FEDERAL COURT OF AUSTRALIA

 

Murray v The Registrar of the National Native Title Tribunal [2002] FCA 1598

ADMINISTRATIVE LAW – application to review a decision of a delegate of the Registrar, National Native Title Tribunal to register an Indigenous Land Use Agreement (ILUA) - whether s 24CD of the Native Title Act requires that all persons who claim to hold native title in the area be a party to the ILUA – whether the Tribunal is required to inform and consult any representative body about the ILUA and its contents – whether there was a reasonable apprehension of bias on the part of the decision-maker – error of law – whether members of an indigenous group of whom the applicant is one were denied procedural fairness – whether the decision-maker took into account irrelevant considerations or failed to take into account relevant considerations – whether the decision to register the ILUA was so unreasonable that no reasonable decision-maker would have made it.

CONSTITUTIONAL LAW - whether the decision to register the ILUA was beyond jurisdiction because it involved the exercise of judicial power.

Administrative Decisions Judicial Review Act 1977 (Cth) s 5

Native Title Act 1993 (Cth) s 24CG, s 24CL, s 203AD, s 203FE, s 251A

Judiciary Act 1903 (Cth) s 78B

De Rose v South Australia [2002] FCA 1342, referred to

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, applied

Hot Holdings Pty Ltd v Creasy [2002] HCA 51 at [68], cited

Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369, applied

Re Cram; ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140, applied

Tankey v Adams (2000) 104 FCR 152, applied

Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656, applied

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361

Luton v Lessels  (2002) 187 ALR 529, applied

Re The Amalgamated Metal Workers Union; Ex parte The Shell Company of Australia Ltd (1992) 174 CLR 345, applied

Re Printing and Kindred Industries Union; Ex parte Vista Paper Products Pty Ltd (1993) 113 ALR 421, applied

SONIA MURRAY -v- THE REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL, BLAIRGOWRIE SAFE BOAT HARBOUR LTD and CAROLYN BRIGGS

 

V 135 OF 2002

 

MARSHALL J

MELBOURNE

20 DECEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 135 OF 2002

 

BETWEEN:	SONIA MURRAY APPLICANT
AND:	THE REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL FIRST RESPONDENT   BLAIRGOWRIE SAFE BOAT HARBOUR LTD SECOND RESPONDENT   CAROLYN BRIGGS THIRD RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	20 DECEMBER 2002
WHERE MADE:	MELBOURNE

 

 

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         Within fourteen days of the making of Order No 1, the second respondent file and serve its written submissions concerning costs.

3.         Within a further fourteen days, the applicant file and serve her written submissions concerning costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 135 OF 2002

 

BETWEEN:	SONIA MURRAY APPLICANT
AND:	THE REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL FIRST RESPONDENT   BLAIRGOWRIE SAFE BOAT HARBOUR LTD SECOND RESPONDENT   CAROLYN BRIGGS THIRD RESPONDENT

 

JUDGE:	MARSHALL J
DATE:	20 DECEMBER 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1                     On 6 March 2002, the applicant, Sonia Murray, applied to the Court pursuant to s 5 of the Administrative Decisions Judicial Review Act 1977 (Cth) (“the ADJR Act”) for an order of review in respect of a decision of a delegate of the first respondent, the Registrar of the National Native Title Tribunal, to register an Indigenous Land Use Agreement (“the ILUA”) on 21 December 2001.

2                     The decision to register the ILUA was made pursuant to s 24CD of the Native Title Act 1993 (Cth) (“the Act”) by Ms Susan Walsh, a delegate of the first respondent. Reasons for Ms Walsh’s decision were published after the formal registration of the ILUA. The ILUA is entitled “Blairgowrie Safe Boat Harbour Indigenous Land Use Agreement (Area Agreement)”.

The agreement

3                     On 30 November 2000, the application to register the ILUA was received by the first respondent. The parties to the ILUA were the third respondent, Ms Briggs (on behalf of the Boonerwrung People) and the second respondent, Blairgowrie Safe Boat Harbour Ltd (“the company”).

4                     The agreement disclosed that the company proposed to build a safe boat harbour at Blairgowrie on the Mornington Peninsula. The project was intended to be integrated with existing facilities at the Blairgowrie Yacht Squadron Inc and was to be undertaken on Crown land and water. The recitals to the agreement included the following:

“E.      No native title claim has been filed with the National Native Title Tribunal in relation to the Subject Land.

F.                 The Subject Land falls within an area in relation to which the Boonerwrung people are concerned to protect Aboriginal cultural heritage and artefacts.

G.                In circumstances where it is not certain whether the granting of the approvals to facilitate the Project, and the construction of the Project itself, will affect any native title rights and interests, the parties wish to ensure that the Project and all such approvals are valid Future Acts under the Native Title Act 1993 (Cth) (“NTA”), and hence have agreed to enter into this Agreement as an Indigenous Land Use Agreement (Area Agreement) (“ILUA”) under the NTA.

H.                Compensation has been agreed between the parties in accordance with the terms of this Agreement.

I.                   In this Agreement the “Boonerwrung people” means those Aboriginal people who, in accordance with the traditions and customs of the Boonerwrung people, are regarded by the Boonerwrung people as being members of that group and constitute the native title group for the purposes of section 24CD(3) of the NTA.”

 

5                     The term “future Acts” is defined in the agreement as “the construction of the Project, and any act necessary to enable the Project to be constructed in accordance with all applicable laws …”.

6                     Paragraph 2 of the agreement is headed “Validation of the Future Acts”, and provides that:

“It is the intention of each of the parties that this Agreement will be registered under s.24CL of the NTA, and that upon registration, to the extent that any native title rights and interests exist over the Subject Land, and are affected in any way by the Future Acts, the Future Acts referred to in this Agreement will become valid pursuant to s.24EB(2) and/or s.24EBA(3) of the NTA. Accordingly, each party undertakes to take all steps in its power to ensure that this Agreement  achieves registration.”

7                     Paragraph 5 of the agreement is entitled “Non-extinguishment”. It provides that:

“The parties agree that the carrying out of the Future Acts pursuant to this Agreement will not constitute extinguishment of any native title rights and interests. If the carrying out of the Future Acts affects native title rights and interests to any extent, then the non-extinguishment principle in s.238 of the NTA will apply to each of the Future Acts, pursuant to s.24EB(3) and/or s.24EBA(4) of the NTA.”

8                     Paragraph 11 of the agreement is headed “Authorisation”. It provides that:

“11.1   Each party warrants that it is authorised and has capacity to execute this agreement and to bind itself.

11.2          In particular, the Boonerwrung people warrant that in executing this Agreement, it has made all reasonable efforts to ensure that all persons who hold or may hold native title in relation to the Subject Land have been identified and have authorised his Agreement in accordance with section 24CG(3) of the NTA.”

The pre-registration process

9                     Before considering whether to accept the application to register the ILUA, the first respondent sought further information from the parties to the agreement.

10                  On 9 April 2001, a delegate of the first respondent, Mr Nish, decided to accept the application to register the ILUA. The delegate was satisfied that the third respondent, Ms Briggs, was appropriately authorised to enter into the ILUA, “under the traditional laws and customs of the Boonerwrung people”.

11                  Notice of the ILUA was given, pursuant to s 24CH of the Act. For the purposes of s 24CH(3), the “notification day” was specified as 16 May 2001.

12                  By letter dated 8 May 2001, the first respondent wrote to Mirimbiak Nations Aboriginal Corporation (“Mirimbiak”) concerning the ILUA in the following terms:

“This is to advise that the above area agreement, Blairgowrie, was lodged with the Registrar of the National Native Title Tribunal for registration on 30 November 2000.

The Native Title Act 1993 (Cth) provides that the Registrar must give notice of the agreement to any native title representative body for the area where the native title representative body is not a party to the agreement. Mirimbiak Nations Aboriginal Corporation is not a party to the above agreement. I therefore enclose a copy of the notice for your information.”

13                  On 10 May 2001, the then Principal Legal Officer of Mirimbiak, Mr Keon-Cohen QC, wrote to the first respondent’s case manager for the ILUA, Ms Newby, as follows (omitting formal parts):

“This office has not been previously advised, to the best of my knowledge, that this ILUA has been executed.

We advise that this office currently acts for some of the Boonerwrung native title claim group, which, for current purposes, may be called the “Tasmanian Group”. On behalf of those clients, we object to the registration of this ILUA, pending review of its contents in order to ascertain whether it affects our clients’ interests and if so, whether they wish to instruct us to take any action.

I should be grateful if you would therefore register the above objection of our clients, and forward to us a copy of the executed ILUA for our review.”

14                  I am content to adopt the expression “Tasmanian group” when referring to the people for whom Mirimbiak act, which includes Ms Murray.

15                  By letter dated 15 May 2001, Ms Newby, on behalf of the first respondent, advised the company’s solicitors and Ms Briggs of Mirimbiak’s objection to the registration of the ILUA. The letter advised the parties as to how they could “deal with this objection”. Three possible approaches were suggested as follows:

“1.       You can do nothing and rely on the information you have already provided to the Registrar

2.                  You can provide further information to the Registrar concerning s.24CG(3)(b), or any other response to the objection grounds, or

3.                  You can approach the objector with the aim of resolving the objection. In this case you can request Tribunal assistance in mediating an agreement about the objection.”

16                  On 15 May 2001, Ms Newby wrote to Mirimbiak in response to its letter of 10 May 2001. Inter alia, the letter said:

“It is our understanding, based on the application for registration and accompanying documents, that Mirimbiak were made aware of the intentions of the Boonerwrung People to enter into the agreement at a meeting held at Mirimbiak on 19 April 2000. At the time of deciding to notify the agreement the delegate was satisfied that this met the requirements of s.24CD(7) of the Native Title Act.”

17                 The letter went on to give some advice concerning “(p)rovisions by which people can oppose the registration of an uncertified Area Agreement”. It also declined to give Mirimbiak a copy of the ILUA on confidentiality grounds.

18                  By letter dated 22 May 2001, Mirimbiak requested that confidentiality in relation to the ILUA be waived to enable it to obtain instructions. The letter went on to make the following points:

·        The “Tasmanian group” are part of the claimant Boonerwrung group but have not seen, “let alone authorised”, the making of the ILUA.

·        The Boonerwrung People include groups other than the “Briggs” group.

·        The Tasmanian group are “descendants of Jane Foster, Elizabeth Maynard and ‘Marjorie’.

19                  By letter dated 9 July 2001, Ms Newby advised Mirimbiak and the parties to the ILUA of a process to deal with the objection to the registration of the ILUA. The Tribunal requested submissions from Mirimbiak and Ms Briggs in relation to the forthcoming decision as to whether the ILUA should be registered. Such submissions would be exchanged with Ms Briggs having a final right of reply. A timetable was proposed for the exchange of information. Solicitors for the company and a representative of Ms Briggs aired objections to the timetable and the process.

20                  On 18 July 2001, Ms Walsh was appointed as the delegate of the first respondent to make the decision under s 24CL of the Act whether or not to register the ILUA. On 8 August 2001, Ms Walsh wrote to Mirimbiak. Omitting formal parts, the letter was in the following terms:

“I have recently been appointed the delegate of the Registrar to make a registration decision for the Blairgowrie ILUA after the end of the notice period. The notice period ends on 16/8/01.

I have your letters to the Tribunal dated 10/5/01 and 22/5/01. The essence of the information contained in these letters is that you believe that current research supports that the descendants of Marjorie, Jane Foster and Elizabeth Maynard are Boonerwrung, but these people have not seen nor authorised the making of the ILUA. Genealogies of the three additional lines of descent of Boonerwrung people were provided to the Tribunal on a confidential basis on 23/2/01 (see reference to this information in the 22/5/01 letter).

The information contained in your three letters and attached genealogies is information that I must have regard to when making my decision (see s24CL(4)(b)). It amounts to an assertion by the recognised body for the ILUA area that there are other people who claim to be Boonerwrung who have not authorised the ILUA and may be relevant to whether I can be satisfied about the reasonableness of the efforts that were made to identify all potential native title holders for the Blairgowrie ILUA area (see s24CG(3)(b)(i)).

In the interests of procedural fairness, this information must be provided to Ms Briggs and she must be provided with an opportunity to respond to it.

The letters dated 10/5/01 and 22/5/01 have been provided to Ms Carolyn Briggs. However, Ms Carolyn Briggs has not been provided with the genealogies supplied to the Tribunal on 23/2/01, nor with the letter dated 23/2/01 that accompanied the genealogies. The letter dated 23/2/01 and the attached genealogies is information that Ms Briggs needs to consider and be provided with an opportunity to respond, prior to the forthcoming registration decision. I will have Ms Briggs sign a confidentiality agreement prior to release of the information to her. If she refuses to sign a confidentiality agreement, I will impose confidentiality conditions on her prior to release of the information.

I have also invited Ms Briggs to provide a response to this information that addresses:

·        the reasonableness of the efforts made to ensure that all persons who hold or may hold native title in relation to land or water in the area covered by the agreement have been identified; and

·        the assertion by Mirimbiak that there are other Boonerwrung who have not authorised the ILUA.

I note that the Tribunal wrote to you on 9/7/01 setting out a process for the confidential exchange of information and provision of procedural fairness to the parties. The Tribunal received an objection to that proposed process from Ms Briggs’ representative, the essence of which was that you need to satisfy me on a prima facie basis that you represent people who may have a native title interest as required by the Act before being entitled to procedural fairness.

I do not agree with this submission. It is my view that this may pre-empt the decision I will eventually be required to make in relation to whether or not the conditions in s24CG(3)(b) have been met. I do not accept that I am required, at this early stage, to reach a decision about whether the people that you represent are prima facie people who may be native title holders. I might be required to make findings about this when making my eventual decision but it is not something that I should decide before affording procedural fairness to parties that may be aggrieved by my decision to register the ILUA.

Your information requires me to establish a fair process for the exchange of information and opportunity to respond between the parties who may be aggrieved by my decision. The parties who may be aggrieved by my decision would appear to be those who claim to be Boonerwrung, bearing in mind that registration of the ILUA will bind all native title holders, whether they are parties to the agreement or not.

I am of the view that the appropriate process for exchange of information and response is set out below:

1.      I will provide Ms Briggs with your information (this will include the letter dated 23/2/01 and the attached genealogies, and any other relevant information that you have provided in the course of the s190A consideration of the Boonerwrung applications VG6005/98 and VG6025/98)

2.      Ms Briggs then has 14 days to respond to that information

3.   I will provide that response (and the authorisation information that accompanied the ILUA application) to you

4.   You and/or the people that you represent then have 14 days to respond

5.   I will provide the your/your client’s response to Ms Briggs

6.   Ms Briggs then has an opportunity to reply to your/your client’s response within 7 days.

The parties’ responses are to be written and may consist of submissions and/or additional information for my consideration in relation to the requirements of s24CG(3)(b). I will not provide either party with the other’s information unless I am provided with signed confidentiality agreements that bind the parties and the parties representatives. In the event that a party refuses to sign a confidentiality agreement, I will impose confidentiality conditions, prior to release of the information to that party. I will submit confidentiality agreements for signing by the parties as soon as possible. When confidentiality conditions have been signed or imposed, I will advise of firm dates for the provision of material/responses that follows the timeframes outlined above.”

21                  On 8 August 2001, Ms Walsh also wrote to Ms Briggs. The letter was in the following terms:

“I have recently been appointed the delegate of the Registrar to make a registration decision for the Blairgowrie ILUA after the end of the notice period. The notice period ends on 16/8/01.

I have received two letters from Mirimbiak Nations Aboriginal Corporation (Mirimbiak) dated 10/5/01 and 22/5/01 (“the Mirimbiak information”). I enclose copies of the letters.

The essence of the Mirimbiak information is that Mirimbiak believe that current research supports that the descendants of Marjorie, Jane Foster and Elizabeth Maynard are Boonerwrung, but these people have not seen nor authorised the making of the ILUA. Genealogies of the three additional lines of descent of Boonerwrung people were provided to the Tribunal on a confidential basis on 23/2/01 (see reference to this information in the 22/5/01 letter from Mirimbiak). I note that it does not appear that you have been provided with the genealogies supplied to the Tribunal on 23/2/01, nor with the Mirimbiak letter that accompanied the genealogies. This is information that you need to consider and be provided with an opportunity to respond, prior to the forthcoming registration decision.

It appears from the authorisation information that accompanied the application to register the Blairgowrie ILUA that:

·        the historical record supports that the ILUA area is located within the traditional country of the Boonerwrung People

·        the efforts that were made to identify potential native title holders involved efforts to identify the descendants of Louisa Briggs as the current members of the Boonerwrung People

·        the descendants of Louisa Briggs were involved in the authorisation process engaged in by the Boonerwrung for the Blairgowrie ILUA.

The assertion that there are other Boonerwrung (not descended from Louisa Briggs) who did not authorise the Blairgowrie ILUA may be relevant to whether I can be satisfied about the reasonableness of the efforts that you made to identify all potential native title holders for the ILUA area (see s24CG(3)(b)(i)). I therefore invite you to provide a response to the Mirimbiak information that addresses:

·        the reasonableness of the efforts you made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and

·        the assertion by Mirimbiak that there are other Boonerwrung who have not authorised the ILUA.

I note that Mr Steel has objected on your behalf to the Tribunal letter dated 9/7/01 setting out a process for the confidential exchange of information, and provision of procedural fairness to both you (and the people that you represent) and to the Mirimbiak clients. Mr Steel maintains that Mirimbiak need to show on a prima facie basis that they represent people who may have a native title interest as required by the Act before being entitled to procedural fairness.

I have considered this submission. However, I have formed the view that to engage in the alternative process suggested by Mr Steel pre-empts the decision that I will eventually be required to make in relation to whether or not the conditions in s24CG(3)(b) have been met. I do not accept that I am required, at this early stage, to reach a decision about whether the Mirimbiak clients are prima facie people who may be native title holders. I might be required to make findings about this when making my eventual decision but it is not something that I should decide before affording procedural fairness to parties that may be aggrieved by my decision to register the ILUA.

The Mirimbiak information comes from the recognised representative ATSI body for the area in which the ILUA is located. It is information that I must have regard to when making my decision (see s24CL(4)(b)). The Mirimbiak information is an assertion by the recognised body for the ILUA area that there are other people who claim to be Boonerwrung who have not authorised the ILUA. It appears from your own information that the ILUA area is located within what is recognised by the historical record as the traditional country of the Boonerwrung people (see Ian Clark language map and statements in your letter dated 1/2/01). I am of the view that the Mirimbiak information requires me to establish a fair process for the exchange of information and opportunity to respond between the parties who may be aggrieved by my decision. The parties who may be aggrieved by my decision would appear to be those who claim to be Boonerwrung, bearing in mind that registration of the ILUA will bind all native title holders, whether they are parties to the agreement or not.

I am of the view that the appropriate process for exchange of information and response is set out below:

1.      I will provide you with the Mirimbiak information (this will not only include the letter dated 23/2/01 and the attached genealogies, but any other relevant information that Mirimbiak has provided in the course of the s190A consideration of the Boonerwrung applications VG6005/98 and VG6025/98)

2.      You have 14 days following the sending to you of the Mirimbiak information to respond

3.      I will provide your response (and the authorisation information set out in attachment “A”) to Mirimbiak

4.      Mirimbiak/the Mirimbiak clients then have 14 days to respond

5.      I will provide the Mirimbiak/Mirimbiak client’s response to you

6.      You have an opportunity to reply to the Mirimbiak/Mirimbiak client’s response within 7 days.

The parties’ responses are to be written and may consist of submissions and/or additional information for my consideration in relation to the requirements of s24CG(3)(b). I will not provide either party with the other’s information unless I am provided with signed confidentiality agreements that bind the parties and the parties representatives. In the event that a party refuses to sign a confidentiality agreement, I will impose confidentiality conditions, prior to release of the information to that party. I will submit confidentiality agreements for signing by the parties as soon as possible. When confidentiality conditions have been signed or imposed, I will advise of firm dates for the provision of material/responses that follows the timeframes outlined above.”

22                  On 10 August 2001, Ms Newby wrote to Mirimbiak and asked, inter alia, the following:

“Could you confirm that your clients will provide information to the Delegate outlining why they believe the Victorian Boonerwrung did not make reasonable efforts to identify and seek authorisation of all people who may hold native title in the ILUA area…?”

23                  On 14 August 2002, Mirimbiak replied to Ms Newby, by way of facsimile, through Mr Keon-Cohen. Omitting formal parts, the facsimile transmission said:

“First, my clients instruct that their position has not changed: they continue to object to the registration of this ILUA. This objection is on the same basis as before: they have not sighted the document, and thus are unable to ascertain whether they agree with its terms or not. I cannot understand how this position can be considered unreasonable. Perhaps you might enlighten me and my clients.

Second, my clients do not believe that reasonable efforts have been made to seek their authorisation since no person from the Briggs family or the Tribunal has contacted them about this, nor shown to them the ILUA for which authorisation is sought.

Third, my clients object to the provision of their genealogical material to Ms Briggs, even given the confidentiality regime explained in Susan Walsh’s letter of 8 August 2001. The only basis upon which they are prepared to allow Ms Briggs to sight their genealogical material is if it is shown to her (and members of her family if she wishes) at the premises of the Tribunal; that no notes are taken; that such viewing is supervised by officers of the Tribunal; and that all Briggs genealogical material held by the Tribunal is shown to my clients under the same restrictions.

Further, my clients are happy to meet with the Briggs family at the Tribunal to seek to resolve all issues including sighting the ILUA and whether my clients then wish to remove their objection to its registration.

May I suggest a meeting to attempt to sensibly resolve this issue.”

24                  On 13 August 2001, Mr Larry Steel (on behalf of Ms Briggs) sent an email to Ms Newby, in which Mr Steel made “comments” on a “without prejudice” basis. Those comments were argumentative in nature and were in support of the registration of the ILUA. The email was forwarded by Ms Newby to Ms Walsh with the additional comment that:

“I think it would be very valuable if you could talk Larry through the kind of things he needs to include in his submissions and in what format.”

25                  On 15 August 2001, Ms Walsh replied by email to Ms Newby as follows:

“I have read the Email from Larry below. We need to make the point to Larry that it is counter-productive for him to focus on what Mirimbiak has or has not done to establish the credentials of the Tasmanians. He needs to focus on this: the information he has provided to date may not be enough to get them over the line under s24CG(3). I am not going to be able to make an informed decision because Larry tells me that reasonable efforts were made – I need a first hand account that describes the effects made. I am not sure that the information provided to date is sufficiently detailed. I think I have outlined in my first email today the sorts of things that Larry needs to concentrate on if they decide to provide further information.”

26                  Ms Walsh then proceeded to make comments on the points raised by Mr Steel.

27                  By letter dated 17 August 2001, Ms Newby wrote to Ms Briggs, marked to Mr Steel’s attention. The letter was headed, ‘Further information required in submissions an authorisation of ILUA VIA00/4’ and stated:

“To assist you in preparing your submissions regarding the authorisation process undertaken by your group in relation to the Blairgowrie ILUA, I am providing you with copies of the material that the Tribunal is currently relying on. I will also summarise the areas that the delegate believes you need to focus on, to ensure that she has all the necessary information before her when making her decision in relation to registration of the ILUA. The areas outlined below are a guide only, and you may also wish to include other information you consider to be relevant to the issue of identification of native title holders and authorisation of the ILUA. I am aware that you may have already relayed some of this information to Tribunal staff, either over the telephone or in person. However, we now need you to provide the information outlined below to the delegate in one clear and complete written submission, which may be in the form of a letter, that can then be provided to the delegate for her consideration.

Please note that the contents of this letter do not constitute legal advice in any form. You should not rely on this letter in place of obtaining independent legal advice, and you should contact a lawyer if you think that you require legal advice.

In your submissions to the delegate, you should address:

·        What steps were taken to identify all Boonerwrung people when the native title group was initially being formed? We are aware that you may not have access to documents relating to this time as Mirimbiak holds them. Please provide the delegate as much detail as possible on the process undertaken. For example, you have mentioned that advertisements were placed. To whom were they addressed, what information did they contain, and how were they circulated? What other steps were taken (for example, meetings and other discussions)?

·        One of the criteria for membership of the Boonerwrung native title group, as defined by your group, as the Tribunal currently understands it, is being a descendant of Louisa Briggs. When was the decision made that Louisa was the only apical ancestor from which current Boonerwrung people would claim descent from? On what basis was this decision made, and what was the process by which this decision was made (for example, traditional law and custom, group meetings, voting, etc)?

·        Are there any further criteria for membership in the Boonerwrung native title group (for example, traditional law and custom, connection to country, exercise of particular rites or ceremonies)? If this is based on the Native Title Act please explain this to the delegate.

·        When and how did you become aware of the Tasmanian group and their assertions that they are Boonerwrung? What steps did you (or any other people) take to determine whether or not they may be part of your native title group? For example, have you met or corresponded with any of them (if this is the case, it would be helpful to have any copies of any letters that were sent)? Did you or any other person in your group o Mirimbiak to substantiate their claims to be Boonerwrung? If so, when did this happen, and what (if any) was the response to these requests?

·        What are the criteria that the Tasmanian group would have to meet to satisfy your group that they should be included in it? Why doesn’t your group accept that the Tasmanian group are part of the Boonerwrung people?

·        In regard to the Blairgowrie ILUA, when, how, in what manner and to what extent did you inform Mirimbiak of the proposal to enter into the ILUA (for example, meetings, conversations, letters)?

·        Did you speak to any of the Tasmanian group about the ILUA proposal? If yes, then please provide us with as much detail as possible of your conversations (for example, when and where the discussions took place, the outcome, etc). If not, why not?

·        Is there anything you’d like to add to what you’ve already told us about your group’s decision making and authorisation process when (keeping in mind that this will be provided to Mirimbiak)? Please bear in mind that, in deciding whether or not the Blairgowrie ILUA should be registered, the delegate must be satisfied that in the lead up to the signing of the ILUA:

All reasonable efforts have been made (including by consulting Mirimbiak) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement:

1.      have been identified; and

2.      that all of the persons who have been so identified have authorised the making of the agreement (see s24CG(3)(b) Native Title Act 1993 (Cth)).

·        If you have any documents, in relation to any of the points above, which support what you say in your submissions, please provide copies of these documents to the delegate.

Please note that you will need to provide the delegate with submissions in relation to the process for identification of native title holders and authorisation of the ILUA regardless of whether or not you agree to a meeting with Mirimbiak, and agree to view the material rather than exchange copies of the material, (as outlined to you in my other letter sent today). However, you may wish to delay providing your submissions to the delegate in relation to the authorisation process until after viewing or receiving the information provide by Mirimbiak to the Tribunal.”

28                  In a further letter to Mr Steel, also dated 17 August 2001, Ms Newby referred to Mirimbiak’s proposal, contained in its letter of 10 August 2001, to meet with a view to resolving outstanding issues. The letter revisited the issue of compliance with the Act and in that respect said:

“Regardless of whether your group decides to participate in this process, the ILUA Delegate has asked me to emphasise that you will still need to provide her with additional material regarding the authorisation process undertaken by the Boonerwrung group in agreeing to the ILUA, as I have outlined in a separate letter of today’s date. This is because, even if the Tasmanian group decides to withdraw their objection, it is still open to the delegate to decide not to register the agreement if she feels that the authorisation process was inadequate and does not comply with the requirements of section 24CG(3)(b) Native Title Act 1993 (Cth). However, you may wish to delay providing your submissions to the delegate in relation to the authorisation process until after viewing or receiving the information provided by Mirimbiak to the Tribunal.”

29                  On 16 October 2001, Mirimbiak sent its submissions in opposition to the registration of the ILUA to Ms Newby.

30                  By letter dated 28 October 2001, Mr Steel provided the National Native Title Tribunal (“Tribunal”) with submissions in support of registration of the ILUA. The submission was said to be “(i)n response to the matters raised in the various correspondence from the [Tribunal].”

31                  Ms Newby advised Mirimbiak, the company, and Ms Briggs by letter dated 21 December 2001 that the ILUA was registered on that day.

The legislative framework

32                  Division 3 of Pt 2 of the Act deals with “future acts”. One of the “future acts” envisaged by the Act is that contained in sub-div C, Div 3, Pt 2. Sub-division C is entitled “Indigenous land use agreements (area agreements)”.

33                  Section 24CD of the Act deals with the identity of parties to area agreements, providing as follows:

“Native title group to be parties

(1)  All persons in the native title group (see subsection (2) or (3)) in relation to the area must be parties to the agreement.

Native title group where registered claimant or body corporate

(2)   If there is a registered native title claimant, or a registered native title body corporate, in relation to any of the land or waters in the area, the native title group consists of:

(a)   all registered native title claimants in relation to land or waters in the area; and

(b)   all registered native title bodies corporate in relation to land or waters in the area; and

(c)   if, for any part (the non-claimed/determined part) of the land or waters in the area, there is neither a registered native title claimant nor a registered native title body corporate – one or more of the following:

(i)                 any person who claims to hold native title in relation to land or waters in the non-claimed/determined part;

(ii)               any representative Aboriginal/Torres Strait Islander body for the non-claimed/determined part.

Native title group where no registered claimant or body corporate

(3)   If subsection (2) does not apply, the native title group consists of one or more of the following:

(a)   any person who claims to hold native title in relation to land or waters in the area;

(b)   any representative Aboriginal/Torres Strait Islander body for the area.

Other native title parties

(4)   If the native title group is covered by subsection (2), one or more of the following may also be parties to the agreement:

(a)   any other person who claims to hold native title in relation to land or waters in the area;

(b)   any representative Aboriginal/Torres Strait Islander body for the area.

Government parties

(5)   If the agreement makes provision for the extinguishment of native title rights and interests by surrendering them to the Commonwealth, a State or Territory as mentioned in paragraph 24CB(e), the Commonwealth, State or Territory must be a party to the agreement. If the agreement does not make such provision, the Commonwealth, a State or a Territory may still be a party.

Other parties

(6)   Any other person may be a party to the agreement.

Procedure where no representative body party

(7)   If there are any representative Aboriginal/Torres Strait Islander bodies for any of the area and none of them is proposed to be a party to the agreement, a person in the native title group, before entering into the agreement:

(a)   must inform at least one of the representative Aboriginal/Torres Islander bodies of its intention to enter into the agreement; and

(b)   may consult any such representative Aboriginal/Torres Strait Islander bodies about the agreement.”

34                  Section 24CG is entitled “Application for registration of area agreements.” It provides:

“Application

(1)   Any party to the agreement may, if all of the other parties agree, apply in writing to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements.

Things accompanying application

(2)   The application must be accompanied by a copy of the agreement and any other prescribed documents or information.

Certificate or statement to accompany application in certain cases

(3)   Also, the application must either:

(a)   have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area in performing their functions under paragraph 203BE(1)(b) in relation to the area; or

(b)   include a statement to the effect that the following requirements have been met:

(i)                 all reasonable efforts have been made (including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified;

(ii)               all of the persons so identified have authorised the making of the agreement;”

together with a further statement briefly setting out the grounds on which the Registrar should be satisfied that the requirements are met.”

35                  A process of authorisation for the making of indigenous land use agreements is provided in s 251A of the Act. Section 251A states that:

“For the purposes of this Act, persons holding native title in relation to land or waters in the area covered by an indigenous land use agreement authorisethe making of the agreement if:

(a)               where there is a process of decision-making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind – the persons authorise the making of the agreement in accordance with that process; or

(b)               where there is no such process – the persons authorise the making of the agreement in accordance with a process of decision-making agreed to and adopted, by the persons who hold or may hold the common or group rights comprising the native title, in relation to authorising the making of the agreement or of things of that kind.”

36                  Section 24CL is entitled “Registration of area agreements not certified by representative Aboriginal/Torres Strait Islander bodies” and provides:

“Registration only if conditions satisfied

(1)   If the application for registration of the agreement contained a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement), and the conditions in subsections (2) and (3) of this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement.

First condition

(2)   The first condition is that the following persons are parties to the agreement:

(a)  any person who is, at the end of the notice period, a registered native title claimant or a registered native title body corporate in relation to any of the land or waters in the area covered by the agreement; and

(b)  any person who, after the end of the notice period, becomes a registered native title claimant in relation to any of the land or waters in the area covered by the agreement, where the application containing the claim was made before the end of the notice period and:

(i)                 the claim is accepted by the Registrar for registration under subsection 190A(6) or is (otherwise than on appeal or review) found to satisfy conditions equivalent to those set out in sections 190B and 190C under a law of a State or Territory; or

(ii)               the claim is accepted by the Registrar for registration as a result of an application under subsection 190D(2), where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

(iii)             the claim is found to satisfy conditions equivalent to those set out in sections 190B and 190C under a provision of a law of a State or Territory to similar effect as section 190D, and the application under that provision was made within a time period corresponding to that set out in subparagraph (ii) of this paragraph.

Second condition

(3)   The second condition is that the Registrar considers that the requirements in paragraph 24CG(3)(b) (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement) have been met.

Matters to be taken into account

(4)   In deciding whether the requirements have been met, the Registrar must take into account:

(a)   the statements in the application; and

(b)   any information the Registrar is given on the matter by any representative Aboriginal/Torres Strait Islander body or by any other body or person;

and may, but need not, take into account any other matter or thing.”

37                  Section 203AD of the Act provides for a process of recognition, by the relevant Commonwealth Minister, of representative bodies for specified areas. Under s 203FE, the Aboriginal and Torres Strait Islands Commission (“ATSIC”) may make grants of money to a body to enable it to perform the functions of a representative body in an area where there is no representative body.

Compliance with s 24CD(1)

38                  Counsel for Ms Murray submitted that the ILUA should not have been registered because it did not comply with s 24CD(1) in that “all persons in the native title group” were not parties to it. It was common ground that s 24CD(2) did not apply and at the relevant time there was no representative Aboriginal/Torres Strait Islander body for the area. Under s 24CD(3) the native title group relevantly consisted of “any person who claims to hold native title in relation to land or waters in the area”.

39                  Counsel for Ms Murray submitted that their client is part of the native title group, being a person who claims to hold native title in relation to the land and water in the area covered by the ILUA, but is not a party to the agreement.

40                  At paragraphs 9 and 10 of the decision of Ms Walsh, the following is recorded:

“9.       I find that the provisions of s24CD are satisfied in relation to mandatory native title parties, if at least one person claiming to hold native title in relation to the area or one representative A/TSI body is a party. In this case the agreement is between Carolyn Briggs on behalf of the Boonerwrung People and Blairgowrie Safe Boat Harbour Limited (“Blairgowrie”).

10.       …I am satisfied that Carolyn Briggs is a person claiming to hold native title in relation to the area covered by the agreement, and therefore the requirements relating to mandatory native title parties in s24CD are therefore met.”

41                  Counsel for Ms Murray said that Ms Walsh’s view is inconsistent with s 24CD(1) of the Act, which they said, required all persons who claimed to hold native title in the area to be a party to the agreement. It was contended that “all persons” in that context should be read to mean “all those who are reasonably available and who are competent to express an opinion”; see De Rose v South Australia [2002] FCA 1342 at [928] per O’Loughlin J.

42                  Counsel for Ms Murray referred to the provisions of s 24CG(3)(b) as reinforcing the need to ensure that all persons who hold or may hold native title are identified as a matter of objective fact. There must be, so the argument ran, identification of all the persons required to authorise the agreement and those persons must all be parties to the agreement.

43                  Counsel for Ms Briggs submitted that s 24CD performed a different function from s 24CG. Counsel reiterated what was said to be the purpose of registration of indigenous land use agreements, that is, “to enable persons who claim to hold native title to promote agreements with, for example, persons who propose to develop land in respect of which a native title claim might thereafter be made”.

44                  Counsel for Ms Briggs contended that s 24CD(3) enables “any one person who claims to hold native title to begin the process and carry forward the process of negotiating an ILUA with respect to the subject land”. Counsel submitted that “s 24CD does not have the effect of requiring all persons who might claim to be native title holders with respect to the land to be parties”. Section 24CD(3), so the argument ran, focuses on any one of those persons who might (absent the application of s 24CD(2)) be competent to promote an indigenous land use agreement. Counsel for the company supported the submissions made on behalf of Ms Briggs.

45                  In my view, the construction of s 24CD favoured by counsel for Ms Briggs is the preferable construction. The use of the words “all persons” in s 24CD(1) is understandable given that s 24CD(2), if applicable, will encompass a range of known and readily identifiable persons or bodies. In s 24CD(3), “native title group” has a special defined meaning, conferring party status on any single person or body of the kind described.

46                  The above analysis is supported by the explanatory memorandum to the Native Title Amendment Bill 1997 which, insofar as is presently material, provides as follows:

“Terms used in provisions dealing with requirements for ILUAs

…

What is a native title group for the purposes of an area agreement?

7.14          The parties to ILUAs in the area agreement category must include the native title group…. The make-up of the native title group depends on whether there is a registered native title claimant or a registered native title body corporate in relation to any of the land or waters in the area covered by the agreement. If there is, then:

·        the native title group is all registered native title claimants, and all registered native title bodies corporate, in relation to the land or waters [subsection 24CD(2)]; and

·        the parties to the agreement may also, but need not, include any other person who claims to hold native title in relation to land or waters in the area covered by the agreement and any representative Aboriginal/Torres Strait Islander body for the area[subsection 24CD(4)].

7.15     If there are not any registered native title claimants or registered native title bodies corporate in relation to land or waters in the area, the native title group is any person who claims to hold native title in relation to land or waters in the area covered by the agreement and/or any representative Aboriginal/Torres Strait Islander body for the area. [subsection 24CD(3)]”

47                  In my opinion, Ms Walsh was correct to determine that the provisions of s 24CD had been satisfied with respect to the ILUA by the fact that Ms Briggs was a party to the agreement.

48                  I accept the submission of counsel for Ms Briggs that s 24CG(3) is relevant to the application for registration of the agreement, and not to the identity of the parties to the agreement. The application for registration must include - absent the materiality of s 24CG(3)(a) - a statement that all reasonable efforts have been made to ensure that all persons who hold or may hold native title, in relation to the land or water concerned, have been identified and have authorised the making of the agreement. The section does not say that such persons, if they exist, must be parties to the agreement. A process for authorisation is contained in s 251A.

49                  I am fortified in my conclusion by the potential difficulties that would be placed in the path of registering indigenous land use agreements if every single person who may hold native title in a particular area was required to be a party to such an agreement. I am satisfied that s 24CG(3)(b), when read in conjunction with s 24CL, sufficiently protects the rights and interests of any such persons who may not be parties to the agreement.

The notification point

50                  In the written submissions filed on behalf of Ms Murray, it was contended that no communication was made to Mirimbiak of Ms Briggs’ intention to enter into the ILUA. Accordingly, it was contended that s 24CD(7) was not satisfied.

51                  It was further submitted that Ms Walsh based her decision on a fact which did not exist. That fact was alleged to be that Ms Briggs had notified Mirimbiak on 19 April 2000 of her intention to enter into the ILUA.

52                  The ILUA was entered into on or about 21 September 2000. From 1 July 2000 until 22 December 2000, Mirimbiak was not a representative body under the Act, although it was in receipt of a grant of assistance in accordance with s 203FE.

53                  The receipt of funding under s 203FE cannot convert a body into something that the Minister had decided that it should not be. In my opinion, s 24CD(7) did not operate, immediately prior to the entering into of the agreement, to require that any representative body be informed about the agreement and consulted about its contents.

54                  If I am in error as to the above view, I consider that there is an alternative basis upon which the submission based on the “no-evidence ground” should be rejected. That alternative basis is that there is no indication in the Act that a failure to comply with s 24CD(7) has the consequence that invalidity of the agreement should flow from such non-compliance; see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93], per McHugh, Gummow, Kirby and Hayne JJ.

55                  It is unnecessary to resolve any remaining unresolved factual issues on the question whether Mirimbiak was actually informed about the proposed agreement in April 2000.

Reasonable Apprehension of Bias

56                  At paragraph 9 of the amended application, which was filed on 24 September 2002 pursuant to leave granted on 9 September 2002, the following is alleged:

“There was a further breach of the rules of procedural fairness in the making of the decision in that a reasonable bystander would have entertained a reasonable fear that the decision maker was incapable of bringing an unprejudiced mind to the decision.”

 

57                  Ms Murray’s outline of argument was filed on 9 August 2002. It contained no reference to any submission about bias in the sense described at paragraph 9 of the amended application.

58                  In oral submissions, counsel for Ms Murray submitted that:

“there is a reasonable apprehension that the first respondent behaved or displayed … a remarkably proactive approach to the decision making required in this case.”

 

59                  At paragraphs 19 and 20 of Ms Murray’s written outline of argument in reply, the following is said:

“19.     The ILUA, authorisation materials and files of the First Respondent, …give rise to a reasonable apprehension that the First Respondent was biased in making the decision.

20.       In particular, the authorisation materials and the files of the First Respondent disclose that the First Respondent, rather than acting impartially in making the decision, disclosed a willingness to assist the Third Respondent in facilitating the registration of the agreement and to actively seek further material in order to justify that result. No similar consideration was provided to the Applicants.”

 

60                  In support of the above contention, reliance was placed on certain documents which were in evidence in the proceeding. The first such document was a copy of a draft letter from Ms Briggs to the Tribunal dated 1 February 2001, with draft alterations by an officer of the Tribunal to apparently assist in the re-drafting of a letter. The letter was designed to confirm the native title owner status of the land and water covered by the ILUA. It did not impact upon any dispute with Ms Murray or the Tasmanian group.

61                  The second document referred to was an internal Tribunal memorandum dated 20 March 2001. That memorandum is completely unrelated to any issue arising in this case. It concerned an application relating to a Wilsons Promontory claim.

62                  The third document is an internal email by a Ms D’Souza of the Tribunal to Ms Newby, dated 12 June 2001, which raises concerns about compliance with s 24CG(3) in respect of the ILUA. It is exceedingly difficult to see how the email can support any allegation that there was a reasonable apprehension that Ms Walsh was biased in her decision to register the ILUA.

63                  The fourth document is another internal Tribunal email, from Ms Newby to Ms D’Souza, which contains the following paragraph:

“I think the real issue is that the Tas Boonerwrung perhaps do need to be acknowledged as Boonerwrung descendants by the Vics and included in their claim, perhaps with lesser rights to acknowledge the historical loss of connection. As I have said on the phone I feel this is unlikely to happen due to the acrimonious and highly legal relationship that has developed between the rep body/Tas people and the Vic people.”

 

64                  Counsel for Ms Murray also relied on the next paragraph of the email which states:

“So, I guess you could say the Vics were aware the Tas may be native title holders as they were certainly aware of their claim to be, and so should have gained their authorisation for the ILUA. However, I am not comfortable with the power relationship this puts on ILUAs. It means that the ILUA process is forcing an established NTG to accept other people based on their simply making a claim rather than on the NTG’s own processes of accepting who are and who are not traditional owners and why.”

 

65                  I fail to see how the internal ramblings of people working in the Tribunal, not including the decision maker, provide any reasonable apprehension that the decision maker herself may have been biased in deciding to register the ILUA.

66                  Counsel for Ms Murray referred to another internal memorandum of Ms D’Souza of 27 June 2001. It is alleged to show that the Tribunal was assisting Ms Briggs to provide more material about “the identification and authorisation process”. Reference was also made to that part of Ms Walsh’s email to Ms Newby of 15 August 2001, which details what further information Mr Steel needed to provide in support of the registration application; see [25] above.

67                  I disagree with the view that a reasonable person would conclude that Ms Walsh did not bring an impartial mind to bear on the issues before her. The reasonable person, so called, should be considered to be a reasonably informed person; see Hot Holdings Pty Ltd v Creasy [2002] HCA 51 at [68] per McHugh J. A reasonably informed person would realise that the Tribunal is entitled to request further information from any applicant for registration, if it is not satisfied with the material with which it has been provided. As counsel for Ms Briggs submitted, the Tribunal is not a court - its processes are less formal and it is entitled to be more interventionist. Indeed, s 24CI of the Act allows the Tribunal to assist the parties to an agreement in negotiating with an objector to registration of the agreement; see also s 24CF in the context of negotiation of agreements.

68                  Ms Murray has also, under the heading of reasonable apprehension of bias, referred to certain alleged inconsistencies in the decision of Ms Walsh. Under the same heading, Ms Murray has alleged that the Tribunal’s refusal to provide Ms Murray with a copy of the ILUA, discloses partiality towards Ms Briggs. This material falls far short of disclosing a reasonable apprehension of bias on the part of Ms Walsh. The Tribunal submitted cogent reasons relating to confidentiality as to why the ILUA would not be made public. However, the failure to provide a copy of it to Mirimbiak does not bear upon the decision to register it.

69                  I reject each basis submitted in support of the allegation of a reasonable apprehension of bias on the part of Ms Walsh. I accept the submission of counsel for Ms Briggs that the reasons for the decision to register the ILUA are long and deliberative and carefully set out the grounds upon which the delegate acted to register the ILUA.

Errors of law

70                  Other submissions were made in writing by Ms Murray, but were not pressed orally, unless they were made obliquely without being expressly withdrawn. They concerned alleged errors of law. Out of completeness, I feel compelled to address them.

71                  The first submission is that an error of law was made because Ms Walsh relied upon the subjective opinion of Ms Briggs concerning whether members of the Tasmanian group were potential native title holders. The critical question on this point related to compliance with s 24CG(3)(b).

72                  I agree with counsel for Ms Briggs that Ms Walsh’s decision showed that she reached a considered view that Ms Briggs had made all reasonable efforts to ensure that all persons who may hold native title in relation to the relevant area covered by the ILUA, had been identified. Ms Walsh dealt with this issue comprehensively at paragraphs 65 to 75 of her decision. Ultimately she found that (at paragraph 71):

“ I am of the view that the opinion formed by the Boonerwrung, prior to entering into the agreement in September 2000, that the Tasmanian people were not Boonerwrung was reasonable, having regard to:

·        the lack of production of credible evidence between November 1999 and the making of the agreement some 10 months later, that showed that the Tasmanian group were genealogically connected to a Boonerwrung ancestor and currently connected to Boonerwrung country, including the agreement area,

·        the fact that their own inquiries revealed that the group were from Tasmania and associated with and connected to Tasmanian Aboriginal groups.”

73                  The next related alleged legal error is that Ms Walsh did not determine the issues for herself but relied upon subjective and unsupported statements of Ms Briggs. That submission is rejected.  The reasons for decision do not support it.  Ms Walsh was entitled to act upon information provided to her and either accept or reject it as appropriate whilst exercising her discretion in a proper way and/or making appropriate findings of jurisdictional fact.

74                  The next question raised by Ms Murray’s written submissions concerned whether Ms Walsh erred by imposing a requirement upon the members of the Tasmanian group to make out a prima facie case that they may hold native title.  At paragraph 74 of her reasons for decision, Ms Walsh said that:

“I do not think that s24CG(3), in requiring that all reasonable efforts be made to ensure that all persons who may hold native title are identified, can be said to impose an obligation on a group of people to accept other people, just because these people claim to be the holders of native title.  I am of the view that the terminology “all persons who may hold native title” refers to persons who at least are able to make out a prima facie case that they hold native title, within the meaning of s223.”

75                  In the written submissions filed on behalf of Ms Briggs, it is submitted that the approach of Ms Walsh involved no error of law.  In particular, it is contended that the delegate did not mis-state the test under s 24CG(3)(b), but rather observed that a person should not necessarily be regarded as someone who may hold native title simply because they say they do so hold native title. I accept that submission. I see no error in the approach taken by Ms Walsh as to the proper meaning of s 24CG(3)(b).

76                  It was further contended by Ms Murray that Ms Walsh erred by relying on material in support of registration which referred to efforts made to determine the status of the Tasmanian group after the agreement was entered into. I consider that Ms Briggs’ written submissions at paragraphs 23 and 24 thereof, comprehensively answer that submission and I agree with the contentions made therein as follows:

“23.     … the Applicants submit that the delegate incorrectly applied section 24CG(3)(b) by examining inquiries made after the date of entry into the agreement, rather than inquiries made before that date (ground 5(b), paragraph 25 of the Outline).  However, the delegate found that it was reasonable to conclude, before the date of entry into the agreement, that the Applicants were not part of the Boonerwrung native title group:  see statement of reasons (exhibit SGW-34), paragraphs 67, 69-71, 75-76.  That conclusion was reached after an extensive analysis of the efforts made before the agreement was entered into (see eg paragraphs 41-49 of exhibit SGW-34), as well as the efforts made after that event.  The examination of the delegate was not confined to efforts made after that event as alleged by the Applicants.  The delegate’s examination of information obtained after September 2000 was in order to confirm that it made no difference to the result:  see paragraphs 77-93.  This submission of the Applicants, as with other submissions in the Outline, is ultimately merely an attack on the delegate’s finding of fact on this question.

24.       It should be noted that the thrust of the decision was that, by the date of entry into the agreement, the representatives of the native title group (that is, the Third Respondent) had determined that the Applicants were not people who ‘may hold native title in relation to land or waters in the area covered by the agreement’ within the meaning of section 24CG(3)(b).  Accordingly, there was no obligation to have the Applicants authorize the making of the agreement.  The finding of the delegate was that the conclusion of the Third Respondent to this effect was reasonable.  This was the central issue in the matter before the delegate and it is primarily an issue of fact.  She independently made this crucial finding herself and the merits of that finding cannot be attacked in these judicial review proceedings.  That finding does not, in the end, depend on any view as to the proper interpretation of section 24CG(3)(b). It is simply a finding of fact regarding the reasonableness of the steps taken and the view formed by the Third Respondent.”

Procedural Fairness

77                  Ms Murray submitted that the members of the Tasmanian group were denied procedural fairness because they were not shown the agreement.  There was no obligation on the Tribunal to show Ms Murray the agreement. The matters to be included in a notice of the agreement in accordance with s 24CH(2) do not include the agreement itself.  In any event, no material disadvantage to Ms Murray has been demonstrated by the late provision to her of the agreement. 

78                  Ms Murray also argued that she was denied procedural fairness by not being provided with “authorisation material”, such material having been given to the Tribunal by Ms Briggs.  This material has now been given to the Tasmanian group and Ms Murray was entitled to make whatever submissions she wished about any alleged deficiency in that material.  If there is any deficiency in the material, it has not been highlighted.

79                  I accept the submission of Ms Briggs, at paragraph 29 of her written contentions, that procedural fairness was not denied in the context of the authorisation materials.  I agree that Ms Walsh “followed an elaborate regime to ensure the confidentiality of the relevant material”.  I also consider that Ms Murray was “provided with all materials critical to the making of the decision” and that she “had a full opportunity to make (any relevant) submissions … ”.

80                  Further, Ms Murray contended that she was afforded no opportunity to respond to Mr Steel’s letter to Ms Walsh of 29 October 2001, which dealt withmaterial raised by Ms Murray on historical and anthropological issues.  It was not contended that Ms Walsh was bound to seek a response to what was, in essence, material by way of reply. This ground is without foundation.

81                  Other allegations were raised by Ms Murray concerning a lack of notice of other matters relating to the accuracy of the minutes of meeting between the Tasmanian Group and Ms Briggs.  Those issues were matters of fact for the Tribunal to accept or reject.  The allegations seek in essence, a review of the merits of the decision to register the ILUA rather than judicial review on properly based questions of law.

Irrelevant Considerations

82                  Ms Murray referred to an article which was relied upon by Ms Briggs in the Wilsons Promontory claim; see [61] above.  It seems to be contended that the delegate erred by referring to the article concerned.  I say, “it seems”, because this submission is not clearly advanced in writing and is a little difficult to understand.  Further, the submission was not developed orally. 

83                  In the absence of any lucid explanation of this ground by Ms Murray, I accept the submission of Ms Briggs that “these matters do not raise for consideration the taking into account of any irrelevant consideration”.

Relevant considerations

84                  In her written submissions, Ms Murray relied on a fraction of the matters raised under this heading in her amended application.  Those written submissions say the following at paragraphs 45 to 47 thereof:

“45. While the Third Respondent provided no expert evidence to justify her position, the Applicants provided two separate reports that supported their contention that they were persons who may hold native title in the area of the ILUA.  The Respondent erred in law in discounting the oral histories of the Applicants that provided some of the base material for these two reports.

46.  In paragraph 75 of the reasons the First Respondent states that Elizabeth Maynard had not previously been identified as a Boonerwrung ancestor.  This is incorrect.  The Barwick article, provided to the First Respondent by the Third Respondent and relied upon by the First Respondent, refers to her by name as:

Nan-der-gor-oke (Elizabeth Maynard) … among the few survivors of the Woiwurung and Bunurong clans who from time immemorial held the land from the headwaters of the Yarra River to the sea, the site of the city of Melbourne.

47.This paragraph also refers to Marjorie, grandmother of Louisa Briggs and ancestor of some of the Applicants, as one of these survivors.”

In response, at paragraph 38 of Ms Briggs’ submission, the following is said:

“38.     The Applicants set out five relevant considerations which it is contended the delegate failed to take into account (ground 9 of the Application, ground 11 of the amended document).  The Outline addresses only some of these matters (paragraphs 45-47).  It is apparent that the Applicants seek to contest findings regarding the holding of native title in the area covered by the agreement.  The Applicants have not identified considerations relevant to the making of the decision which the delegate was required to but did not take into account.  Instead, they have attacked factual aspects of the decision.  Again, if the proceeding involved merits review the Third Respondent would engage in that debate.  However, challenges to factual findings are inappropriate in the context of judicial review.  The material advanced by the Applicants fails to make out this ground of review.”

85                  I find those submissions to be persuasive. Ms Murray has not identified any considerations which were relevant to the issue before Ms Walsh, which Ms Walsh was bound to take into account and failed to take into account; see the observations of the Full Court in Luu v Minister for Immigration & Multicultural Affairs [2002] FCAFC 369 at [91], where in relation to the ground of failure to consider relevant considerations, the Full Court said:

“It is of course clear that this ground of appeal can succeed only if the appellant established that there were matters which the respondent was required by the relevant provisions to consider and which he did not consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; Minister for Immigration & Multicultural Affairs v Yusuf [2001 HCA 30 at [73]; (2001) 180 ALR 1.”

86                  Again this ground appears to be a disguised attempt to have the Court engage in merits review.

Reasonableness

87                  Ms Murray submitted that Ms Walsh’s decision was so unreasonable that no reasonable decision maker could have so decided to register the ILUA.  Her complaint in that regard stemmed from Ms Walsh’s acceptance of certain assertions made by Ms Briggs and her failure to accept an assertion made by a member of the Tasmanian group.  In addition, reference was made to an article which, it is alleged, was selectively relied upon by the delegate.  None of this material goes anywhere near establishing that Ms Walsh’s decision was so unreasonable that no reasonable tribunal decision maker would have made it. 

88                  Again, I consider that this ground is a disguised attempt to seek merits review.  The fact that another decision maker may not have reached the same view as Ms Walsh, or that the issues for her consideration raised matters upon which reasonable minds might differ, is not sufficient to make out the ground of unreasonableness; see Luu at [56] to [57].

The Constitutional issue

89                  Counsel for Ms Murray submitted that the decision of Ms Walsh was beyond the jurisdiction of the Tribunal because Ms Walsh purported to exercise judicial power in the course of exercising her administrative function.  It was not contended that s 24CL confers judicial power on the first respondent, rather it was alleged that Ms Walsh purported to exercise judicial power in the process of making her decision to register the ILUA.  The manner of the exercise of the power conferred on Ms Walsh, it was submitted, “purported to be judicial”.

90                  On 22 November 2002, notices under s 78B of the Judiciary Act 1903 (Cth) were sent to each relevant Attorney General.  The notice states as follows:

“The constitutional issue which is said to arise is whether, by virtue of Chapter III of the Constitution, the Registrar of the National Native Title Tribunal is precluded from registering an Indigenous Land Use Agreement (within the meaning of s 24BA of the Native Title Act 1993) where persons not party to that agreement, but who may hold native title affected by the agreement, do not consent to such registration.”

91                  Counsel for Ms Murray submitted that Ms Walsh was satisfied that the requirements of s 24CG(3)(b) were met with respect to the ILUA and, in so doing, formed the view that the members of the Tasmanian group were not persons who may relevantly hold native title.  It was contended that the delegate made a finding to that effect.  Counsel stressed that questions of who may hold native title are matters reserved for this Court pursuant to the Act, rather than the Tribunal. In that regard they referred to s 81.

92                  Counsel further submitted that unless the decision subject to challenge in this proceeding is set aside it is binding, authoritative and enforceable.  However, counsel conceded that the decision does not bar the Tasmanian group from making a claim for native title over the area covered by the ILUA.  It was put that, nevertheless, any successful native title claim would be subject to the ILUA.  That in turn begs the question whether the Tasmanian group may be encompassed by the ILUA if they are indeed Boonerwrung people, as they claim.

93                  In written submissions filed on behalf of Ms Murray on 17 December 2002, it was stated that the effect of Ms Walsh’s decision is “to validate the claim of the [Ms Briggs] to be a native title holder and dismiss the claim of [Ms Murray]”. Thereby, it was contended that the decision determined pre-existing rights and was, in substance, a judicial decision. The written submissions further stated that the “practical effect of the decision is that [Ms Briggs] can use the registration of this ILUA as a bargaining tool in negotiations with other parties who may wish to carry out future acts in Boonerwrung country”.

94                  In my opinion, the so-called “constitutional issue” does not truly arise in the circumstances of this proceeding.  In the course of making her decision to register the ILUA, Ms Walsh has expressed a view about the status of the Tasmanian group.  That view was expressed having regard to the evidence before her.  The decision does not operate in any authoritative or binding way, nor does it create any issue estoppel in respect of what the Tasmanian group may claim in any other administrative process under the Act.

95                  In the course of considering whether to register the ILUA, Ms Walsh determined facts and applied concepts, as defined by the Act, and came to a certain view.  In so doing, in the manner of the exercise of her functions, Ms Walsh did not exercise judicial power.  Her decision in no sense involved a binding consideration of the legal rights and obligations of the Tasmanian group; see Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 149.

96                  As was said in Tankey v Adams (2000) 104 FCR 152 at [20], it is necessary “to identify the purpose for which the Tribunal has been required to exercise its power of inquiry and determination”; see also Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656.  It was not the purpose of the Tribunal, in this case, to make any binding determinations about the existence of native title.

97                  In my view, the delegate’s findings of fact, which informed her view about the operation of s 24CG(3)(b) in the circumstances before her, were but an element in the exercise of administrative power; see R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 371.

98                  In response to the s 78B notice of a constitutional matter, the Commonwealth Attorney-General sought, and was granted, leave to intervene in the proceeding.  Counsel for the Attorney-General submitted, in my view correctly, that the real complaint of Ms Murray was that the delegate made jurisdictional errors in reaching her decision, as distinct from exercising judicial power, in the manner of exercising her functions. 

99                  Counsel for the Attorney-General referred the Court to recent observations by Gleeson CJ in Luton v Lessels  (2002) 187 ALR 529 at [21] to similar effect to those made by the Court in Cram. In Luton, Gleeson CJ noted at [21] that:

“The making of decisions by the application of legal criteria to facts as found is characteristic, but not distinctive, of judicial functions.  It is also characteristic of many administrative functions.”

100               I accept the submission of counsel for the Attorney-General that the registration of an ILUA does not involve the determination of pre-existing rights or obligations arising from the operation of the law on past events.  Upon registration, an ILUA, creates new rights and obligations.  The function of the Tribunal in the registration process is akin to the award making function of the Australian Industrial Relations Commission (“the AIRC”).  The AIRC makes awards which create new rights.  In making such awards, the AIRC often has to make assessments about factual and legal matters, but that does not necessarily involve it in the exercise of judicial power; see Re The Amalgamated Metal Workers Union of Australia; Ex parte The Shell Company of Australia Ltd (1992) 174 CLR 345 at 360 per Mason CJ, Deane, Toohey and Gaudron JJ and Re Printing and Kindred Industries Union; ex parte Vista Paper Products Pty Ltd (1993) 113 ALR 421 at 432 per Gaudron J (with whom Brennan and Dawson JJ agreed and with whom Toohey J materially agreed) and per McHugh J at 440.

101               For the foregoing reasons, I consider that the so-called constitutional issue raised by Ms Murray is devoid of merit. 

Disposition

102               The application will be dismissed.  In the event of the application being dismissed, counsel for the company foreshadowed that the company would seek an order that Ms Murray pay the company’s costs of the application.  To facilitate any debate on that issue and its subsequent adjudication, I will order a program for the filing of written submissions.

Order

The order of the Court is as follows:

1.         The application be dismissed.

2.         Within fourteen days of the making of Order No 1, the second respondent file and serve any written submissions concerning costs.

3.         Within a further fourteen days, the applicant file and serve her written submissions concerning costs.

I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:              20 December 2002

Counsel for the Applicant:	Mr B Walters SC with Ms S Moore
Solicitor for the Applicant:	Mirimbiak Nations Aboriginal Corporation
Solicitor for the 1st Respondent:	Australian Government Solicitor
Counsel for the 2nd  Respondent:	Mr J Pizer
Solicitors for the 2nd Respondent:	Minter Ellison
Counsel for the 3rd Respondent:	Mr K Bell QC with Mr S McLeish (both appearing pro bono)
Counsel for the Commonwealth Attorney-General; intervening:	Mr R Orr QC with Ms S Brown
Solicitor for the Commonwealth Attorney-General; intervening):	Australian Government Solicitor
Dates of Hearing:	27 and 28 November 2002
Completion of written submissions:	17 December 2002
Date of Judgment:	20 December 2002