FEDERAL COURT OF AUSTRALIA

Northern Territory of Australia v Doepel [2003] FCA 1384

NATIVE TITLE – application to review decision of Native Title Registrar to accept application for registration under s 190A of Native Title Act 1993 – consideration of requirements of ss 190B and 190C – whether description of composite native title claim group comprising several language groups requires Registrar to look beyond application in addressing the requirement of s 190C(2) – whether information otherwise available to suggest claim group is larger than specified claim groups requires Registrar to look beyond the application in addressing requirement of s 190C(2) – whether Registrar was required to be satisfied in fact of due authorisation of native title claimants or only of matters referred to in s 62(1) in addressing requirement of s 190C(2) – whether Registrar, upon being satisfied of certification under s 190C(4)(a), also required to address separately whether authorisation of application had in fact been given under s 251B – whether affidavits filed in support of native title application satisfied requirements of s 190C(2) and s 62 – whether description of claimed native title rights and interests in application, and material available to the Registrar, could satisfy requirement of s 190B(2) – whether Registrar properly considered the requirements of s 190B(4) – whether, in addressing the requirements of s 190B(5), Registrar may have regard to material in application – consideration of nature of material required to satisfy requirement of s 190B(5) – whether s 190B(5) and s 62(2)(e) require Registrar to address each of the claimed native title rights and interests separately and additionally to the particular matters specified by s 62(2)(e)(i) (ii) and (iii) – whether Registrar erred in not determining finally the applicability of s 47B when addressing the requirement of s 190B(6) – whether Registrar erred in addressing requirements of s 190B(8) and (9).

Native Title Act 1993 (Cth) ss 23F, 29, 47B, 61, 61A, 62, 63, 66B, 186, 190, 190A, 190B, 190C, 190D, 203BE, 223, 251B

Administrative Decisions (Judicial Review) Act 1975 (Cth) s 13

Evidence Act 1995 (Cth) ss 4, 172

Crown Lands Act 1992 (NT) s 96

Western Australia v Ward (2002) 76 ALJR 1098 followed

Moran v Minister for Land & Water Conservation for the State of New South Wales [1999] FCA 1637 noted

Quall v Risk [2001] FCA 378 noted

Edward Landers v State of South Australia [2003] FCA 264 noted

Mabo v the State of Queensland (No.2) (1992) 175 CLR 1 followed

Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 followed

Borkovic v Minister for Immigration & Ethnic Affairs (1981) 39 ALR 186 noted

Hamblin v Duffy (1981) 34 ALR 333 cited

Western Australia v Strickland [2000] FCA 652; (2000) 99 FCR 33 followed

Minister for Immigration Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

Quall v Native Title Registrar [2003] FCA 145 considered

Milirrpum v Nabalco Ltd (1971)17 FLR 141 cited

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

Holborrow v State of Western Australia [2002] FCA 1428 considered

In the matter of Daniel v State of Western Australia [2003] FCA 666 considered

State of Western Australia v Native Title Registrar (1999) 95 FCR 93;[1999] FCA 1591 cited

State of Queensland v Hutchison (2001) 108 FCR 575;  [2001] FCA 416 cited

Strickland v Native Title Registrar (1999) 168 ALR 242 followed

Martin v Native Title Registrar [2001] FCA 16 considered

Daniel v State of Western Australia [2002] FCA 1147 considered

Johnson, in the matter of Lawson v Lawson [2001] FCA 894 cited

Duren v Kiama Council [2001] FCA 1363 cited

Quandamooka People No.1 v State of Queensland [2002] FCA 259 cited

Risk v National Native Title Tribunal [2000] FCA 1589 considered

Wandarang People v Northern Territory (2000) 104 FCR 380 cited

Yarmirr v Northern Territory (No.2) (1998) 82 FCR 533 cited

North Ganalanja Aboriginal Corporation v The State of Queensland (1996) 185 CLR 595 cited

Hayes v Northern Territory (1999) 97 FCR 32; [1999] FCA 1248 cited

NORTHERN TERRITORY OF AUSTRALIA v CHRISTOPHER DOEPEL, ALAN YOUNG AND BILL HARNEY

No D 17 of 2002

MANSFIELD J

ADELAIDE

28 NOVEMBER 2003

THE COURT ORDERS THAT:

1.         The application be dismissed.

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

REASONS FOR JUDGMENT

1                     On 12 September 2002, the second respondents (who I shall call ‘the claimants’) applied to the Court under s 61 of the Native Title Act 1993 (Cth) (the NT Act) for the determination of native title in respect of certain land in the locality of Killarney Delamere in the Northern Territory and specified in Schedule D to the application (the application).  The land is generally known as the Killarney land, and the application came to be called the Killarney Application. 

2                     As required by s 63 of the NT Act, a copy of the application was sent to the Native Title Registrar to determine whether it should be accepted for registration under s 190A of the NT Act, and so be included in the Register of Native Title Claims under s 190.  The registration of the claim entitles the claimants to be notified under s 29 of any relevant future acts under Div 3 of the NT Act and to participate in negotiations with respect to the proposed future act.

3                     Registration of the application was opposed by the Northern Territory of Australia (the Territory).  Despite that opposition, the first respondent as Native Title Registrar (the Registrar) on 11 October 2002 accepted the application for registration under s 190A of the NT Act.  In response to a request made under s 13(1) of the Administrative Decisions (Judicial Review) Act 1975 (Cth) (the ADJR Act) the Registrar provided reasons for the registration decision to the Territory on 31 October 2002.  The Territory now applies under the ADJR Act to set aside the decision of the Registrar to register the application.

4                     There are two general grounds upon which the Territory attacks the decision of the Registrar. 

5                     The first has two aspects.  One concerns the authorisation of the claimants to bring the application on behalf of the native title claim group and the other concerns the identification of the native title claim group itself.  In broad terms, it is contended that the native title claim group specified in the application does not in fact meet the requirements of s 61(1) of the NT Act.  It is further contended that the authorisation given to the claimants to make the application on behalf of the native title claim group does not meet the requirements of s 251B(a) of the NT Act.  Consequently, it is contended various requirements of ss 190B and 190C of the Act were not satisfied.  They are conditions for, or requirements of, the acceptance of the application for registration. 

6                     The second ground of challenge relates to the description of the native title rights and interests claimed as set out in Schedule E to the application.  The argument is that, in the light of the decision of the High Court in Western Australia v Ward (2002) 76 ALJR 1098 (Ward), the claimed native title rights and interests cannot now be maintained.  Hence, it is said, the application fails to satisfy various of the requirements for registration imposed by s 61A and s 190B of the NT Act. 

7                     Although that brief description of the Territory’s contentions reflects the thrust of its written and oral submissions, its amended application deals with each of the conditions imposed by ss 190C(2) and (4), and by ss 190B(2), (3), (4), (5), (6), (8), (9)(a) and (9)(c).  In the course of considering the Territory’s contentions, I shall address each of its particularised grounds of review.

8                     In this matter, and pursuant to s 190A(3), there was extensive material provided to the Registrar in addition to that contained in the application and its annexures or attachments.  Following receipt of a copy of the application, there was an extensive exchange of correspondence with the Northern Land Council (the NLC), the representative body identified in the application and being the relevant representative body under Div 2 of Pt 11 of the NT Act, and with the Territory.  The communications included the provision of further submissions by the NLC and by the Territory.

9                     The material submitted to the Registrar included the following:

l                      Extracts from Volume 1 of the Upper Daly Land Claim Report (Report No 37) (the Upper Daly Report) prepared in 1989 by Justice Kearney in his capacity as Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALR Act).

l                      Extracts from the Kidman Springs / Jasper Gorge Land Claim Report (Report No 30) (the Kidman Springs Report) prepared in 1989 by Justice Olney in his capacity as Aboriginal Land Commissioner under the ALR Act. 

l                      Extracts from the Yingawunarri (Old Top Springs) Mudbura Land Claim Report (the Old Top Springs Report) prepared in 1979 by Justice Toohey in his capacity as Aboriginal Land Commissioner under the ALR Act.

l                      An extract of a copy of an agreement dated 5 December 1996 regarding certain land the subject of the ALR Act Land Claim No 158 (the 158 Agreement)scheduled under the ALR Act; and

l                      A commentary on the foregoing material attaching also a map prepared by the NLC (the Commentary).

10                  There was further material submitted to the Registrar, but it is not necessary for the purposes of this application to refer to it in any detail.

The Registrar’s GENERAL functions under ss 190A to 190C

11                  Section 190A(1) obliged the Registrar to consider the application, and by s 190A(3) to have regard to the application and other information adduced by the claimants, by the Registrar’s own researches, and where reasonably practicable to do so by the Territory, and may have regard to such other information as is considered appropriate.  Under s 190A(6), the Registrar is obliged to accept the claim for registration if it satisfies all of the conditions in s 190B (which deals mainly with the merits of the claim) and in s 190C (which deals with procedural and other matters).  If it does not satisfy all those conditions, the Registrar (or the Registrar) must not accept the claim for registration.

12                  Sections 190A, 190B and 190C were part of the extensive amendments to the NT Act introduced by the Native Title Amendment Act 1998 (Cth).  They effectively separate clearly the judicial decision-making processes under the NT Act from the administrative processes relating to registration.  Registration is not a pre-condition to the application for the determination of native title proceeding to hearing, or to it being summarily dismissed:  e.g. Moran v Minister for Land & Water Conservation for the State of New South Wales [1999] FCA 1637 (Moran); Quall v Risk [2001] FCA 378, Edward Landers v State of South Australia [2003] FCA 264 (Edward Landers).

13                  The Territory’s contentions, as the brief recital above indicates, focus upon the substantive requirements for an application for determination of native title under the NT Act.  The requirements it principally refers to are those in ss 61(1), 61A and 251B of the NT Act.  Its detailed submissions looked extensively to the material available to the Registrar under s 190A(3) to support the claim that the Registrar erred in a reviewable way in deciding to accept the application for registration.

14                  In my judgment, it is important first to focus upon the conditions imposed by ss 190B and 190C, and to determine what they impose in relation to the substantive provisions to which the Territory referred.

15                  It is convenient to set out ss 190B and 190C in full.  The consideration of them throws some light upon what the Registrar is required to be satisfied about in relation to their separate requirements.  They relevantly provide:

‘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.

No failure to comply with section 61A

(8)       The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of section 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.

            No extinguishment etc. of claimed native title

(9)       The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that:

(a)               to the extent that the native title rights and interests claimed consist of or include ownership of minerals, petroleum or gas – the Crown in right of the Commonwealth, a State or a Territory wholly owns the minerals, petroleum or gas;  or

(b)               to the extent that the native title rights and interests claimed relate to waters in an offshore place – those rights and interests purport to exclude all other rights and interests in relation to the whole or part of the offshore place;  or

(c)                in any case – the native title rights and interests claimed have otherwise been extinguished (except to the extent that the extinguishment is required to be disregarded under subsection 47(2), 47A(2) or 47B(2)).

190C   Registration:  conditions about procedural and other matters

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

Information etc. required by sections 61 and 62

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

No previous overlapping claim groups

(3)       The Registrar must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application, if:

(a)                   the previous application covered the whole or part of the area covered by the current application; and

(b)                   an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made; and

(c)                   the entry was made, or not removed, as a result of consideration of the previous application under section 190A.

Identity of claimed native title holders

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

(a)               the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; or

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

Requirements for uncertified applications

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

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

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

16                  It is trite to observe that the nature of the Tribunal’s task is defined by those provisions.  Its task is clearly not one of finding in all respects the real facts on the balance of probabilities, or on some other basis.  Its role is not to supplant the role of the Court when adjudicating upon the application for determination of native title, or generally to undertake a preliminary hearing of the application.  Section 190C, dealing with procedural and other matters, largely but not exclusively directs attention to the terms of the application itself.  Section 190C(2) is confined to ensuring the application, and accompanying affidavits or other materials, contains what is required by ss 61 and 62.  The matter raised by s 190C(4)(a) may also be met on the face of the application, perhaps supported by the Registrar’s information about the relevant representative bodies.  If s 190C(4)(b) applies, s 190C(5) imposes requirements which must appear from the application itself.  Section 190C(3) on the other hand may involve the Registrar addressing information otherwise available:  see e.g. s 190A(3)(b).  Section 190B also has requirements which do not appear to go beyond consideration of the terms of the application:  subs 190B(2), (3) and (4).  Section 190B(5), (6) and (7) however clearly calls for consideration of material which may go beyond the terms of the application, and for that purpose the information sources specified in s 190A(3) may be relevant.  Even so, it is noteworthy that s 190B(6) requires the Registrar to consider whether ‘prima facie’ some at least of the native title rights and interests claimed in the application can be established.  By clear inference, the claim may be accepted for registration even if only some of the native title rights and interests claimed get over the prima facie proof hurdle.  Indeed it may be that the Registrar, upon being satisfied that some of the native title rights and interests claimed can, prima facie, be established, might not apply that evidentiary test to each of the claimed native title rights and interests.

17                  Section 190B(5) is carefully expressed.  It requires the Registrar to consider whether the ‘factual basis on which it is asserted’ that the claimed native title rights and interests exist ‘is sufficient to support the assertion’.  That requires the Registrar to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests.  In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions.  The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts.

18                  Section 190B(7) imposes a different task upon the Registrar.  It does require the Registrar to be satisfied of a particular fact or particular facts.  It therefore requires evidentiary material to be presented to the Registrar.  The focus is, however, a confined one.  It is not the same focus as that of the Court when it comes to hear and determine the application for determination of native title rights and interests.  The focus is upon the relationship of at least one member of the native title claim group with some part of the claim area.  It can be seen, as with s 190B(6), as requiring some measure of substantive (as distinct from procedural) quality control upon the application if it is to be accepted for registration.

19                  Consequently, it is clear that ss 190B and 190C impose a range of different tasks upon the Registrar in determining whether to accept for registration an application for determination of native title rights and interests.  When considering whether the Registrar has fallen into reviewable error under s 5 of the ADJR Act, it will be necessary to identify the particular task of the Registrar which is under scrutiny.  Not every one of those tasks requires the Registrar to have logically probative evidence about the facts to which the particular part of the application relates.  The contentions of the Territory in relation to the alleged failure of the Registrar to have logically probative evidence in support of certain conclusions, or to have failed to have had regard to relevant material, or to have regard to irrelevant material, in reaching certain conclusions must be considered specifically in relation to the particular requirements of ss 190B and 190C.

Composition of the Native Title Claim Group

(a)        The Legislation

20                  Section 61(1) of the NT Act contains a table setting out the requirements for the making of an application for the determination of native title under the NT Act.  The persons who may make the application are, relevantly, described in subcl (1) of the table in the following terms: 

‘A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group;  …’

That subclause appears to echo the views of Brennan J in Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 at 61 (Mabo) where his Honour said:

‘[S]o long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.’

(b)        The Description of the Native Title Claim Group in the Application

21                  Schedule A to the application describes the native title claim group.  It is said to be comprised of the following:

‘1.        The native title claim group (“the claimants”) is comprised by the Wardaman, Liyi, Yingawurnarri and Narrwan Groups who, according to traditional laws acknowledged, and customs observed: 

a.      are traditionally connected with the area described in schedule B (“the area claimed”) through:

i.    spiritual, religious, physical and historical associations;

ii.   biological, classificatory or adoptive descent through one of the four grandparental lines of father’s father, mother’s father, father’s mother, and mother’s mother;  and 

iii.  processes of succession.

            b.    have a communal native title in the application area, from which rights and interests derive.’

Each of the Wardaman, Liyi, Yingawurnarri and Narrwan groups are then said to be comprised by all persons descended from 31 specified apical ancestors.  There are 23 specified apical ancestors for the ‘Wardaman (Wardaman Language)’ group, three for the ‘Liyi (Karrangpurru Language)’ group, four for the ‘Yingawurnarri (Mutpurra Language)’ group, and two for the ‘Narrwan (Mutpurra Language)’ group.  Further detail is provided as to each of those apical ancestors. 

(c)        The Decision of the Registrar

22                  The Registrar’s reasons for considering that the requirements of s 61(1) were met were brief.  The issue is addressed by reference to the conditions imposed under s 190C(2).  He noted that Schedule A to the application provided a description of the native title claim group comprised of the Wardaman, Liyi, Yingawurnarri and Narrwan groups.  He added that he did not have any other information that indicated that the group does not include, or may not include, all the persons who hold native title in the area of the application. 

23                  The Registrar was satisfied that the description of the native title claim group in the application provided an objective means of verifying the identity of members of the native title claim group.  He was therefore satisfied that the condition imposed by s 190C(3)(b) was met.

(d)        The Territory Contentions

24                  The Territory contentions fell under two general topics.  The first is that the Registrar failed to consider whether the several identified language groups together constitute an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs:  Mabo, Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (Yorta Yorta).  Alternatively, it is argued that the Registrar erred in concluding that the native title claim group as described can in fact comprise a native title claim group for the purposes of s 61(1) of the NT Act.  The second of the Territory’s contentions is that the Registrar, on the information provided in support of the registration of the application, knew that there were individuals and clan groups who may hold native title rights and interests in the claim area who were not included in the definition of the native title claim group in Schedule A to the application, and that therefore the Registrar erred in law in concluding that there was no information that indicated that the specified claim group did not include, or might not include, all the persons who hold native title in the area of the application. 

25                  The amended application claims the Registrar had ‘insufficient probative evidence’ to determine the native title claim group was an inclusive or comprehensive one, as well as complaining of the failure of the Registrar to have regard to the additional material, being ‘a relevant consideration’, in deciding whether the native title claim group is inclusively described.  Those matters are said to be reasons why the Registrar erred in being satisfied that the requirements of s 190C(2) were met.

26                  In addition, it is claimed, the condition imposed by ss 190B(3) was not met.  The amended application asserts that the Registrar had ‘insufficient probation evidence’ to conclude that the native title claim group was sufficiently clearly described, and that the Registrar failed to take into account a relevant consideration in addressing s 190B(3), namely the additional information from the Territory.

(e)        Consideration

(i)                 Did the Registrar Misunderstand his Functions?

27                  The Territory criticized one particular passage in the Registrar’s reasons where the Registrar described the registration test as being applied administratively, at the start of the process for determination of native title registration:

‘… to determine if there is sufficient information and factual detail in the application for the applicants to access procedural rights to which they are entitled under the Act.’

28                  The Territory contends that passage reflects a misunderstanding by the Registrar of his functions under the NT Act because it suggests or assumes that the claimants are ‘entitled’ to access procedural rights under the NT Act.  Alternatively, the Territory contends, it shows the Registrar wrongly proceeded on the basis that the claimants are entitled to registration (and to the procedural rights which flow from or upon registration) upon demonstrating formal satisfaction of the requirements of the NTA and without (and in the absence of) logically probative evidence that those requirements are met.

29                  It is of course necessary to bear in mind when considering those contentions the nature of the present application.  As it is brought under the ADJR Act, it is of course an application to review the legality of the decision-making process.  It does not involve the Court freshly determining the issues of fact or substituting its view of the correct or preferable decision for that of the decision-maker:  see e.g. Borkovic v Minister for Immigration & Ethnic Affairs (1981) 39 ALR 186 at 188; Hamblin v Duffy (1981) 34 ALR 333 at 335.  The review is unlike that under s 190D(2) of the NT Act in respect of a refusal to register a claim:  cf Western Australia v Strickland [2000] FCA 652; (2000) 99 FCR 33 (WA v Strickland).  The grounds of review are those specified in s 5 of the ADJR Act.

30                  I do not consider the passage referred to by the Territory indicates an overall misunderstanding by the Registrar of his functions under the NT Act.  The sentence may be unhappily worded, but I think it does no more than acknowledge in a general way the task of the Registrar under the NT Act when considering whether to accept a claim for registration.  The reasons of the Registrar should be read as a whole, and not with an eye keenly attuned to the perception of error:  Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 271-272 and per Kirby J at 290-293.  In context, I think the words ‘to which they are entitled’ means ‘to which they are entitled if the claim is accepted for registration’, or ‘to which they may be entitled if the claim is accepted for registration’.  So understood, the passage discloses no error, nor any assumption favourable to the claimants.  I consider the Registrar’s careful application of each of the requirements of ss 190B and 190C to the material before him indicates that he has understood properly the nature of the task imposed by the NT Act.  Each of the requirements has been separately addressed to see whether the Registrar was satisfied of its conditions.  There is no suggestion the Registrar has somehow assumed the claimants do not have to meet each of the specified conditions.

31                  The passage complained of is contained within that part of the Tribunal’s reasons addressing certain of the requirements imposed by s 190C(2), namely those specified in s 62(1)(a).  The Registrar’s reasons start by addressing the procedural requirements imposed by s 190C.  He progressively works through them.  As s 190C(2) indicates, it was necessary for the Registrar to consider whether the application and its annexures or attachments contained what was required by ss 61 and 62.  The consideration given to those requirements itself indicates that the Registrar has in fact approached his task without the misunderstanding alleged.  There is a step by step consideration of them, to determine whether the Registrar is satisfied about each of them.  At the end of that thorough process, the Registrar was satisfied the application satisfied the conditions contained in s 190C(2).  Accordingly, I reject that general contention.

(ii)               The Description of a ‘Composite Group’

32                  The Territory’s attack upon the Registrar’s decision is in part because it accepted the claim for registration despite the appearance of what was described as ‘a composite claim group’ as a satisfactory description of the ‘native title claim group’ in s 61(1) of the NT Act.  The description of the native title claim group is set out in [19] above. 

33                  The Territory’s contention is based upon the observations of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Ward at [14], [15], [18] and [20] and of Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta at [49]-[50] concerning the meaning of ‘native title’ in s 223 of the NT Act.  From those references, it is argued that the native title claim group as described, gives rise to a dilemma which is insoluble. 

34                  It is said that on the material before the Registrar, the description of the native title claim group cannot satisfy the description of an identifiable community, the members of whom are identified by one another as members of that community living together under its laws, because of its composite character.  And, on the other hand, if it constitutes a number of discrete communities, it is not an identifiable community and so cannot be a single native title claim group holding common or group interests in the particular claim area.  In support of the contention, the Territory refers to the supplementary material provided to the Registrar by the NLC, apparently intended for the different purpose of assisting the Registrar in addressing the requirements of s 190B(5) - (7).

35                  I do not need to refer to that material for the purpose of considering the Territory’s submission.  Section 190C(2) directs attention to the contents of the application and the supporting affidavits.  It seeks to ensure that the application contains ‘all details’ required by s 61.  There is obviously good reason why that should be so.  If the application did not contain the required information, for example as to the composition of the native title claim group, the subsequent determination of the application would be difficult.  And the identity of those on whose behalf the claimants would enjoy procedural rights under subdiv P of Div 3 of Pt 2 of the NT Act upon registration of the claim would be unclear.  It also ensures that the claim, on its face, is brought on behalf of all members of the native title claim group:  see e.g. Edward Landers; Quall v Native Title Registrar [2003] FCA 145 (Quall v NTR).

36                  In my judgment, s 190C(2) relevantly requires the Registrar to do no more than he did.  That is to consider whether the application sets out the native title claim group in the terms required by s 61.  That is one of the procedural requirements to be satisfied to secure registration:  s 190A(6)(b).  If the description of the native title claim group were to indicate that not all the persons in the native title claim group were included, or that it was in fact a sub-group of the native title claim group, then the relevant requirement of s 190C(2) would not be met and the Registrar should not accept the claim for registration.  In Edward Landers at [33], on an application to dismiss an application for determination of native title I said:

‘I have rejected the submission that the Edward Landers’ application should be summarily dismissed because it is clear that it was not authorised by the Dieri People under s 251B of the NT Act.  But, in my view, it also follows from the need for such authorisation that s 61(4) requires the application to be on behalf of the people who have authorised it.  It does not permit the making of a claim by a native title determination application by a subgroup of the native title claim group, or the grant of native title to a subgroup of the real native title claim group:  see Ward v State of Western Australia (1998) 159 ALR 483 at 541, Risk v National Native Title Tribunal [2000] FCA 1589 at [60], Tilmouth v Northern Territory of Australia (2001) 109 FCR 240.  By excluding from the authorising group, namely the Dieri People, the 87 persons named as the applicant group (or even merely the Dieri Mitha group) in the Dieri Mitha application, that is what the Edward Landers’ group has done.  The samller group, as expressed, is not the group of people who should exclusively enjoy the communal native title.’

It is not suggested that the face of the application in this matter raises such difficulties.

37                  My view that s 190C(2), relevantly to the present argument, does not involve the Registrar going beyond the application, and in particular does not require the Registrar to undertake some form of merit assessment of the material to determine whether he is satisfied that the native title claim group as described is in reality the correct native title claim group, is fortified by s 190B(3).  It imposes one of the merit requirements for accepting a claim for registration:  s 190A(6)(a).  Its focus also is not upon the correctness of the description of the native title claim group, but upon its adequacy so that the members of any particular person in the identified native title claim group can be ascertained.  It, too, does not require any examination of whether all the named or described persons do in fact qualify as members of the native title claim group.  Such issues may arise in other contexts, including perhaps at the hearing of the application, but I do not consider that they arise when the Registrar is faced with the task of considering whether to accept a claim for registration.

38                  It may be observed that the above approach would enable a claim to be registered, notwithstanding that there was another native title determination application by a different native title claim group over the same claim area, or overlapping the claim area or part of it.  Section 190C(3) would seem to acknowledge that should be the case, provided two native title claim groups themselves contained no overlap of membership.  That would reflect the fact, as Blackburn J said in Milirrpum v Nabalco Ltd (1971) 17 FLR 141 at 178-179, that the boundaries of claim areas of native title claim groups are not precise and they may overlap.  See also per Lee J in Ward v State of Western Australia (1998) 159 ALR 483 at 544.

39                  Counsel referred also to Quall v NTR and to Holborow v State of Western Australia [2002] FCA 1428 (Holborow) as touching upon the present issue.  Quall v NTR involved a challenge to the Registrar’s refusal to accept for registration an application for determination of native title, inter alia, under s 190D(2) of the NT Act.  Under such a review, as I noted earlier in these reasons, the Court is required to determine issues of fact:  WA v Strickland at p 49 [65].  The argument that the Registrar was not entitled to go beyond the material in the application to adjudicate upon its registrability was rejected in the light of s 190A(3).  In Quall v NTR the applicant for review argued that the Registrar had reached a wrong factual conclusion that the native title claim group identified in the application was in fact the relevant native title claim group, and not simply part of it:  see at [26].  It was not argued that, for the purposes of s 190C(2), the Registrar could not have had regard to material outside the application itself.  My observations at [23] and [26] about the Registrar being entitled to have regard to material extraneous to the application for the purposes of addressing the requirement of s 190C(2) must be seen in that context.  With the benefit of the helpful contentions of counsel in this matter, I hold the view that, for the purposes of the requirements of s 190C(2), the Registrar may not go beyond the information in the application itself.  I note that the registration in that case was also refused by reason of the requirements of s 190B(3) not being met.

40                  Holborow was an application under s 66B of the NT Act for the removal of one of the named claimants.  It concerned what French J at [50] called a ‘hybrid group claim’ in respect of which there was no process of decision-making that, under the traditional laws and customs of the persons in the native title claim groups, must be complied with:  see s 251B.  His Honour said:

‘This, however, is a native title determination application which covers both groups.  That is not an uncommon phenomenon.  It is not surprising in such cases that there would not be traditional decision-making processes embracing all elements of the hybrid claim group.’

Given the context of those remarks, I do not think they add much to resolution of the present argument.  His Honour was not addressing the nature of the registration requirement under s 190C(2) of the NT Act.  However, that it is not uncommon for there to be a ‘hybrid group claim’ under s 61 is a matter which may add a little to the conclusion I have reached, as the present registration requirements were, as I have noted, substantially amended and refined by the 1998 amendment.

41                  I note the submission of the claimants that the decision of Nicholson J in In the matter of Daniel v State of Western Australia [2003] FCA 666 (Daniel 2003) is inconsistent with the Territory’s principal submissions that a native title determination application cannot be made and cannot succeed if made by a composite claim group.  There would appear to be some merit in the claimant’s submission:  see e.g. per Nicholson J at [334] – [339].  Counsel for the Territory has responded that Daniel 2003 did not involve direct attention to s 61(1), and that Nicholson J’s observations concerned ss 223 and 225 only.  I have determined the issue arising under s 190C(2) and s 61(1) concerning the description of the native title claim group adversely to the Territory’s contentions in any event.  I do not therefore need to determine whether, as claimed, Daniel 2003 is directly contrary to the Territory’s contention.  My tentative view is that it does provide a basis for arguing that it is not necessary for the Court to find the existence of a single composite community of two (or more) specified groups, and hence that an application which refers to two (or more) specified groups is not per se invalid.  However, I have determined this issue on a more confined basis, namely by reference to the task imposed on the Registrar under s 190C(2) of the NT Act. 

            (iii)       The Inclusiveness of the Group

42                  The contention under this heading also concerns the requirements of s 190C(2) and s 190B(3), and s 61 of the NT Act.  It is said by the Territory that the native title claim group, as described in the application, does not include all those persons or clan groups who may hold native title rights and interests in the claim area.

43                  A distinction must first be made between the persons who may comprise or may be part of the native title claim group, and those who may comprise or be part of a competing native title claim group in respect of the claim area.  No overlaps of membership of competing claim groups is permitted if the claim is to be accepted for registration:  s 190C(3).  The fact that there is or may be a competing native title claim group in respect of some or all of the claim area is not itself an impediment to acceptance of a claim for registration.  Resolution of competing claims is ultimately for the Court.  There are numerous instances of overlapping claim areas in applications for determination of native title under s 61 of the NT Act.

44                  To the extent that the Territory places reliance on s 190C(2) and the required description of the native title claim group in the table to s 61(1), and the affidavit required by s 62 of the NT Act, for the reasons already given I consider the Registrar’s function was to address the application and the affidavits filed in support of it.  The present argument does not assert that, to paraphrase the words of s 190C(2), the application does not contain the details about the native title claim group required by the table to s 61(1) or was not accompanied by affidavits as to the nature of the native title claim group required by s 62(1)(a)(iv), and s 62(1)(b) and (2)(e) of the NT Act.  As I consider that to be the extent relevantly of the Registrar’s function under s 190C(2), I reject the contention that the condition imposed by s 190C(2) has not been complied with.

45                  Counsel for the claimants contended alternatively that, even if the Registrar was required to consider all the material before him to determine if the native title claim group as expressed included all members of the native title claim group, a finding of fact has been made which is not shown to involve reviewable error.  It is appropriate to address that contention also.

46                  Perhaps because it is expressed in a shorthand way, the Territory’s contention that the material revealed ‘other individuals and clan groups who may hold native title rights and interests in the claim area and who were not included in the definition of Schedule A’, needs to be further qualified.  It is only if those other persons or clan groups are in fact members of the native title claim group, but have been excluded from it, that the application might not comply with s 61.  If they are members of a competing claim group, for example with a claim to an area which overlaps the claim area, s 61(1) does not require them to be included as part of the native title claim group.

47                  There is material which evidences the existence of certain language groups which may have native title rights and interests in the claim area, and which evidences that in other proceedings the Wardaman group and the Narrwan group each have one further apical ancestor not included in Schedule A.  The existence of that material, to my mind, reinforces the view that the Registrar’s function under s 190A is to determine whether the requirements of ss 190B and 190C are satisfied according to their terms, rather than generally to consider the accuracy of the information in the application.  Is the Registrar to note the inconsistency of information in different documents, and so simply not be satisfied of the accuracy of the information in the application or of the other applications (certain of the additional information relied upon is in two other native title determination applications)?  Is the Registrar to undertake some form of hearing to reach a state of satisfaction about which application accurately describes the native title claim group?  If so, how is the inquiry to be conducted?  Issues would then arise as to whether the Registrar’s satisfaction requires the Registrar to make findings of fact, and whether the process of doing so involves the normal principles of procedural fairness to be proffered to potentially affected persons or groups:  see per Carr J in State of Western Australia v Native Title Registrar (1999) 95 FCR 93; [1999] FCA 1591; and per Kiefel J in State of Queensland v Hutchison (2001) 108 FCR 575; [2001] FCA 416 (Hutchison).  The purpose of the 1998 amendments to Part 7 of the NT Act was to impose a gateway to the statutory benefits which registration provides by identifying ‘only those people with a credible native title claim’:  Second Reading Speech of the Attorney-General, Hansard, House of Representatives, 9 March 1998, p 784.  The second reading speech does not indicate a legislative intention that the Registrar should embark upon some general fact finding exercise, balancing and weighing conflicting evidence, to determine whether to accept a claim for registration.

48                  In any event, I am not persuaded that the Registrar erred in a reviewable way in being satisfied that the native title claim group as described did not exclude persons who should have been included.  The existence of evidentiary material which might indicate a contrary conclusion does not of itself establish error by the Registrar.  The observation of the Registrar that ‘I do not have any other information that indicates …’ the native title claim group is not comprehensive does not lead to the view that the Registrar overlooked the other material to which counsel for the Territory referred.  It is an observation that is consistent with the Registrar having considered the issue, including the evidentiary material touching upon it, and nevertheless being satisfied that the description of the native title claim group was comprehensive.  In the immediately preceding section of the reasons for decision, the Registrar says he has considered and reviewed that evidentiary material.  It is listed in the reasons for decision.

49                  Counsel for the Territory further contended that s 190C(2) and s 61 were not satisfied in the description of the native title claim group in the application as the Registrar erred in being satisfied that the factual basis on which it is asserted that the claimed native title rights and interests exist is sufficient to support the assertion that the native title claim group have, and the predecessors of those persons had, an association with the area.  Section 190B(5)(a) contains that condition.  (There is a separate attack on the Registrar’s conclusion concerning the conditions imposed by s 190B(5), which is dealt with later in these reasons).  The point made in respect of s 190C(2) and s 61 is that the description of the native title claim group includes seven subgroups of the Wardaman language group, whereas the other material before the Registrar indicates that the ‘traditional country’ of one of the subgroups is remote from the claim area.  Hence, it is submitted, the particular subgroup would have no ‘association’ with the claim area and should not have been included in the native title claim group.

50                  I do not accept that contention as indicating reviewable error on the part of the Registrar in his consideration of the condition imposed by s 190(2) by reference, relevantly, to the description of the native title claim group in the application.  The first reason is that the Registrar’s task under s 190C(2) is the confined one I have described above.  Even if it is the more extensive task of determining the factual accuracy of the native title claim group on the whole of the evidentiary and other material before the Registrar, I do not consider the point made demonstrates reviewable error on the part of the Registrar.  The Territory acknowledges that the association of the native title claim group with the claim area, including the association of any specified subgroup of the native title claim group, is not necessarily inconsistent with the subgroup having ‘traditional country’ outside the claim area.  The material pointing to such a state of affairs does not therefore, in my view, demonstrate that the Registrar erred in his consideration of the condition imposed upon acceptance of registration by s 190C(2) of the NT Act.  I separately address the confined (but different) nature of the Registrar’s task under s 190B(5) below. 

51                  The attack upon the Registrar’s conclusion under s 190B(3)(b), in my judgment, must also fail.  I consider the Registrar addressed the issue which he was required to address, and reached a conclusion available to him.  The focus of s 190B(3)(b) is whether the application enables the reliable identification of persons in the native title claim group.  Section 190B(3) has two alternatives.  Either the persons in the native title claim group are named in the application:  subs (3)(a).  Or they are described sufficiently clearly so it can be ascertained whether any particular person is in that group:  subs (3)(b).  Although subs (3)(b) does not expressly refer to the application itself, as a matter of construction, particularly having regard to subs (3)(a), it is intended to do so.  Hence, in my judgment, the Registrar’s approach to the condition imposed by s 190B(3) was correct. 

Traditional Authorisation

(a)        The Legislation

52                  Section 62(1)(a)(iv) and (v) of the NT Act requires that a claimant application must be accompanied by an affidavit sworn by the applicant that the applicant is authorised by all persons in the native title claim group to make the application and to deal with matters arising in relation to it, and stating the basis upon which the applicant is authorised to do so.  The table to s 61(1) provides that the application may be made by the claimants if they are authorised by the native title claim group.

53                  Section 251B(a) of the NT Act deals with authorisation.  It relevantly provides:

‘For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)       where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind – the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process …’

It is unnecessary to refer to s 251B(b) for present purposes.  It applies where there is no process of decision making under the traditional laws and customs of the persons in the native title claim group for authorising the application. 

54                  Each of the claimants has deposed in an affidavit accompanying the application that he is authorised by all persons in the native title claim group to make the application and to deal with matters arising in relation to it.  Each deposes to having been authorised, in accordance with decision making processes under traditional laws acknowledged and customs observed by the persons in the native title claim group, to make the application.

(b)        The Registrar’s Reasons

55                  Section 190C(2) and s 190C(4) have been set out above. 

56                  The Registrar considered the affidavits of each of the claimants.  He was satisfied that they were duly sworn, and appear consistent with the form required under the Federal Court Rules.  He noted that the affidavit in each instance followed the subparagraphs of s 62(1).  In relation to s 62(1)(a)(v), having referred to s 251B of the Act, the Registrar also referred to the statement provided in Part A of the application under the heading ‘Authorisation’ asserting that the claimants are entitled to make the application as the persons authorised by the native title claim group to make the native title determination application. 

57                  The Registrar then referred to submissions from the Territory critical of the form and content of those affidavits.  He concluded:

‘As part of my statutory obligation I have considered the submissions of the Solicitor for the Northern Territory and I have formed the view in light of the matters raised and accept;

·                   that the affidavits are attached to and form part of the Form 1 for this application and therefore, they refer to this application.  There is also no requirement in s.62(1)(a) that the applicants indicate in their affidavit as to which claim the affidavits refer.  Furthermore, all these documents were referred from the Federal Court pursuant to s.63 of the NTA.  I note also that the applicants have signed their affidavits before Commissioners for Oaths, affirming that all the statements made in the application are true.

·                   that the Schedule R of the application provides details of Certification by the Northern Land Council and that there are a number of statements made regarding authorisation and the current application.  Also, having no information before me to suggest that the certification was provided or obtained fraudulently, I accept the statements contained within.

In respect of the case cited [Ward v Northern Territory [2002] FCA 171], this matter, heard before O’Loughlin J on 8 February 2002, was in regard to an application filed under s.66B, application (replacing an applicant).  The application sought to replace some of those people named currently as the applicants with a group of fourteen people, four of whom were amongst the original seventeen named in the current claim.

The named applicants were being replaced on the grounds that the current applicants were no longer authorised to make the application, or deal with matters arising under the NTA in relation to it, or had exceeded the authority given to them by the claim group.  The members applying under s.66B had to satisfy the Court that they were now authorised by the claim group to make the application and deal with matters arising in relation to it.

Also, in that case, there was no indication that the s.66B application’s supporting affidavits had been served on any of the seventeen people named.  His Honour identified certain information he considered should have been provided to support the s.66B application, including the purpose of and agenda for the meeting, who convened that meeting, how and to whom notice of the meeting was given.

Therefore, I find that the submissions of the Solicitor for the Northern Territory in relation to Ward v Northern Territory, unreported, [2002] FCA 171, 8 February 2002 with respect to the issue of authorisation, are distinguished both in law and on the facts.

·                   that the Wadaman, Liyi, Yingawurnarri and Narrwan Groups are clearly the named groups of this application and it is upon their behalf that Messrs Young and Harney bring the claim and their affidavits are attached, form part of the Form 1 as referred from the Federal Court pursuant to s.63. 

The applicants also depose in paragraph 5 of their affidavits that they are authorised, in accordance with decision-making processes under traditional laws acknowledged and customs observed, to make this application. 

Also, a further statement has been provided in Part A of the application under Authorisation where the applicants state that they are entitled to make this application as the persons authorised by the native title claim group to make the native title determination application. 

In summary, I note that the NTA is quite a different statutory scheme, and it has also been held to be beneficial legislation.  The registration test is applied administratively, at the start of a litigation process, to determine if there is sufficient information and factual detail in the application for the applicants to access procedural rights to which they are entitled under the Act.

Therefore, for reasons given above, I am not persuaded by the submissions of the Solicitor for the Northern Territory and I am satisfied that the affidavits accompany the application as required;  they are in the correct form prescribed by the Federal Court;  they address each of the matters required under s.61(1)(a) of the NTA and the application is accompanied by affidavits of the named applicants that meet the procedural requirements of section 62(1)(a).’

58                  Accordingly, the Registrar considered that the requirements of s 190C(2) in relation to s 62(1)(a) of the NT Act had been met.

59                  Section 190C(4) requires the Registrar to be satisfied that the application has been certified under s 203BE of the NT Act by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that part.  It provides an alternative to which it is not necessary to refer.

60                  The Registrar noted the application is certified by the NLC pursuant to s 203BE, and constitutes Schedule R to the application.  The NLC is the proper body to provide the certification.  The certificate satisfied the formal requirements of s 203BE.  Section 203BE(2) obliged the NLC not to certify the application unless it is of the opinion that all the persons in the native title claim group have authorised the claimants to make the application and to deal with matters arising in relation to it.  The certificate included the necessary opinion from the NLC.

61                  The Registrar was therefore satisfied that the NLC had met its requirements imposed by s 190C(4)(a) of the NT Act that the claimants have authority to make the application and to deal with matters arising in relation to it.

 (c)       The Contentions of the Territory

62                  In substance, it was contended by the Territory that the Registrar needed to have both evidence of the content of the traditional decision making process by which the authorisation was given, and evidence that the traditional decision making process has in fact been invoked.  It is only by such evidence that the Registrar can be satisfied that ‘the communal character of traditional law and custom’ (see per French J in Strickland v Native Title Registrar (1999) 168 ALR 242, at 259 – 260) (Strickland v NTR) is acknowledged, and that the authorisation is not established by formulaic statements. 

63                  The argument is based upon what is said to be required to establish authorisation under s 251B(a) of the NT Act, rather than upon the terms of any particular subclause of ss 190B or 190C. 

64                  Because the native title claim group is what the Territory calls a ‘composite claim group’, where the members of the composite claim group were identified as being members of distinct language groups, it is argued that the Registrar could not have been satisfied of the authorisation of the claimants on the material before him and without evidence that in accordance with the various traditional laws and customs of the distinct language groups there was a unitary tradition and that the authorisation process was in accordance with it.  It is then contended that the material available to the Registrar indicated that the identified language sub-groups constitute estate or clan groups that together constitute the ‘community’ of the relevant language groups.  As (it is said) the estate groups each have their individual traditional laws and customs, including the right to ‘speak for’ a particular estate, there could only be an authorisation to speak for the wider native title claim groups by some form of delegation or agency as between the several estate groups.  Such delegation or agency, it is then argued, could not be accepted by the Registrar to have existed without some anthropological evidence to support it.  The final step in this line of argument is the proposition that such material as there was before the Registrar did not meet that description, but in fact tended to establish the opposite. 

65                  Schedule R to the application is a certificate dated 12 September 2002 by Mr R Graham, Acting Manager – Anthropology of the NLC, purportedly pursuant to s 203BE of the Act.  The certification includes the following:

‘2.        The Northern Land Council is of the opinion that the requirements of s.203BE(2)(a) and (b) have been met, namely that: 

            (a)        all the persons in the native title claim group have authorised the Applicants to make the application and to deal with matters arising in relation to it …

            …

5.         This representation and anthropological research has included detailed consideration of the system of traditional laws and customs which operates in relation to the claimants including the composition of the traditional owning group, and the identification of the traditional decision making process.’

66                  It is argued that the certification does not obviate the duty of the Registrar to be satisfied that the requirements of s 61(1) and s 190C(2) of the NT Act are met and does not itself provide evidence in support of the necessary authorisation.  Hence, it is argued, the Registrar erred in law in considering whether the claimants had been authorised in accordance with the requirements of the NT Act, that he failed to take into account relevant considerations in reaching his conclusion, and that he failed to consider the ‘formulaic nature of the affidavits and of the certificate’.

67                  The certificate of the NLC was said to do no more than indicate to the Registrar whether to apply the requirements of subs 190C(4)(a) or subs 190C(4)(b) (and therefore also subs 190C(5)) in deciding whether to accept the application for registration.  The certificate of the NLC, it was argued, does not obviate the duty of the Registrar to satisfy himself that the requirements of s 61(1) as to authorised applicants are met, or to satisfy himself that the requirements of s 190B are met. 

68                  Finally, under this heading, the Territory contended the affidavits accompanying the application did not meet the requirements of s 62(1)(v) of the NT Act. 

(d)        Consideration

69                  The starting point must be to identify what ss 190B and 190C required the Registrar to address on the topic of authorisation.  For reasons already given, taking first the step of addressing the substantive requirements of ss 61 and 62, and in this context s 251B, may result in losing sight of that starting point. 

70                  On the issue of authorisation, the procedural requirements in s 190C in which the Registrar must be satisfied include:

·                    by reason of s 190C(2) the application was accompanied by affidavits sworn by the claimants that they are ‘authorised by all the persons in the native title claim group’ to make the application and to deal with matters concerning it and stating the basis for that authorisation (s 62(i), (iv) and (v)).  It is not contended that the requirements that the application contain the prescribed information (s 61(5)(c)) and be accompanied by the prescribed documents (s 61(5)(d)) are relevant;

·                    by reason of s 190C(4)(a), the certification under Part 11 by an appropriate representative body.

71                  The Territory contentions referred also to s 190B(5) and s 190B(6) but they do not in terms relate to the authorisation process.

72                  Section 190C(2) and s 190C(4)(a) impose conditions of which the Registrar is required to be satisfied which are straightforward.  In Martin v Native Title Registrar [2001] FCA 16 (Martin) registration of the application had not been accepted as the Registrar was not satisfied about a number of the conditions specified in ss 190B and 190C.  The application was to review that decision.  Two conditions arose from s 190C(2) concerning the affidavit required by s 62(1)(a)(iv) to accompany the application, and by s 62(1)(a)(v) that the affidavit state the basis for the authorisation.  The Registrar had simply addressed the content of the affidavit to determine if those conditions were satisfied.  That approach attracted no criticism from French J:  see at [10] – [12].  However, one conclusion of the Registrar was reversed as it reflected a misreading of the affidavit.  As to s 62(1)(a)(v), French J said at [12]:

‘… the other element of the delegate’s reasoning was directed to the claimed source of authorisation, descendants of the native title claim group, rather than members of the group themselves.  In my opinion, this was more than just a slip of the pen.  It indicates the deponent failed to direct her mind to the matter she must establish, namely the basis of the authorisation.’

73                  His Honour’s approach, consistently with my opinion as to what s 190C(2) requires, does not suggest that it required the Registrar to consider whether as a fact the applicant in that case was properly authorised by all the relevant members of the native title claim group.  I do not consider that s 190C(2) requires the Registrar to determine whether the claimants are in fact properly authorised. 

74                  In my judgment, the Registrar did not err in the consideration given to the requirements of s 190C(2) in the way the Territory contends.  He identified correctly the matters, on the topic of authorisation, which s 190C(2) required him to address.  He identified correctly the material to which he should refer to address those matters.  He has addressed them.  His conclusion was one reasonably available to him. 

75                  In Strickland v NTR, in a passage approved on appeal by the Full Court in WA v Strickland at57, French J said at 259 – 260:

‘The authorisation requirement acknowledges the communal character of traditional law and custom which grounds native title.  It is not a condition to be met by formulaic statements in or in support of applications.’

76                  His Honour applied that passage in Daniel v State of Western Australia [2002] FCA 1147 (Daniel).  Daniel concerned an application under s 66B of the NT Act to substitute a new set of applicants for the existing applicants, but in substance to remove a certain person from the applicants on the basis that he was no longer authorised by the native title claim group to make the application on its behalf.  Daniel demonstrates that the nature of the authorisation required under s 251B to commence an application for the determination of native title is the same as the nature of the authorisation (or decision making process of the native title claim group) to alter the named applicants under s 66B.  The nature of the authorisation was described by French J in Daniel at [14] in the following terms:

‘In so far as s 251B relies upon decision-making under traditional law and custom, it seems to allow for the recognition of a process applicable by way of analogy to decision-making relating to the institution of native title proceedings under the Act.  For that is hardly a matter likely to have been contemplated explicitly by traditional law and custom.  It may be that it is sufficient for the purposes of par (a) of s 251B to identify traditional decision-making applicable to the exercise of responsibility for, or authority over the land or waters in question.  Nevertheless it should not be surprising if there is some difficulty in applying traditional decision-making processes, albeit by closest analogy, to the conferring of the kind of authority contemplated by s 251B.’

77                  I respectfully agree with his Honour.  But it does not follow, as the Territory contends, that the Registrar was therefore obliged in considering whether the condition imposed by s 190C(2), to the extent it relates to authorisation, to consider the substantive question of the reality of the authorisation, even if it be accepted that the description of the native title claim group is (to use a word from the Territory’s submission) ‘unusual’.  Neither Daniel nor the other cases referred to in its written submission at this point (Moran;  Johnson, in the matter of Lawson v Lawson [2001] FCA 894;  Duren v Kiama Council [2001] FCA 1363;  and Quandamooka People No 1 v State of Queensland [2002] FCA 259) concerned the role of the Registrar when considering whether to accept an application for registration.  Holborow also concerned an application under s 66B of the NT Act, and so did not focus on the duties of the Registrar under ss 190A, 190B and 190C.

78                  Section 190C(4) indicates clearly the different nature of the conditions imposed upon the Registrar.  Section 190C(4) is set out at [14] above.  The contrast between the requirements of subs (4)(a) and (4)(b) is dramatic.  In the case of subs (4)(a), the Registrar is to be satisfied about the fact of certification by an appropriate representative body.  In the case of subs (4)(b), the Registrar is required to be satisfied of the fact of authorisation by all members of the native title claim group.  Section 190C(5) then imposes further specific requirements before the Registrar can attain the necessary satisfaction for the purposes of s 190C(4)(b).  The interactions of s 190C(4)(b) and s 190C(5) may inform how the Registrar is to be satisfied of the condition imposed by s 190C(4)(b), but clearly it involves some inquiry through the material available to the Registrar to see if the necessary authorisation has been given.  The nature of the enquiry is discussed by French J in Strickland v NTR at 259 - 260, and approved by the Full Court in WA v Strickland at 51 – 52.  Both Martin at [13] – [18], and Risk v National Native Title Tribunal [2000] FCA 1589 involved consideration of the condition imposed by s 190C(4)(b).

79                  As s 190C(4)(a) was found by the Registrar to have been satisfied in this matter, the Registrar was not required to undertake the task which s 190C(4)(b) would otherwise impose of considering whether, upon the material before him, the necessary authorisation had been given. 

80                  Under s 190C(4)(a), the Registrar was required to identify the relevant native title representative body.  He may have needed access to material beyond that in the application to do so.  He identified the NLC.  It is not contended that he erred in a reviewable way in taking that step.  He was also required to be satisfied that the application had been certified by the NLC under s 203BE.  He considered whether the certification was given by the NLC, and whether it was in accordance with s 203BE.  There is no issue about whether the certification was given by the NLC.  In determining whether the certificate of the NLC was in accordance with s 203BE, the Registrar addressed the terms of the certificate.  In my judgment, that is what he was required to do.  I also consider that the certificate did enable the Registrar to be satisfied that it met the requirements of s 203BE.  For the reasons already given, I do not consider that the Registrar was required to go beyond that point in this matter to be satisfied the condition imposed by s 190C(4)(a) was met.  Upon being so satisfied, he was not required to address the condition imposed by s 190C(4)(b).

81                  The Territory contends that the NLC certification could not have provided information sufficient for the Registrar ‘to be satisfied as to the issue of authorisation’ particularly having regard to the description of the native title claim group in the application.  In my view, that submission imposes upon the Registrar a function beyond that required by s 190C(4)(a).  Section 203BE(4) requires the certification to include a statement to the effect that the representative body is of the opinion that the requirements of subs (2)(a) and (b) are met and to briefly set out the reasons for the representative body holding that opinion.  The NLC certification meets those requirements.  The alternative provided for in s 190C(4)(b), and the nature of the obligations of the representative body under s 203BE, indicate in my view that in the one case the responsibility for addressing the requirements of s 251B (to the extent they must be addressed when considering whether to accept an application for registration) rests in substance with the representative body, and in the other case with the Registrar.  Section 203BE(2) provides emphatically that the representative body ‘must not’ provide its certificate unless it is of the opinion that all the persons in the native title claim group have authorised the applicant to make the application and to deal with matters arising in relation to it.  In my judgment, section 190C(4)(a) does not leave some residual obligation upon the Registrar, once satisfied of the matters to which s 190C(4)(a) expressly refers, to revisit the certification of the representative body. 

82                  The contention was put that the use of the expression ‘the traditional owning group’ in par 5 of the certification should have triggered in the Registrar some concern that the NLC had not complied with s 203BE(2) because of the way the native title claim group was described in the application.  But s 190C(4)(a) does not require the Registrar to consider the correctness of the certification by the representative body, but only its compliance with the requirements of s 203BE.  In any event, I do not consider the way in which par 5 of the certification is expressed was such as to lead to the conclusion that the Registrar erred in some reviewable way by being satisfied of the condition in s 190C(4).  The wording referred to might to some minds strike a note of discord with the description of the native title claim group in the application, but it does not necessarily do so.  Hence, even if the Territory is correct that the Registrar had to make some critical analysis of the certification (beyond ensuring its compliance with s 203BE), it has not been shown that he erred in some reviewable way by accepting the certification on its face as an accurate certification of the fact of authorisation.

83                  The Territory referred also to s 190B in the context of this submission, but no particular subsection was identified as imposing a condition upon registrability of the application which deals directly with the process of authorisation of the claimants under s 251B.  I do not consider that any subsection of s 190B directly does so.  There is a separate attack upon the Registrar’s reasoning concerning the condition imposed by s 190B(5), dealt with below.

84                  The Territory also contended that the affidavits of the claimants, filed in support of the application, contained deficiencies so that the requirement of s 190C(2) was not met, and that more generally the authorisation required by s 251B was not established.

85                  Section 190C(2) requires the application to be accompanied by an affidavit sworn by the claimants dealing with the matters specified in s 62.  The application was accompanied by affidavits of each of the claimants.  That of Bill Harney was affirmed on 3 June 2002 and that of Alan Young was affirmed on 11 September 2002.  They are in the same terms:

‘1.        I believe that the native title rights and interests claimed by the native title group have not been extinguished in relation to any part of the area covered by the application.

2.                  I believe that none of the area covered by the application is also covered by an entry in the National Native Title Register.

3.                  I believe that all of the statements made in the application are true.

4.                  I am authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it.

5.                  I am authorised, in accordance with decision making processes under traditional laws acknowledged and customs observed, to make this application.’

86                  It is first contended that neither affidavit satisfies s 172(2) of the Evidence Act 1995 (Cth) because there is no indication of the source of the knowledge information and belief asserted in pars 4 and 5.  There is however no indication in the affidavits that the claimants are speaking other than on their own knowledge.  Whether or not that is the case may ultimately be tested in evidence if the native title determination application proceeds to trial.  At present, the claimed deficiency in the affidavits is not apparent.  I do not need to determine whether, for the purpose of the Registrar determining whether the application should be accepted for registration, the Evidence Act 1995 applies.  Relevantly, it applies to proceedings in a federal court:  s 4(1).  The application was instituted in the Federal Court, and for the purposes of that proceeding clearly the Evidence Act 1995 applies.  It is not clear that the registration processes under the NT Act are however part of that proceeding, or a separate proceeding by reference to the application in the Court.  I incline to the latter alternative, especially as s 190D(2) makes a non-registration decision reviewable by the Court in a separate proceeding.

87                  The affidavits must be as required by s 62 of the NT Act.  Counsel for the Territory identified s 62(1)(a) as prescribing the relevant content of the affidavit.  Each affidavit is, in terms, an assertion following expressly the terms of each of subs 62(1)(a)(i) to (iv).  Section 62(1)(a)(v) requires the affidavits to state the basis on which the claimants are authorised by all the persons in the native title claim group to make the application and to deal with all matters arising in relation to it.  Par 5 of each affidavit is intended to meet that requirement.  In my judgment, it is not shown that the Registrar erred in this matter in being satisfied that the claimants’ affidavits met that requirement.  They indicate, albeit in a brief manner, the basis upon which they are each authorised to make the application.  It is a basis which is contemplated by s 251B.  It is also a basis which accords with the certification by the NLC under s 203BE(2).  Had the Registrar been required to address the condition in s 190C(4)(b), the laconic nature of the affidavits may have been insufficient of themselves to satisfy the Registrar of that condition.  Further material may have been needed by the Registrar.  But he was not.  In Strickland v NTR, French J at 260 when considering the adequacy of the material available to the Registrar to be satisfied of the condition imposed by s 190C(4)(b) described such affidavits as ‘formulaic’.  In that context, as his Honour clearly thought, they may not go far to satisfying the Registrar of that condition.  But, in my judgment, in the context of s 190C(2) and s 62(1)(a), the Registrar is not shown to have erred in a reviewable way in his consideration of the affidavits.

88                  I also do not accept that the Registrar erred in having regard to the affidavits of the claimants even though they were not exhibited or annexed to the application.  The requirement of s 62 is that the application be accompanied by the affidavits.  It was.  There could be no serious submissions made that the affidavits did not refer to the application, and should not be read by reference to it.  The Registrar, in my judgment, did not err in treating the affidavits as having accompanied the application and as referring to it.

89                  Nor, in my view, is there merit in the attack upon the Registrar’s decision because Bill Harney’s affidavit is dated some time before the application was made, and before the notifications given under s 29 of the NT Act referred to in Schedule B to the application.  The exigencies of distance and access, as well as the detailed requirements of ss 61 and 62, sometimes mean there will be a delay, perhaps a considerable delay, between the authorisation of applicants to make an application under s 61 and the making of the application.  Schedule B is to identify the area over which native title rights and interests are claimed.  It does so in part by reference to certain notices given under s 29.  It does not follow that the native title claim groups were not aware of the prospect of notices being given in respect of the areas to which they refer prior to the issue of the actual notices, or that the notices do not refer to areas of land over which the native title claim group had previously decided to claim native title rights and interests. 

90                  At the hearing of the application proof of the composition of the native title claim group, and that it duly authorised the claimants, will have to be given if that is in issue.  The matters raised by the Territory will potentially be the subject of cross-examination.  Whether, in the light of the whole of the evidence, the Court is satisfied as to those matters is not to be addressed now, nor indeed to be addressed by the Registrar when considering whether to accept the application for registration.  The functions of the Registrar are those prescribed in ss 190B and 190C.  At the point of the Registrar’s determination, in my judgment the material referred to does not demonstrate reviewable error on his part.

SPECIFICATION OF, AND SUFFICIENCY OF FACTUAL BASIS FOR, ASSERTED RIGHTS AND INTERESTS

(a)        The Legislation

91                  Section 62(1)(b) and (2)(d) requires the application to include a description of the native title rights and interests claimed in relation to the land (including any activities and 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.  Sections 62(1) and 62(2)(e) requires a general description of the factual basis on which it is asserted that the native title rights and interests claimed exists.

92                  Sections 190B(4) and (5) impose registrability conditions by reference to those provisions.  Section 190B(4) requires the Registrar to be satisfied that the description in the application required by s 62(2)(d) is sufficient to allow the claimed native title rights and interests to be identified.

93                  Section 190B(5) then obliges the Registrar to be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exists 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.’

94                  The amended application referred also to the conditions imposed by ss 190B(2), (6), (8), (9)(a) and (9)(c).  They are set out above.

(b)        The Description of the Native Title Rights and Interests

95                  Schedule E to the application under the heading ‘Description of Native Title Rights and Interests’ is in the following terms:

‘1.        The claimants are entitled, under traditional laws acknowledged and customs observed, to exercise native title rights and interests claimed in relation to the area claimed which include as follows: 

(a)       to possess, occupy use and enjoy the area claimed to the exclusion of all others; 

(b)       to speak for and to make decisions about the use and enjoyment of the application area;

(c)        to reside upon and otherwise to have access to and within the application area;

(d)       to control the access of others to the application area;

(e)        to use and control the resources of the application area;

(f)        to control the use and enjoyment of others of the resources of the application area;

(g)       to share, exchange and/or trade resources derived on and from the application area;

(h)       to maintain and protect places of importance under traditional laws, customs and practices within the application area;

(i)        to maintain, protect, prevent the misuse of and transmit to others their cultural knowledge, customs and practices associated with the application area, where the traditional laws acknowledged and customs observed have a connection with the application area;

(j)        to determine and regulate membership of, and recruitment to, the landholding group.

2.         The claimants acknowledge that:

(a)       their native title rights and interests are subject to all valid and current laws of the Commonwealth and the Northern Territory;  and,

(b)       the exercise of their native title rights and interests might be regulated, controlled, curtailed, restricted, suspended or postponed by reason of the existence of valid concurrent rights and interests in others by or under such laws;  and, 

(c)        their native title rights and interests might have been partially extinguished by relevant valid laws of the Commonwealth, South Australia, and the Northern Territory. 

3.         Subject to Schedule L, this application does not claim that the native title rights and interests confer:

(a)       possession, occupation, use and enjoyment to the exclusion of all others;

(f)        [sic] the right to control the access of others to the application area;  or

(g)       [sic] the right to control the use and enjoyment of others of the resources of the application area: 

            in relation to any area regarding which a previous non-exclusive possession act under s 23F of the NTA has been done. 

4.         All rights and interests listed in paragraph 1 above exist (and existed) throughout the whole of the area claimed. 

5.         The native title rights and interests are held communally by the claimants, albeit that: 

(a)       the capacity of individuals to exercise these rights and interests will vary according to a variety of circumstances, for example age, gender, and physical and mental capacity; 

(b)       by traditional laws and customs, responsibility for the area claimed is exercised by different individuals in different ways.

6.         The activities referred to in schedule G are enjoyed by the claimants, and derive from their native title and are consistent with their native title rights and interests.’

(c)        The Registrar’s reasons

96                  The requirements of s 190B were addressed sequentially.

97                  As to s 190B(2), the Registrar referred to the map which is Attachment A to the application, and to Sch B which describes the claim area.  He referred to a Geospatial Assessment made by the National Native Title Tribunal of 10 September 2002 commenting upon a few aspects of the claim area, and the clarification given by the NLC on 26 September 2002.  It addressed those concerns.  He was satisfied that the description of the claim area, as clarified, and the map are consistent and identify the claim area with reasonable certainty.

98                  The Registrar was satisfied about the requirement imposed by s 190B(4) in respect of the rights and interests claimed in subpars 1(a), (b), (c), (d), (f), (g), (h) and (j) of the application.  In reaching that conclusion, the Registrar noted that the rights and interests as claimed were subject to qualifications in schedule E, pars 2, 3, 4 and 5.

99                  The Registrar referred to s 223(1) and to the decision in Ward.  He recognised that some claimed rights and interests may not be native title rights and interests as defined.  He identified the test of identifiability as being whether the claimed native title rights and interests are understandable and have meaning.  There is no criticism of him in that regard.  He found the rights and interests in subpars 1(e) and (i) of Schedule E to the application were not readily identifiable as native title rights and interests.  The former by reason of Wandarang People v Northern Territory (2000) 104 FCR 380 at [124] and Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 at [158].  The latter by reason of the decision in Ward at [64].

100               In reaching his conclusion, the Registrar accepted that the claims must be tested against the decision in Ward.  Because the rights which he was satisfied were properly identified were subject to the qualifications referred to, he did not regard them as being inconsistent with the views of the majority in Ward at [417] about the effect of pastoral leasehold.  Their Honours (Gleeson CJ, Gaudron, Gummow and Hayne JJ) said:

‘[T]he grants of the respective pastoral leases were inconsistent with the continued existence of the native title right to control access to and make decisions about the land.  Those rights were inconsistent with the right of the pastoral lessee to use the land for pastoral purposes.’

101               The Registrar pointed out that the claimants acknowledged that their claimed native title rights and interests are subject to all valid and current laws of the Commonwealth and of the Territory, that the exercise of their native title rights and interests might be regulated, controlled, curtailed, restricted, suspended or postponed by reason of the existence of valid concurrent rights and interests in others by or under such laws, and that their native title rights and interests might have been partially extinguished by relevant valid laws of the Commonwealth, of South Australia, or of the Territory:  Schedule E(par 2) to the application.  He noted also that Schedule E(par 3) to the application indicated that it was not claimed that the native title rights and interests confer possession, occupation, use and enjoyment to the exclusion of all others, or confer the right to control the access of others to the application area, or confer the right to control the use and enjoyment of others of the resources of the application area, in relation to any area regarding which a previous non-exclusive possession act under s 23F of the NT Act has been done.

102               The Registrar extensively considered the conditions imposed by s 190B(5).  After referring to the terms of s 190B(5), the Registrar referred to the additional material and to the statements in Schedules F, G and M to the application.  He concluded that that material established some degree of factual basis for the claimed native title rights and interests.  He noted however that the requirements of s 190B(5) go beyond the mere assertion of a factual basis for those rights.

103               The Registrar therefore accepted the contention of the Territory, in the light of Ward, that there must be probative material to support the asserted native title rights and interests.  The Territory had contended that the several Land Claim Reports (the reports of Aboriginal Land Commissioners under the ALR Act referred to in [12] above are not available material to serve that purpose.  The Registrar did not accept that.  On this application, in other respects, the Territory has relied extensively upon the several Land Claim Reports to support its contentions.  He regarded the supplementary material, in particular the Land Claim Reports, as ‘relevant and probative’ material going to his consideration.  He noted that those Land Claim Reports deal with the traditional laws and customs of the same groups of people over areas of land in close proximity to the area the subject of the application.

104               He said:

‘Before dealing with each of the conditions it should be noted that it is not my role to reach definitive conclusions about complex anthropological issues pertaining to applicants’ relationships with the country subject to native title claimant applications.  What I must do is consider whether the factual basis provided is sufficient to support the assertion that the claimed native title rights and interests exist.  In particular, it must support the three assertions in sections 190B(5)(a, (b) and (c).’

105               The Registrar then addressed first the factual basis upon which it is asserted that the native title claim group have, and the predecessors of those persons had, an association with the claim area; secondly, whether there exist traditional laws acknowledged and traditional customs observed by the native title claim group that give rise to the claim to native title rights and interests; and thirdly, whether the native title claim group has continued to hold such native title in accordance with those traditional laws and customs, is sufficient to support those assertions in the application.

106               In the light of the additional information provided by the claimants and the information contained in the application, the Registrar was satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exists is sufficient for the purposes of the condition set out in s 190B(5).

107               The Registrar then addressed s 190B(6).  He considered the land tenure history of the claim area.  He identified a number of pastoral leases and perpetual pastoral leases over the claim area or parts of it.  Many of them, although apparently granted in perpetuity, by reason of ss 38 and 39 of the Pastoral Leases Act (NT) and the reservations in favour of aboriginal inhabitants of the Territory, were not or may not be exclusive pastoral leases and so he thought may amount to previous non-exclusive possession acts.  He gave reasons for that conclusion.

108               There were certain native title rights and interests claimed (application Sch E pars 1(e) and (i)) which the Registrar had not been satisfied were readily identifiable.  They were: 

·                   to use and enjoy the resources of the application area, insofar as the resources claimed are minerals and petroleum as defined in the Minerals (Acquisition) Act (NT) and the Petroleum Act 1984 (NT);

·                   to maintain, protect, prevent the misuse of and transmit to others their cultural knowledge, customs and practices associated with the application area, whether traditional laws acknowledged and customs observed have a connection with the application area.

109               There were however further rights and interests which he considered were properly identified.  He addressed each of those in turn and concluded that on a prima facie basis those rights can be established in relation to part or whole of the claim area.  His conclusion was as follows: 

‘The rights and interests in (a), (b), (c), (d), (e) (natural), (f) (natural), (h) and (j) can be established on a prima facie basis in relation to vacant crown land claimed.  The rights and interests in (c), (e) (natural), (f) (natural), (h), (j) are capable of being established on a prima facie basis for part of the areas identified as Perpetual Pastoral Leases.

The application does not contain information upon which I can find that the rights and interests in (g) can be established on a prima facie basis.’

110               Hence, for the purpose of the Register of Native Title Claims, the Registrar determined under s 186(1)(h) that it should contain the following as the description of the native title rights and interests which, under s 190B(6), he considered, prima facie, as rights and interests which can be established:

‘The rights and interests in relation to Crown Land:

(a)                    to possess, occupy, use and enjoy the area claimed to the exclusion of all others;

(b)                    to speak for and to make decisions about the use and enjoyment of the application area;

(c)                    to reside upon and otherwise have access to and within the application area;

(d)                    to control the access of others to the application area;

(e)                    to use and enjoy the natural resources (excluding minerals and petroleum as defined in Minerals (Acquisition) Act (NT) and the Petroleum Act 1984 (NT)) of the application area;

(f)                     to control the use and enjoyment of others of the natural resources (excluding minerals and petroleum as defined in Minerals (Acquisition) Act (NT) and the Petroleum Act 1984 (NT)) of the application area;

(h)                    [sic] to maintain and protect places of importance under traditional laws, customs and practices in the application area;

(g)                    [sic] to determine and regulate membership of, and recruitment to, the landholding group.

The rights and interests in relation to part of the areas identified as Perpetual Pastoral Leases:

(c)                    [sic] to reside upon and otherwise to have access to and within the application area;

(e)          [sic] to use and enjoy the natural resources (excluding minerals and petroleum as defined in Minerals (Acquisition) Act (NT) and the Petroleum Act 1984 (NT)) of the application area;

(f)                     [sic] to control the use and enjoyment of others of the natural resources (excluding minerals and petroleum as defined in Minerals (Acquisition) Act (NT) and the Petroleum Act 1984 (NT)) of the application area;

(h)          [sic] to maintain and protect places of importance under the traditional laws, customs and practices in the application area;

(i)                      [sic] to determine and regulate membership of, and recruitment to, the landholding group.’

111               The Registrar’s consideration of s 190B(8) is quite brief.  His focus was upon the terms of the application and the accompanying documents, and his own knowledge from a search of the Register of Native Title Claims.  There were no approved determinations of native title for the claim area of the application.  The application itself did not claim native title rights and interests in circumstances where s 61A(2), (3) and (4) would not have permitted such a claim.

112               As s 190B(9)(a) and (c) also attracted submissions from the Territory, it is necessary also to note how the Registrar dealt with these provisions.  Schedule Q of the application, as well as the acknowledgment in par 2 of Sch E, were regarded as sufficient to ensure that the application came within the requirements of s 190B(9)(a).  Schedule Q stated that the claimants did not claim ownership of minerals, petroleum or gas wholly owned by the Crown, whilst asserting that the Crown does not wholly own minerals, petroleum or gas in the area subject to the application.  Schedule E par 2 is set out in [94] above.

113               Schedule B pars (2) and (3) to the application indicates that any area in respect of which there has been a previous exclusive possession act under s 23 or where native title has otherwise been extinguished is excluded from the application.  Consistent with the Registrars’ approach to s 190B(6), he therefore concluded that the application and accompanying documents did not disclose that the native title rights and interests claimed have otherwise been extinguished.  The Registrar was not himself aware that the native title rights and interests have otherwise been extinguished.  Thus the Registrar considered that s 190B(9)(c) was not applicable.

(c)        the contentions of the Territory

114               Although s 190B(2) was referred to in the amended application, because it was asserted the Registrar erred in law in being satisfied with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters, the Territory’s contentions did not strongly focus on this aspect.  It was really a subsidiary point to its concerns about the description of the native title rights and interests claimed.  The point made was that the ‘absence of certainty’ arises because the particular rights and interests claimed vary within the overall area the subject of the application. 

115               The attack upon the finding under s 190B(4) is a short one.  Although the Registrar correctly asked whether the claimed native title rights and interests are understandable and have meaning, it is contended the Registrar then erred in law in applying that test because the claimed rights and interests which he accepted are contradictory, when read with Schedule E pars 2, 3 and 4 of the application.

116               The attack upon the finding under s 190B(5) is that the Registrar wrongly confined consideration to the three particular matters referred to in subpars (a), (b) and (c) of s 190B(5).  The argument is that the Registrar must first be satisfied of those three matters, and must then consider whether there is in addition a sufficient factual basis to support the assertion of each of the claimed native title rights and interests in par 1 of Sch E to the application.  Reference was made to s 186(1)(g) of the NT Act, which requires the Registrar of Native Title Claims to contain a description of the native title rights and interests in the claim area which the Registrar, in applying s 190B(6), considered, prima facie, could be established.  It is said that, unless there is material to provide a sufficient factual basis for the assertion that a particular native title right or interest exists, there could be no basis to form the view under s 190B(6) which s 186(1)(g) contemplates.  The error of the Registrar, it is submitted, is to have presumed or inferred from evidence of continued occupation in accordance with tradition ‘a cornucopia’ of rights, including from material in the Land Rights Reports, whereas the Registrar should have been required to have more explicit and firmer evidence.  Reliance is placed upon the judgment of the majority in Ward at [18] where their Honours said:

‘The question in a given case whether (a) [subsection 223(1)] is satisfied presents a question of fact.  It requires not only identification of the laws and customs said to be traditional laws and customs but, no less importantly, the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs.’

117               Further errors of the Registrar were said to be that the Registrar took into account what was stated in the application itself, when such material is irrelevant, and that the Registrar failed to take into account the relevant consideration of the absence of reference in the Land Rights Reports to the specific rights asserted in Sch E par 1.

118               The Territory submitted that s 190B(6) provided a stumbling block to registration because ss 190B(4) and 190B(5) were not satisfied.  If either of the requirements in ss 190B(4) or 190B(5) were not satisfied, it would be unnecessary to consider s 190B(6).  For registration, all of the conditions in ss 190B and 190C must be met.

119               Additionally, the Territory contends, the Registrar erred in concluding that the rights and interests claimed in pars 1(a)(, (b), (d) and (f) of Schedule E could, prima facie, be established.  Those rights relate to Crown Land over which stock routes have been declared and gazetted.  The Registrar regarded s 47B as potentially applying to those parts of the claim area.  The argument is that s 47B cannot apply, even on a prima facie basis, to stock routes as they are declared under s 96 of the Crown Lands Act 1992 (NT).

120               As to the native title rights and interests claimed in pars 1(c), (e), (h) and (j), the Territory accepts that on present authority such rights and interests could be capable of being, prima facie, established.  As s 190B(6) requires only that ‘at least some’ of the native title rights and interests claimed should have that character, the acknowledgment might be seen to result in there being no need to further address s 190B(6).  However, the Territory contends the Registrar erred in law in considering that those claimed rights and interests prima facie can be established because par 1 of Schedule E is expressed as being subject to pars 2 and 3 of Schedule E but the qualifications do not appear in the Register itself.  Thus, it is submitted, the Registrar erred in his determination with respect to areas the subject of pastoral tenure in circumstances where such rights and interests are not expressed as being subject to rights flowing from such tenure.

121               The Territory contends that the Registrar’s conclusions about the conditions imposed by s 190B(8) and s 190B(9)(a) and (c) are erroneous in law, in substance because the Registrar is said to have ‘in effect’ amended the application by amending the native title rights and interests claimed so as to enable a finding to be made that, prima facie, they are capable of being established and do not contravene those provisions.

(d)        Consideration

122               The criticism of the Registrar’s consideration of s 190B(2) does not appear to pay full regard to its introductory words.  The focus is upon the information and map contained in the application, as required by s 62(2)(a) and (b).  It is whether that material enables, with reasonable certainty, the assessment of whether the native title rights and interests are claimed in relation to particular land or waters.  The Registrar sought some clarification of the relevant material.  The Territory does not contend he was wrong to have done so.  In the light of that clarification, the Registrar was satisfied that the requirements of s 190B(2) were met.  It was open to regard the application as seeking the determination of the claimed native title rights and interests over all the claim area, so that, subject to ensuring the claim area was adequately and accurately described, the ‘particular land and waters’ over which the claims are made are identified with reasonable certainty.  In my view, the Tribunal has not erred in any reviewable way in reaching that conclusion. 

123               In my judgment, the Registrar is not shown to have erred in any reviewable way in addressing the condition imposed by s 190B(4).  It was a matter for the Registrar to exercise his judgment upon the expression of the native title rights and interests claimed.  He reached the required satisfaction that, apart from Sch E pars 1(e) and (i), the claimed native title rights and interests did meet the requirements of being understandable as native title rights and interests and of having meaning.  He had regard to the contents of pars 2, 3 and 4 of Schedule E.  It was open to the Registrar to read the contents of Schedule E together, so that properly understood there was no inherent or explicit contradiction in Schedule E.  That was what was intended by the claimants.  The fact that some other person may have read the contents of Schedule E in a different way does not itself demonstrate reviewable error on the part of the Registrar.

124               I am not persuaded that the Registrar’s approach to s 190B(5) reveals error on his part.  The first step in the contention is that s 190B(5) requires more than a focus upon the three particular matters specified in subcl (a), (b) and (c).  They refer to the assertions that the native title claim group and its predecessors have an association with the claim area, that they have and observe traditional laws and customs giving rise to the claim, and that the claim group continues to hold the (claimed) native title in accordance with those traditional laws and customs.  If, despite the Registrar being satisfied of those matters, the Registrar was not satisfied of a sufficient factual basis for each of the claimed native title rights and interests claimed, then it is contended the registration must be refused.  The assertion is then made that the Registrar assumed from evidence of continued occupation in accordance with tradition the necessary foundation for the specifically claimed native title rights and interests.  Moreover, it is argued, the Registrar is not entitled to have regard to the material within or accompanying the application to determine whether s 190B(5) is met, but that the Registrar in this matter did so.

125               One of those contentions can be briefly dealt with.  There is nothing in s 190B(5) or in s 190B generally which indicates that the assertions in the application itself may not be considered by the Registrar in addressing the condition imposed by s 190B(5).  In both WA v Strickland at 54-55 [88 - 89] citing with approval Strickland v NTR at 261, and Martin at [23] – [26], the Court was prepared to consider the material included in the application as material relevant to the satisfaction of the condition imposed by s 190B(5).  The Registrar then, in fact, looked at the extensive material available beyond the application to address the condition. 

126               Clearly the requirements upon registration imposed by s 190B should be read together.  Section 190B(6) requires the Registrar to consider that, prima facie, at least some of the native title rights and interests claimed can be established.  It is necessary that only the claimed rights and interests about which the Registrar forms such a view are those to be described in the Native Title Register:  see s 186(1)(g).  It is therefore clear that a native title determination application may be accepted for registration, even though not all the claimed rights and interests, prima facie, can be established.  Section 190B(6) requires some measure of the material available in support of the claim.

127               On the other hand, s 190B(5) directs attention to the factual basis on which it is asserted that the native title rights and interests are claimed.  It does not itself require some weighing of that factual assertion.  That is the task required by s 190B(6).  As counsel for the Territory also pointed out, addressing s 190B(6) may also require consideration of controverting evidence.  Indeed, in Martin at [22] and [27] French J pointed out that the Registrar had erred in formulating the questions posed by s 190B(5) as being whether he was satisfied as to the existence of the three matters referred to in subcl (a), (b) and (c). 

128               All it requires is that the Registrar be satisfied that there be a proper factual basis on which it was asserted that the claimed native title rights and interests exist.

129               The Registrar in this matter was satisfied that the factual basis asserted in Sch F, G and M of the application established ‘some degree of factual basis’ for the claimed rights and interests.  Schedule F is in fact designed to provide the factual basis for the assertions:  see s 62(2)(e).  As Kiefel J in State of Queensland v Hutchison (2001) 108 FCR 575; [2001] FCA 416 (Hutchison) said at 583 – 584 [25], s 62(2)(e) requires only a general description of the factual basis for the assertions as to the existence of the claimed native title rights and interests.  In fact the Registrar recognised that such material might not establish a ‘sufficient’ factual basis for them.  He looked extensively to the Upper Daly Report, the Kidman Springs Report, the Old Top Spring’s Report, and the 158 Agreement.  He considered that material to be relevant, notwithstanding the contention of the Territory made to him that it was not.  And, as the passage set out in [103] above indicates, he correctly identified the question which s 190B(5) raised. 

130               The Registrar has then carefully reviewed the material, separately with respect to each of the matters to which subcl (a), (b) and (c) of s 190B(5) refer, to determine if he is satisfied about them.  I consider his analysis of the material, and his conclusions, reveal no reviewable error on his part.  I do not consider it is necessary for the relevant material, for example the Land Claim Reports, to address specifically and separately each of the claimed native title rights and interests for the Registrar to have been able to be satisfied in terms of s 190B(5).  He has not reasoned from the very general to the very particular.  His reasoning involves a careful and detailed analysis of the particular information available to address, and making findings about, the particular matters to which s 190B(5) refers, in terms of his satisfaction.  It was the combination of the material which led to his conclusions.

131               In both Martin at [20]-[22] and [27], and Hutchison at [25], French J and Kiefel J respectively recognised that s 190B(5) reflects the positive requirements of s 62(2)(e), although as noted Kiefel J noted the possible difference between there being ‘a general description’ on the one hand and ‘sufficient’ description on the other in the two provisions.  In neither case was it suggested that the particular focus of s 62(2)(e) or s 190B(5) was only one of two significant requirements of those provisions.  Section 62(2)(e) dictates a required content of an application for determination of native title.  Its expression is to indicate generally the topic to be addressed, and within that topic particular features or aspects of the topic which must be addressed.  It does not provide for two different sets of content obligations which must each be met, but one with a particular focus.  In my view, what has apparently been assumed sub silentio in those cases, at least by the parties who have not chosen to argue to the contrary, reflects a sensible reading of both s 62(2)(e) and s 190B(5).  Each requires the factual basis for the claimed native title rights and interests to be asserted.  Each identifies the particular assertions which must be supported by the factual basis set out.  It follows, in my view, that the general requirement beyond the particular is not intended to involve a parallel or equally onerous obligation in relation to each of the claimed native title rights and interests separately.  Had that been intended, it could readily have been stated.

132               Consequently, in my view, the Registrar did not err in focussing primarily upon the particular requirements of s 190B(5).  That is the way in which the NT Act directs his attention.  If any of the particular requirements were not met, then the general requirement would not be met.  Having been satisfied of the particular requirements, of s 190B(5), and because s 190B(6) appears to impose a more onerous test to be applied to the individual rights and interests claimed, it follows that the Registrar is not shown to have erred in his consideration of s 190B(5) in the manner asserted by the Territory.  I do not regard the necessity of the Court to address each claimed right or interest separately when deciding an application for native title (see e.g. per Nicholson J in Daniel 2003 at [137] – [151]) illuminates the task of the Registrar under s 190B(5). 

133               The claimed rights over Crown Land which the Registrar considered, prima facie, could be established are those specified in par 1(a), (b), (d) and (f) of Sch E to the application.

134               Although North Ganalanja Aboriginal Corporation v The State of Queensland (1996) 185 CLR 595 (Waanyi) was decided under the registration regime applicable before the 1998 amendments to the NT Act, there is no reason to consider the ordinary usage of ‘prima facie’ there adopted is no longer appropriate:  see the joint judgment of Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ at 615 – 616.  Their Honours’ remarks at 622 – 623 indicate the clearly different legislative context in which that case was decided.  There is, however, no submission that the Registrar misunderstood the task which s 190B(6) imposed.

135               What was urged was that, in respect of those four claimed rights, they are necessarily extinguished by the grant of the stock routes to the extent that the stock routes cover the claim area.  Section 47B is said, clearly, not to be available to sustain the claimed areas because s 47B does not apply, by reason of s 47B(1)(b)(ii).  The Registrar did not decide whether s 47B applied in the circumstances.  The extent or ambit of s 47B(1)(b)(ii) has not been fully explored in decisions to date.  I do not consider it was incumbent upon the Registrar, in such circumstances, to resolve such a question:  see e.g. the discussion by McHugh J in Waanyi at 638 – 641.  To adopt his Honour’s words, if on its face a claim is arguable, whether involving disputed questions of fact or disputed questions of law, it should be accepted on a prima facie basis.  The broad approach of Nicholson J in Daniel 2003 at [967] – [968] in a somewhat different context seems (without the benefit of full submissions) to lie a little uneasily with the application of s 47B by Olney J in Hayes v Northern Territory (1999) 97 FCR 32;  [1999] FCA 1248.  I do not regard s 47B(1)(b)(ii) as so clearly applying to the instruments by which the stock routes were established as to demonstrate legal error on the part of the Registrar in accepting, notwithstanding the stock routes, that prima facie the rights and interests claimed in par 1(a), (b), (d) and (f) of Sch E to the application can be made out. 

136               The balance of the Territory’s contentions concerning s 190B(6) concerns the rights identified in subcl 1(c), (e), (h) and (j) of Sch E to the application.  The submission is not as to the Registrar’s conclusion that such rights are capable prima facie of being established.  The Territory’s complaint is about the entry in the Native Title Register.  I do not regard the entry in the Native Title Register, which does not contain the qualifications expressed in pars 2, 3, 4 and 5 of Sch E to the application, as demonstrating that the Registrar erred in his consideration of s 190B(6).  The Registrar expressly referred to the qualifying statements in par 3 of Sch E when addressing those rights.  In considering seriatim the several rights and interests which survived the Registrar’s analysis under s 190B(4), reference again is made to the claimed rights not being asserted inappropriately as exclusive rights.

137               It is unclear whether the description of the native title rights and interests in the claim area which the Registrar, in applying s 190B(6), considered, prima facie, could be established should be qualified in some way when recorded on the Native Title Register.  That issue was not fully argued, and the amended application does not seek specifically that the Native Title Register be amended in some way.  However, I am of the view that the Registrar, in addressing s 190B(6), did not err in the manner presently being considered by reason of the argument referred to.  I did not understand the Territory otherwise to challenge the Registrar’s decision under s 190B(6) in respect of those four particular claimed rights in subcl 1(c), (e), (h) and (j) of Sch E to the application. 

138               In my judgment, the Registrar’s approach to consideration of s 190B(8) and s 190B(9)(a) and (c) is not erroneous.  I do not accept the Registrar amended the application as asserted.  He interpreted the application, having regard to the entirety of its contents.  It was appropriate for him to do so.  Indeed, it was necessary that the Registrar should do so in order that the prohibitions contained in s 190B(8) and s 190B(9) could be addressed.

139               His understanding of the application, being one which was available to him, does not mean the claimants should amend the application.  There is no need for them to clarify the asserted rights, as properly understood they require no clarification.  Nor do they attract the application of s 190B(8) or s 190B(9)(a) or (c).  I do not regard the terms of the entry in the Native Title Register as demonstrating that the Registrar, despite his reasons not disclosing error, has proceeded in some erroneous way in addressing ss 190B(8) and (9). 

Conclusion

140               For the reasons given, I consider the application should be dismissed.

141               I point out, as is apparent from the reasons given above, that the resolution of the present application is by reference to the particular terms of ss 190B and 190C.  The function of the Court, when hearing the application for determination of native title, will or may include addressing afresh – but in an entirely different context – many of the matters put on behalf of the Territory on this application.  For example, issues as to whether in fact the native title claim group as expressed in the application is a native title claim group, and as to whether the claimants were in fact authorised in accordance with s 251B(a) to make the claim, may well be the subject of contested evidence and findings.  No doubt other matters such as the application of s 47B to the establishment of the stock routes will arise.  The resolution of the present application does not indicate in any sense how such issues may ultimately be resolved. 

142               The Native Title Register includes, under s 186(1)(f), in relation to part of the areas identified as Perpetual Pastoral Leases, the right:

‘(f)       to control the use and enjoyment of others of the resources (excluding minerals and petroleum as defined in the Minerals (Acquisition) Act (NT) and the Petroleum Act 1984 (NT)) of the application area …’

143               The Registrar’s conclusion under s 190B(6) confined the right to natural resources only, but the limitation does not appear in the Register.  Presumably such an inadvertent error can be addressed administratively.  The claimants acknowledge the error should be corrected.

144               I note the Registrar appeared only to submit to such order as the Court might make on the application.

Associate:

Dated:              28 November 2003