decision is affected by error of law.  There was, as earlier observed, no basis for the decision with respect to the s 62(2)(e) information and s 190C(2) required that it be established that the material had been provided:  see s 5(1)(h) and 5(3)(a) Administrative Decisions (Judicial Review) Act 1977.  If the additional information was to be regarded as part of the application, procedures required to be observed in connection  with the decision were not observed:  s 5(1)(b).  The State sought an order in the nature of mandamus on the basis of breach of the statutory obligation to provide a copy of the application, but this does not seem to me to be an appropriate order in the circumstances.  The decision should be set aside and the matter remitted for determination according to law, either by the Registrar or another delegate.  The question of the sufficiency of the information in the application and the use to which the further material is to be put may also be assessed by the respondents.

24                  I add that in other cases the principles of procedural fairness may arise for consideration in connection  with material which is truly “additional”, which is to say where it is not to be assessed as part of the details required of the application.  As a starting point, a consideration as to whether the material was surplus to the requirements of s 62 should in many cases resolve whether the State, or some other party referred to in s 66(2) or (2A), should be provided with it.

25                  In Western Australia v Strickland & Ors (2000) 99 FCR 33, [78] and [79], the Full Court upheld the decision of French J that a Registrar is not confined by s 190B(4) or (5) to the information provided in the application.  There the additional material was from anthropologists.  It may be considered that such evidence may go beyond what is required to be set out in the application.  Section 62(2)(c) may itself provide an example of what I have just referred to.  It may generally be observed that there is a correspondence between the provisions of s 62 and s 190B (see s 62(2)(a), (b) and s 190B(2);  s 62(2)(d) and s 190B(4)).  It may be inferred that the application is to furnish much of the information for the Registrar’s purpose.  It will also provide an outline of the claims for other parties, such as the State, who are entitled to comment upon whether s 190B (and s 190C) are met in connection with registration.  Section 62(2)(e) does not entirely correspond with s 190B(5).  It requires that a “general description” of the factual basis for the assertions of the existence of native title rights and interests be provided in the application.  Section 190B(5) may require more, for the Registrar is required to be satisfied that the factual basis asserted is sufficient to support the assertion.  This tends to suggest a wider consideration, of the evidence itself, and not of some summary of it.

26                  It may also be recalled that s 62(1)(c) does not require that details of the traditional physical connection of any member of the claim group to the area, or their prevention from gaining access to it, be provided in the application.  If it was provided the State would be entitled to it as it formed part of the application.  Section 190B(7) requires the Registrar to reach a level of satisfaction in relation to traditional physical connection.  At some point prior to this consideration the native title claimants must provide some such information, but the statute does not expressly require  any subsequent material on this topic to be provided to the State.  It may fall within the description of information “…in any other documents provided by the applicant”, to which the Registrar is to have regard under s 190A(3)(a). 

27                  In an appropriate case the question whether an intention to exclude the common law rules of procedural fairness is said to arise from provisions such as this, or the statutory scheme as a whole, may receive further consideration:  (Kioa & Ors v West & Anor (1985) 159 CLR 550, 554;  Annetts & Anor v McCann & Ors (1990) 170 CLR 596, 598). It is not necessary to further consider it here.

The Areas Excluded

28                  The area covered by the application was identified as Lot 456 on Plan NPW 398 and Lot 133 on Plan EP 808121 County of Elphinstone, Parish of Magnetic.  It relates to part of Magnetic Island off the coast of Queensland.  The claim area was identified on maps.  In the description of “land claimed”, in Attachment B to the amended application, there were listed areas which were excluded from the claim area as follows:

“(b)     Areas that are excluded from the claim area;

            (i)        subject to (iv), valid Acts that occurred on or before the 23 December 1996 comprising such of the following that are considered extinguishing acts within the meaning of the Native Title Act (1993) Cth as amended, namely;

                       (a)       Category A past acts as defined in s 228 and s 229 of the Native Title Act (1993) Cth.

                       and;

                       (b)       Category A intermediate acts as defined in sec 232A and s 232B of the Native Title Act (1993) Cth;

            (ii)       subject to (iv), any valid previous exclusive possession act(s),as set out in Division 2B of Part 2 of the Native Title Act (1993) Cth (as amended) done in relation to the area; and the act(s) were attributable to the Commonwealth or the State;

            (iii)      subject to (iv), any areas over which native title has otherwise been extinguished.

(iv)       the paragraphs above and below are subject to the provisions of s47 , s47A and s47B of the Native Title Act (1993) Cth as may apply to any part of the claim area.”

The maps which were also attached showed the tenure of the land as “national park”. The focus of the State’s submissions is upon sub-paragraph (iv).

29                  The native title rights and interests referred to in schedule E were said to be subject to this general proviso:

“Save that the right to possession as against the whole world is not claimed for such area or areas if any that are determined not to be occupied within the meaning of section 47B of the Native Title Act 1993 (Cth) that are determined to be subject to a valid previous non exclusive possession act within the meaning of section 23F of the Native Title Act 1993 (Cth).”

30                  Section 47B can operate so that any extinguishment of the native title rights and interests in question by the creation of prior interests in relation to that area, may be disregarded.  It requires two conditions to be met, relevantly, that the area is not covered by a reservation, proclamation or dedication and that one or more members of the native title claim group occupy the area.  Both these matters are assessed at the time the application is made.  The question of occupation was raised by the State in its correspondence with the Registrar, but it is not here relevant.  The parties however accepted that the area in question appears to be affected by some dedication or reservation as a national park.

31                  The State’s principal contention was that it could not be said, with reasonable certainty, whether native title rights and interests are claimed in relation to the area because of the operation of the proviso.  The requirements of s 190B(2) could not, as a matter of law, be satisfied.  I did not understand the second ground for review, which relied upon the Registrar being aware of the extinguishment of the native title rights and interests (s 190B(9)), to be pursued, although some of the delegate’s findings with respect to that provision were said to confirm an erroneous approach.

32                  The delegate found in connection  with s 190B(2):

“In my view the exclusion clauses contained in Schedule B and Schedule E of the amended application would effectively exclude or qualify the rights asserted over any parts of the lots which may reveal themselves to have been subject to any scheduled tenures or other extinguishing acts or events should these circumstances be identified in further reviews of the tenure material.”

33                  This may not be thought to be particularly clear.  Later, and in relation to s 190B(9) the delegate said:

“Based on the material currently before me the claimed land is clearly identified as national park, and therefore the s 47 exemptions may appear to have no immediate application.

However, it is arguable that should further research into the past tenure of the claimed area reveal that native title rights and interest have been extinguished, the applicants have taken the precaution of expressing their intention at Attachment B to have such extinguishment disregarded wherever the exceptional circumstances described under sub-section 47(2), 47A(2) and 47B(2) might apply.

Given that the claimed area in this matter is exclusively national park, and I have no information before me to suggest that the native title rights and interests claimed have otherwise been extinguished, I consider that, for the purpose of making this administrative decision, I am not required to come to a conclusion on either of the two issues raised by the State.”

34                  The State submitted that the provision stood as a “formula”.  The use of general categories or formulas was referred by French J in Strickland & Anor v Native Title Registrar & Anor (1999) 168 ALR 242, [50] and [54]-[55] and by Nicholson J in Daniels v Western Australia [1999] FCA 686.  French J held, with respect to ss 47, 47A and 47B, that it was unrealistic to expect a concluded definition of the areas subject to these provisions to be given in the application.  It seems to me that the delegate has approached the matter in a similar way, leaving the contentions, if any, to be raised at a later point.

35                  It does not seem to me that what is here complained of is related to concerns regarding the certainty of the description of the land and waters identified in connection  with the rights and interests claimed, as s 62(2)(a) and (b) and s 190B(2) require.  It stands as a reservation of position which, it would seem, the delegate has largely ignored as relevant at this point.  Whether it can and will be pursued will depend on the outcome of further tenure searches.  The State’s contention is simply that the respondents should now make plain whether there will be a challenge to the validity of the dedication or reserve.  This does not in my view create uncertainty of description and no error of law on the part of the delegate is identified.

QG 249 of 1999:  the girrimay peoples’ claim

36                  It is generally accepted that the matters raised for determination in QG 274 of 1999 will determine the issues realised in these proceedings.  It is nevertheless necessary for me to characterise the “additional material” which here was subject to an express request of the Registrar that it not be disclosed.  That request was acceded to.  The issue relating to the areas excluded also raises a separate point.

The Additional Material

37                  Amended applications were filed on 6 May and 18 June 1999.  I shall again refer to the last of them simply as “the application”. On 28 March 1999 the Council wrote to the Tribunal enclosing what was called “the additional information required for the purposes of the Registration Test …”.  The material was said to be provided in accordance with the Federal Court “Form 1”, which is to say it bore the heading of the proceedings in the Federal Court of Australia.  Also enclosed as “additional information” was an affidavit:

“… that supports the factual basis of the Claim.  This affidavit should be considered confidential, as it has not been filed with the Federal Court.

We ask that you notify us a minimum of 3 days prior to the registration of the claim so that we may ensure that the Federal Court has a filed copy in the appropriate form.”

This would tend to suggest that the confidentiality claim was to persist only whilst the registration process continued and seems to acknowledge a need to put the documents filed in the Federal Court in order whilst at the same time withholding them from other parties.  This letter does not appear to have raised any question in the mind of the Tribunal officers who dealt with it.  That is, in my view, a matter of some concern. 

38                  Two affidavits, from members of the claim group, and an anthropological report were enclosed.  I will not refer to the information detailed in them.  The reference below to the uses to which they were put conveys sufficient about their subject-matter.  The report was entitled “Additional Information” and it was said by the anthropologist that it was expected that the report and the first affidavit, read together, could make out a prima facie case.

39                  The application itself referred to the native title rights and interests claimed in very general terms, namely that they were “…the rights to possession, occupation, use and enjoyment, as against the whole world, in relation to the claim area.”  The factual basis for the assertion of the existence of such rights and interests was:

“The Native Title rights and interests are those of and flowing from the right to possession occupation use and enjoyment of the claim area, pursuant to the Traditional Laws and Customs of the Native Title Claim Group based upon the following facts;

(i)        the Native Title Claim Group have and the predecessors of those persons had, an association with the claim area;  and

(ii)       there exists traditional laws and customs that give rise to the Native Title rights and interests claimed as detailed in Schedule E;  and

(iii)      the Native title Claim Group have continued to hold the Native Title in accordance with those traditional laws and customs.”

40                  Section 62(2)(c) had not, in my view, been complied with. There was no description of the factual basis given.  The material was then utilised by the delegate for the purpose of considering compliance with s 62(2)(c), which s 190C(2) required.  The additional material was also used by the delegate in considering the requirements of s 190B(5) and also s 190B(7).  It is not apparent whether any part of the anthropological report was used for one purpose, but not another.  It may be that the information provided with respect to the native title rights and interests claimed was also relevant to any question under subsection (7).  This may often be the case.

41                  In this case it might be said that the terms of the letter, set out above, imply knowledge, on the part of the native title claimants and the Council, that the information was to be used in connection with the application.  The respondents did not however concede that this had ever been the intention.  My reasoning in QG 274 of 1999 applies here and the orders there proposed are appropriate in this case, although it may be that further consideration will need to be given, by the respondents and the Registrar, to the material which is necessary to meet the requirements for the application.  There may remain an issue concerning any material said to address only the matters in s 190B(7), but it is not necessary presently to determine it.

The Areas Excluded

42                  The land claimed was said to comprise “unallocated State Lands within the Cardwell Shire”  It is not necessary to set out each of the lots listed.  Areas that were excluded from the claim are or were:

“Those of the following areas if any, that are determined not to be occupied within the meaning of section 47B of the Native Title Act 1993 (Cth) are excluded from the claim:

“(i)      Lot 181 on CWL3082 if determined to be subject to a valid previous exclusive possession act attributable to the State.

(ii)       the part or parts if any of Lot 9 on USL 39000 that are determined to be subject to:-

(a)       a valid exclusive pastoral lease within the meaning of section 248A of the Native Title Act 1993 (Cth);  and or

(b)       a valid previous exclusive possession act attributable to the State.

(iii)      That part if any of Lot 53 on USL38929 that is determined to be subject to a valid exclusive pastoral lease within the meaning of section 248A of the Native Title Act 1993 (Cth) or to which Native Title is determined to have been extinguished at common law.

(iv)      Lot 25 on USL 38644, Lot 26 on USL 38644, Lot 33 on USL 38644, Lot 42 on USL 38644 if determined to be subject to valid previous exclusive possession acts attributable to the State.

(v)       Lot 2 on USL 38696 if, Native Title is determined to have been extinguished at Common Law.

(vi)      Lot 3 on RP 700180 if it is determined to have been subject to a valid previous exclusive possession act and was not vacant crown land within the meaning of section 47B of the Native Title Act 1993 (Cth) at the time the application was made.”

The delegate held that the information and maps sufficiently identified whether native title rights and interests were claimed with respect to particular land or waters.

43                  The ground for review here stated was that s 47B could not apply to Lot 181 because the tenure information showed it to be a town reserve.  The delegate noted such a reservation.  Two complaints appear to be raised in submissions.  The delegate went on to observe that the Lot had reverted to vacant Crown land subsequent to its reservation in 1927.  This was said to involve an error appearing in a database, but it was not further explained.  In relation to whether a question could be raised about the township reserve the same point is again is made namely that it is necessary for any challenge to be stated in the application.  I have dealt with that submission in QG 274 of 1999.

44                  The orders in this matter will be in the same terms as those in QG 274 of 1999.

Associate:

Dated:              12 April 2001