FEDERAL COURT OF AUSTRALIA

Hazelbane v Doepel [2008] FCA 290

NATIVE TITLE – application to review decision of Native Title Registrar to accept application for registration of Batchelor No 2 claim under s 190A of Native Title Act 1993 (Cth) – whether applicant group, Batchelor 1 claimants are “persons aggrieved” by the decision so as to have standing to challenge the decision of the Registrar – whether Batchelor 1 documents devised procedural fairness through failure to be given opportunity to provide submissions on whether the Batchelor No 2 claimants should be accepted for registration pursuant to s 190A – consideration of requirements in ss 190B and 190C – whether Registrar erred in having regard to additional information provided by Batchelor No 2 claimants specifically for the purpose of a mediation in order to be satisfied of a sufficient factual basis to meet native title rights and interests desired pursuant to s 190B(5) – whether Registrar fell into error by identifying a wrong issue and asking himself a wrong question in addressing procedural requirements in s 190C(2) and (4) – whether requirements of ss 61 and 62 met

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Native Title Act 1993 (Cth)

Federal Court of Australia Act 1976 (Cth)

Lands Acquisition Act 1978 (NT)

Griffiths v Lands and Mining Tribunal and Minister for Lands Planning and the Environment (2003) 179 FLR 241 discussed

Minister for Lands, Planning & Environment (2004) 14 NTLR 188 discussed

Griffiths v Northern Territory of Australia [2006] FCA 903 discussed

Griffiths v Northern Territory of Australia [2007] FCAFC 178 discussed

Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 referred to

Right to Life Association (NSW) Inc. v Secretary, Department of Human Services and Health (1995) 56 FCR 50 referred to

Fejo v Northern Territory (1998) 196 CLR 96 referred to

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

Western Australia v Native Title Registrar (1999) 95 FCR 93 discussed

Strickland and Nudding (on behalf of the Maduwongga People) v Native Title Registrar [1999] FCA 1089 discussed/followed

Kioa v West (1985) 159 CLR 550 cited

Minister for Agricultural Affairs; ex parte Miah (2001) 206 CLR 57 cited

SZBEL v Minister for Immigration (2006) 81 ALJR 515 cited

Griffith University v Tang (2005) 31 CLR 99 discussed

Martin v Native Title Registrar [2001] FCA 16 referred to

Craig v South Australia (1995) 184 CLR 163 cited

Northern Territory of Australia v Doepel (2003) 133 FCR 112 discussed/followed

Quall v Risk [2001] FCA 378 referred to

GABRIEL HAZELBANE, ADA GOODMAN, MILDRED MCGINNESS, JANE MCGREGOR, ADA CALMA AND EVA MCGREGOR (ON BEHALF OF THE WARAI AND KUNGARAKANY GROUPS v CHRISTOPHER DOEPEL AS NATIVE TITLE REGISTRAR AND THOMAS EDWARD PETHERICK, MAY STEVENS AND CAPTAIN WODIDJ (ON BEHALF OF THE EMU AND BLUE TONGUE LIZARD CLANS OF THE FINNISS RIVER BRINKIN GROUP)

NTD 9 OF 2006

MANSFIELD J

7 MARCH 2008

ADELAIDE (HEARD IN DARWIN)

THE COURT ORDERS THAT:

1.                  The decision of the Registrar of 3 May 2006 that the Town of Batchelor No 2 application be accepted for registration under s 190A of the Native Title Act 1993 (Cth) be set aside.

2.                  Leave to apply granted to the Town of Batchelor No 2 applicants in the event that they wish the Town of Batchelor No 2 application be referred back to the Registrar to reconsider whether to accept it for registration.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicants (whom I shall call the Town of Batchelor No 1 applicants) have applied under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) for an order setting aside a decision of the first respondent the Native Title Registrar (the Registrar) by his delegate given on 3 May 2006.

2                     The Registrar’s decision concerned an application for a determination of native title under s 61 of the Native Title Act 1993 (Cth) (the NT Act) (matter NTD 21 of 2005) brought by Thomas Petherick, May Stevens and Captain Wodidj over an area of land in the Town of Batchelor.  I shall call them the Town of Batchelor No 2 applicants.  That application was instituted on 29 August 2005 and amended on 26 March 2006.  I shall call that application the Town of Batchelor No 2 application.  As amended, the Town of Batchelor No 2 applicants claim to have brought the application on the authority of the Emu and Blue Lizard Kungarakany group (the Town of Batchelor No 2 native title claim group). 

3                     The Registrar’s decision which is attacked by the Town of Batchelor No 1 applicants, was that the Town of Batchelor No 2 application be accepted for registration pursuant to s 190A of the NT Act.

4                     The effect of registration of an application for the determination of native title includes that the applicants obtain the benefit of the right to negotiate processes under sub-division P of Pt 2 of Div 3 of the NT Act.  Governments are required to give registered native title claimants (as defined in s 253) notice under s 29 of the NT Act of any relevant future acts that may affect the claimed area.  The Town of Batchelor No 2 applicants are each a native title party for the purpose of such negotiations, so registration of the Town of Batchelor No 2 claim gave them the right to object to such future acts.  There are other benefits of registration, prior to the determination of whether the claimed native title rights and interests exist in the claim area, but at present it is not necessary to refer to them.

5                     The Town of Batchelor No 1 applicants are also applicants in a separate application for the same land in the Town of Batchelor.  Their application was brought on 21 September 2001.  As that claim was first in time, I shall call it the Town of Batchelor No 1 application. By decision of the Registrar of 26 October 2001 the Town of Batchelor No 1 application was accepted for registration pursuant to s 190A of the NT Act.    The applicants in that application brought the application on behalf of the Warai and Kungarakany groups.  Since registration of their claim, they too have possessed the procedural rights which derive from registration, including the rights to be notified, and to object and to negotiate, in respect of future acts.  Future acts, it is argued, include proposed acts involving proposed acquisition of the claim area under the Lands Acquisition Act 1978 (NT).

6                     The Town of Batchelor No 1 applicants claim to be aggrieved by reason of the decision of the Registrar, because in essence there are now two groups of people with the same negotiation rights in respect of the same claim area by reason of the registration of both the Town of Batchelor No 1 application and the Town of Batchelor No 2 application.  Whether that is sufficient for them to qualify as persons aggrieved by the decision of the Registrar to accept for registration the Town of Batchelor No 2 application is a matter I shall address below.

BACKGROUND

7                     However, I note that the issue is not merely a theoretical one.  Two notices of proposal under s 43 of the Lands Acquisition Act to compulsorily acquire such native title rights and interests as exist in relation to parts of the Town of Batchelor have been issued by the relevant minister, the Minister for Lands, Planning and Environment of the Northern Territory.  The first was given on 8 May 2001, and the second on 22 June 2001 in respect of various allotments within the Town of Batchelor.  The Town of Batchelor No 1 applicants objected to those proposals pursuant to their procedural rights under the Lands Acquisition Act, but those objections were not received because they were made out of time.  The Minister then on 24 June 2002 signed the notice of acquisition and purported to acquire the native title rights and interests in respect of those pieces of land.

8                     Consequently, the Town of Batchelor No 1 applicants brought proceedings in the Supreme Court of the Northern Territory on 5 July 2002 in relation to the Minister’s refusal to extend time within which to have lodged their objections, and asserting that the purported acquisition notices were invalid and beyond power:  Hazelbane v Minister for Lands (Matters 100, 101, 102 and 103 of 2002 in the Supreme Court of the Northern Territory).  Following the institution of those proceedings, the Minister gave an undertaking to the Supreme Court not to proceed to grant interests in or to deal with or transfer the land the subject of those notices without giving notice to the Town of Batchelor No 1 applicants.  Those proceedings were then adjourned to a date to be fixed pending resolution of issues raised in related proceedings in which the same issue occurred.

9                     That same issue occurred in relation to proposals to acquire native title rights and interests, or certain of them, in the Town of Timber Creek.  On 31 July 2003, a judge of the Supreme Court of the Northern Territory decided that such notices were invalid as being beyond power in the circumstances:  Griffiths v Lands and Mining Tribunal and Minister for Lands Planning and the Environment (2003) 179 FLR 241.  That decision was reversed by the Full Court of the Supreme Court of the Northern Territory:  Minister for Lands, Planning & Environment (2004) 14 NTLR 188.  The High Court subsequently granted leave to appeal from that decision.  On 15 November 2007, judgment on the appeal was reserved.  It addresses questions as to whether s 43 of the Lands Acquisition Act permits the compulsory acquisition of native title rights and interests in land for the purpose of extinguishing native title in order to alienate land for the private benefit of another citizen; whether s 24MD of the NT Act permits the acquisition of native title rights and interests in land for the purpose of vesting the affected land in the Northern Territory freed and discharged of the native title rights and interests; and whether s 46 of the Lands Acquisition Act is repugnant to s 238 of the NT Act.

10                  In the meantime, an application for the determination of native title in respect of the Timber Creek township area has been heard and determined:  Griffiths v Northern Territory of Australia [2006] FCA 903 on 17 July 2006.  That decision was upheld by the Full Court:  Griffiths v Northern Territory of Australia [2007] FCAFC 178 delivered on 22 November 2007.

11                  In respect of the Town of Batchelor No 1 application, following a notice of intention of 1 July 2002, 11 persons apparently representing the same interests as the Town of Batchelor No 2 applicants in the Town of Batchelor No 2 application, were joined as respondents to the Town of Batchelor No 1 application (without prejudice to the right of any party to apply for an order that any such person cease to be a party to the proceeding).  They described themselves as becoming respondents to the Town of Batchelor No 1 application on behalf of eight clans known as the Finniss River Brinkin Group, namely the Long-neck Turtle, Red Catfish, Marri, Kangaroo, Werak, Goanna/Pulima, King Brown Snake, Emu and Blue Tongue Lizard clans.  One of those persons was Michael Anglitchi.  When the Town of Batchelor No 2 application was first instituted, he was one of the named applicants on behalf of the King Brown Snake clan, but following its amendment he was removed as an applicant and the King Brown Snake clan was removed as a clan or group on whose behalf that claim was brought.

THE REGISTRAR’S PROCESSES

12                  The Registrar, in deciding to accept the Town of Batchelor No 2 application for registration pursuant to s 190A of the NT Act, did not notify the Town of Batchelor No 1 applicants or their solicitors of the Town of Batchelor No 2 application, and did not seek submissions from them on whether that application should be accepted for registration.  Nor did the Registrar notify the Northern Land Council (NLC), which is the responsible native title representative body for the area, of that application or seek submissions from it on whether that application should be accepted for registration.  The NLC had, pursuant to s 203BE of the NT Act, certified the Town of Batchelor No 1 application as the representative body for the area in which that claim was made.  It thereby confirmed that it held the opinion that all the persons in that native title clan group had authorised the Town of Batchelor No 1 applicants to make that application and to deal with matters arising in relation to it, and that all reasonable efforts had been made to ensure that that application described or otherwise identified all the other persons in the native title claim group:  see s 203BE(2).  The Northern Land Council did not certify the Town of Batchelor No 2 application.

CONSIDERATION

Standing

13                  The Town of Batchelor No 1 applicants must satisfy the Court that they are persons aggrieved by the decision of the Registrar, before they have the standing to challenge the validity of his decision under the ADJR Act. 

14                  They contend that their interests are adversely affected by the Registrar’s decision, so that success in this application for review will result in a benefit to them, or relieve them of a detriment, to an extent greater than ordinary members of the public: see Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 75-76; Right to Life Association (NSW) Inc. v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 60-65.  That must be because the procedural rights which they obtain by registration of the Town of Batchelor No 1 application, as discussed above (see Fejo v Northern Territory (1998) 196 CLR 96 at 121-125; Strickland v Native Title Registrar (1999) 168 ALR 242 at 244-246), or the enjoyment of those rights and the extent to which they can be exercised, are restricted by the decision of the Registrar which gives the Town of Batchelor No 2 applicants equivalent procedural rights.

15                  In Western Australia v Native Title Registrar (1999) 95 FCR 93, Carr J decided that the State of Western Australia was a “person aggrieved” for the purposes of making an application for review under s 5 of the ADJR Act in respect of a decision of the Registrar to admit for registration a particular native title claim.  His Honour found that the adverse effect of registration upon the State so qualified it, because as owner of the land the subject of that particular native title claim, the State was restricted in its capacity to deal with its proprietary interest, and was obliged to submit to the statutory requirements of negotiation in respect of future acts under the NT Act.  Obviously, the impact upon an owner of land of an application for the determination of native title being admitted for registration under s 190A of the NT Act is different from the impact upon a person or persons in the position of the Batchelor No 1 applicants.  They are competing native title claimants whose claim has been registered, and not land owners. 

16                  One of the reasons Carr J reached that conclusion in Western Australia v Native Title Registrar 95 FCR 93 was that the government, being primarily responsible for the development and manner of use of the land the subject of that particular native title claim, had a “very close relationship with the subject matter” of the registration decision, and that the NT Act recognised that closeness by, for example, the requirement in s 66(2) of the Act not only that the State be notified of the application for registration, but also that it be supplied with all affidavits and documents in support of it:  see at [20].

17                  A similar obligation is imposed upon the Registrar under s 66(2A) of the NT Act in relation to the relevant representative body of the area covered by the application, in this case the NLC.

18                  I was referred by counsel for the Batchelor No 1 applicants to s 66(3)(a)(i) of the NT Act.  Under that provision, the Registrar is obliged to give notice containing details of an application for determination of native title to any registered native title claimant in relation to any of the area covered by the application which is being assessed for registration under s 190A.  I do not think that that provision operates to provide or enhance the status of the Batchelor No 1 applicants in this matter as persons aggrieved by the decision of the Registrar.  That is because s 66(3) commences by saying that it is generally subject to the section.  The Registrar’s obligation is specifically then explained or qualified, at least in terms of the time when it must be implemented, by s 66(6)(a).  Pursuant to s 66(6)(a), in the event of a claimant application, the Registrar must not comply with sub-section (3) until the Registrar has decided, in accordance with s 190A, whether or not to accept for registration the claim made in the application.  In my view the position is clear.  Not only is the Registrar not required by s 66(3)(a)(i) to have given notice of the Batchelor No 2 application to the Batchelor No 1 applicants, as registered native title claimants in respect of the same claim area, until the Registrar has decided whether or not to accept the Batchelor No 2 application for registration, but he is positively directed not to do so by s 66(6)(a).

19                  Consequently, if the Town of Batchelor No 1 applicants are to establish that they are persons aggrieved by the decision of the Registrar, they must do so by some circumstance un-unsupported by, and perhaps even informed by, s 66(6)(a).

20                  In my view, the procedural rights which they obtained by registration of the Town of Batchelor No 1 application are not, in terms, diminished by the fact of the acceptance for registration of the Town of Batchelor No 2 application.  Their procedural rights under the Act remain the same.  But, at a practical level, it is said that the enjoyment of those procedural rights is diminished because the persons with whom they have rights of negotiation would also have to deal with the Town of Batchelor No 2 applicants who would possess equivalent rights of negotiation.  The outcomes of negotiations in relation to a future act or future acts which might be the subject of such negotiation would, it is argued, in a practical sense have to be shared or may have to be shared between the two sets of registered applicants.  In my view, as a matter of commonsense, that is likely to be correct.  In such negotiations, the person or entity who is the potential beneficiary of the future act is unlikely to negotiate in a way which would give each of the negotiating registered native title applicants the same benefits as if there were only one group of registered native title applicants with whom those negotiations should be conducted.  To put it somewhat crudely, the potential fruits of the negotiations would probably be shared rather than doubled.

21                  Upon that basis, in my view, the Town of Batchelor No 1 applicants have demonstrated that their interests are adversely affected by the decision of the Registrar to accept for registration the Town of Batchelor No 2 application.  The potential benefits or advantages which they enjoyed before that decision, by reason of the Town of Batchelor No 1 application having been accepted for registration, would be diminished so they would have suffered a disadvantage or detriment to an extent greater than the ordinary members of the public:  Onus v Alcoa of Australia Ltd at 75.  In Strickland and Nudding (on behalf of the Maduwongga People) v Native Title Registrar [1999] FCA 1089, at [23] French J remarked upon the extent to which overlapping native title claims had impacted upon the imposition of those claims, and upon the administration of the right to negotiate the process.  I think his Honour’s remarks are consistent with the conclusion to which I have come.

22                  For those reasons, in my view, the Town of Batchelor No 1 applicants have standing to challenge the decision of the Registrar.

Procedural Fairness

23                  The first basis upon which the Town of Batchelor No 1 applicants challenge the validity of the Registrar’s decision is that, in the circumstances, the Registrar was obliged to extend procedural fairness to them, and that he did not do so.

24                  They assert, and I accept, that had they been notified and accorded the opportunity to provide a submission regarding the question of whether the town of Batchelor No 2 application should have been accepted for registration pursuant to s 190A of the NT Act.  They either directly or through the NLC would have provided anthropological and other material to the Registrar’s delegate which (they assert) may have influenced the decision of the Registrar through his delegate to conclude that the town of Batchelor No 2 application should not have been registered, and indeed legally could not be registered.  They have identified to a degree the nature of that material in the evidence on this application.  At present, I do not need to go into it.

25                  Certain principles are clear.  When a statute confers a power on a public officer, the exercise of which may affect a third person’s rights or interests, that person is entitled to procedural fairness until that entitlement is excluded by express terms or by any necessary implication:  Kioa v West (1985) 159 CLR 550; Minister for Agricultural Affairs; ex parte Miah (2001) 206 CLR 57.  The way in which procedural fairness should be provided in any particular circumstance depends upon the nature of the decision of the statutory framework in which it is made:  SZBEL v Minister for Immigration (2006) 81 ALJR 515.  In this matter, if the Town of Batchelor No 1 applicants were entitled to procedural fairness (as they claim), the opportunity to make written submissions and to present material to the Registrar would have been an appropriate step for the Registrar to have taken.  They seek no more than that.

26                  In my view s 66 of the NT Act, for the reasons I have given above, proceeds on the basis that a decision to accept for registration a native title claim under s 190 not only may, but must, be made before competing registered native title claimants in respect of the same claim area are notified of the competing claim.  In Griffith University v Tang (2005) 31 CLR 99 Gummow, Callinan and Heydon JJ at 117-118 referred to there generally being a relationship between the questions of standing and, in the context of procedural fairness, the right to be heard.  However, in my view s 66(6)(a) makes it plain that in the normal course a competing registered native title claimant is not entitled to be given the opportunity to be heard when the Registrar is considering whether to accept for registration a native title determination application over the same area of land.  The mere fact of having standing to challenge the Registrar’s decision does not mean that the Town of Batchelor No 1 applicants were entitled to the opportunity to make submissions to the Registrar and to present material to him when he was considering such a decision.

27                  However, there are particular features in the present matter which take the position further.  The Town of Batchelor No 1 applicants were in fact aware of the Town of Batchelor No 2 application, and that the Registrar would in due course consider whether to accept it for registration.  The NLC, as the relevant representative body for the area covered by both applications, was entitled to be given a copy of the Town of Batchelor No 2 application and other documents relating to it pursuant to s 66(2A) of the Act.  That may be how the Town of Batchelor No 1 applicants came to learn of the later application.  The NLC had certified the Town of Batchelor No 1 application.  The solicitors acting for the NLC were the same solicitors as were acting for the Town of Batchelor No 1 applicants.  Those solicitors had indicated a desire to make a submission to the Registrar on whether the Town of Batchelor No 2 application should be accepted for registration.  There was then an e-mail exchange between the Registrar by his officers and those solicitors on 1 December 2005 in which it was acknowledged that such a submission was to be made, and that such a submission would be made after the proposed amendment to the Town of Batchelor No 2 application.  The officer of the Registrar indicated that the time within which the submission should be made and material presented would be notified to the NLC once the amendments had been effected.  I accept that, on the evidence, the proposed submission in opposition to the potential registration of the Town of Batchelor No 2 claim was delayed until after the proposed amendment of that claim and that the Registrar gave notification that the Registrar was considering whether to accept for registration the amended Town of Batchelor No 2 application.  I also accept, as I have said above, that had such a submission been made it would have raised significant material for the Registrar’s consideration relevant to whether the Town of Batchelor No 2 application should have been accepted for registration.

28                  It is that combination of particular circumstances which, in my view, gave rise to a legitimate expectation on the part of the Town of Batchelor No 1 applicants and an obligation on the part of the Registrar that he would give the NLC and its solicitors notification that he was considering whether to accept for registration the Town of Batchelor No 2 application and a time within which to take the opportunity to make submissions and to provide information in relation to it.  I am mindful of the fact that relevant communications on 1 December 2005 were between the solicitor for the Town of Batchelor No 1 applicants and for the NLC on the one hand, and an officer of the Registrar, but referred only to a submission from the NLC.  In my view, there was such a coincidence of interest between the Town of Batchelor No 1 applicants and the NLC in the present circumstances, a coincidence which was apparent to the Registrar from the Town of Batchelor No 1 application having been certified by the NLC, that the opportunity to make a submission and to present additional information was one which was an entitlement to procedural fairness which covered both the NLC and the Town of Batchelor No 1 applicants.

29                  It is accepted that that opportunity was not provided by the Registrar.

30                  In my judgment, therefore, there was a failure to accord procedural fairness to the Town of Batchelor No 1 applicants in the particular circumstances before the decision was made by the Registrar to accept the Town of Batchelor No 2 application for registration.  The nature of the submission, and additional information, which may have been provided in response to such an opportunity might have affected the outcome of the Registrar’s decision.

31                  I accordingly propose to set aside the Registrar’s decision on that ground.

32                  I will briefly refer to the other two grounds upon which the Registrar’s decision is attacked.

Use of Information

33                  The Registrar was satisfied of the existence of a sufficient factual basis to assert the native title rights and interests claimed in the Town of Batchelor No 2 application, as required by s 190B(5).

34                  He reached that view in large part upon material prepared by the FRBG for the purposes of mediation in the Court in relation to the town of Batchelor No 1 claim.  It was provided to the Registrar, apparently at the behest of the Town of Batchelor No 2 applicants.

35                  The Town of Batchelor No 1 applicants contend that the Registrar erred in having regard to that information, as its use was prohibited by s 53A of the Federal Court of Australia Act 1976 (Cth), and alternatively because they were not given an opportunity to address it.  The alternative contention is already dealt with in addressing whether the Town of Batchelor No 1 applicants were entitled to, and were accorded, procedural fairness.

36                  Section 53A provides:

Evidence of anything said, or of any admission made, at a conference conducted by a mediator in the course of mediating anything referred under section 53A is not admissible:

(a)        in any court (whether exercising federal jurisdiction or not); or

(b)       in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence.

37                  The Town of Batchelor No 2 applicants are entitled to provide additional material to the Registrar, in addition to that in the native title determination itself, to support the Registrar’s satisfaction of the requirements of s 190B(5):  see Martin v Native Title Registrar [2001] FCA 16.

38                  Section 53A does not prevent a party producing in evidence the same material as that presented at a mediation, provided of course it is relevant.  That is really self-evident.  If it were not so, no party could (for example) at a mediation refer to a statement of a proposed witness without the risk that that witness statement could not be adduced at a later hearing.  Of course, the fact that that witness statement was referred to at the mediation could not be adduced at evidence at the hearing.  Nor, generally, would it be relevant.  What was improperly before the Registrar (if any error was made) was the fact that what he called “the FRBG Submissions” were presented at the mediation.  But subject to their relevance, the FRBG Submissions could have been (and were) presented to the Registrar as material relevant to his satisfaction under s 190B(5).  And the Registrar simply recorded that he understood that material “to have been prepared for the purposes of mediation” in the Court.  He did not receive material as to what was said at the mediation, or of anything there said.  Had he actually received material that the FRBG Submissions were presented at the mediation, then s 53A may have been infringed.  But there was no apparent reliance by the Registrar upon the fact of their presentation to the mediation, so it would have been an error without consequence.  The material apparently is of a factual and conclusory nature, and was equally eligible to be presented to the Registrar as to a mediator.

39                  It is not necessary to consider, therefore, whether the role of the Registrar in considering whether to accept for registration the Town of Batchelor No 2 application is a proceeding attracted by the scope of s 53A(b) of the Federal Court of Australia Act. 

Authorisation

40                  The third principal contention of counsel for the Batchelor No 1 applicants is that the Registrar fell into error by identifying the wrong issue and asking himself the wrong question in addressing the procedural requirements in s 190C(2) and (4).  If that were made out, it would amount to reviewable error on the part of the Registrar:  Craig v South Australia (1995) 184 CLR 163 at 179.

41                  Section 190C(2) requires the Registrar to be satisfied that the application contains all the details and other information, and is accompanied by any affidavit or other document, required by ss 61 and 62.  That requires the Registrar to consider whether the requirements of ss 61 and 62 are met in the amended Town of Batchelor No 2 application.  For the reasons I expressed in Northern Territory of Australia v Doepel (2003) 133 FCR 112 at [32]-[37], I do not think the Registrar was required to go beyond the application in considering if that requirement was satisfied, and in particular was not required to undertake some form of merit assessment of the material. 

42                  The Registrar has worked through each of the requirements or elements of s 61 and s 62 of the Act, and assessed the application, that is the Town of Batchelor No 2 application, by reference to each of those requirements.  That involved a careful consideration of the Town of Batchelor No 2 application and of the affidavits which accompanied it, as required by s 62(1)(a).  He concluded that the application contained all the details and other information, and was accompanied by the documents, required by ss 61 and 62.  I have gone through the documents to which he referred, in the light of submissions by counsel for the Town of Batchelor No 1 applicants.  In my view, the Registrar’s conclusion was reasonably available to him.  I do not think he is shown to have misunderstood the law or to have asked himself the wrong question in addressing the requirements of s 190C(2). 

43                  The gravamen of the contention on behalf of the Town of Batchelor No 1 applicants was more focused upon the requirements of s 190C(4)(b).  It provides that the Registrar must be satisfied that the Town of Batchelor No 2 applicants are members of the native title claim group and are authorised to make the application, and to deal with matters arising in relation to it, by all the persons in the native title claim group.  The alternative provided by s 190C(4)(a) was not available because the NLC as the relevant representative body had not certified the Town of Batchelor No 2 application under Pt 11 of the NT Act.  The requirements of s 190C(4)(b) are then further explained by s 190C(5) which is in the following terms:

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

(a)        includes a statement to the effect that the requirements 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.

44                  The Registrar noted the definition of authorisation in s 251B of the NT Act.  He correctly identified that he was required to be satisfied of the matters set out in s 190C(4)(b).  He also identified the nature of that task as described in Doepel at [78].  As he said, the NT Act places fundamental importance upon ensuring that claimant applications are properly authorised:  see e.g. Quall v Risk [2001] FCA 378.  The Registrar said that the necessary statements for s 190C(5)(a) are made in the s 62 affidavits.  There are affidavits pursuant to s 62 of the NT Act of May Stevens, Thomas Edward Petherick and Captain Wodidj adopting or using the words of s 62 of the NT Act, and therefore apparently providing a foundation for the Registrar’s satisfaction that the requirement of s 190D(5)(a) of the NT Act had been met.  He then said that he was satisfied that there was material at Schedule R and in Attachments R1, R2 and R3 to the Town of Batchelor No 2 application which met the requirements of s 190C(5)(b) as that material briefly set out the grounds on which he should consider that the requirements of s 190C(4)(b) had been met. 

45                  The Registrar then turned from what he apparently considered to be the more formal requirements of s 190C(5) to the more substantive requirements in fact of s 190C(4)(b).  He noted that the application had been made in the first instance without legal assistance, and so he did not expect “the level of organisational or legal sophistication in the documenting of the process” of authorisation which might otherwise have been expected.  He said he had made some allowances for the form in which the relevant information had been provided, and regarded the information provided as both true and as evidence of satisfactory authorisation.  He noted that the Town of Batchelor No 2 applicants do not state whether the process by which they have been authorised to make the claim is traditional as contemplated by s 251B(a) or is an agreed and adopted one as permitted by s 251B(b).  He regarded the material as demonstrating an authorisation process that had taken place under s 251B(b).  He concluded that the material as a whole demonstrated that the Town of Batchelor No 2 claim group was aware of the necessity to appoint applicants to lodge and maintain their claim, and that that process required both formality and solemnity.  He said that the process of consultation with members of that claim group was wide, and ongoing for some time.  He referred again to the affidavits filed pursuant to s 62.  Upon the whole of that material, he was satisfied that the Town of Batchelor No 2 applicants are members of the native title claim group and are authorised to have made the application, and to deal with matters in relation to it, by all the other persons in that native title claim group.

46                  The Town of Batchelor No 2 application identifies that Thomas Edward Petherick and Captain Wodidj are members of the Emu Clan, and that May Stevens is a member of the Blue Tongue Lizard Clan.  It says that they have been authorised by the Emu and Blue Tongue Lizard Clans to make the application.  Schedule A to the application describes the composition of the native title claim group described as the Emu and Blue Tongue Lizard Clans, and specifically describes it as separate from the claim group in the Town of Batchelor No 1 application.

47                  Attachment R1 to the application is apparently a letter from Ray Petherick and Margaret On sent on 29 March 2005 to the clan members of the FRBG.  It sets out certain aspects of the process by which the point has been reached that the clan members may wish to pursue an application for the determination of native title, and if so would have to nominate one or two spokespersons and to agree to participate in the claim.  It foreshadowed then a period of consultation.  Attachments 2 and 3 are authorisations to make the claim on behalf of the Emu Clan and the Blue Tongue Lizard Clan respectively.  Under the heading “Authorised Persons” both Attachment 2 for the Emu Clan and Attachment R3 for the Blue Tongue Lizard Clan each record that “Mr Thomas Edward Petherick, Mr Raymond John Petherick, and Claude Narjic to be spokesperson interpreter in the courts representing for the FRBG”.  Attachment R2 then records the clan group representative spokesperson to be Captain Wodidj, who has signed that document, and refers to the authorisation having been given at a meeting on 6 July 2005.  Attachment R3 is in identical terms save that the Blue Tongue Lizard Clan group representative spokesperson is May Stevens, and she has signed the document on behalf of the Blue Tongue Lizard Clan group.  It refers to an authorisation meeting of 23 August 2005.  Each of Attachments R2 and R3 also records the Edward Ray Petherick as researcher is authorised to compile information to “forward to the courts and to mediate” with elders and legal advisors on behalf of the clan groups.  Attachment R4 is a statement apparently of Thomas Frederick Petherick explaining and describing the extensive consultation process he undertook in 21 field visits in relation to the proposed application between 2004 and 2005.  It refers then, after a series of consultations, to seven claims having been lodged for the determination of native title apparently under s 61 of the Act.

48                  As the Town of Batchelor No 2 claim group is said in the application to be identified by descent from ancestors, by spiritual, religious and physical connection with the claim area, and from occupation and resource use connection, and comprises those persons descended from seven named ancestors, the authorisation must come from that claim group.  The Town of Batchelor No 1 applications contend that the material available to the Registrar could not satisfy him that the Town of Batchelor No 2 applicants are members of that native title claim group and are authorised to make the application and to deal with matters arising in relation to it by all the other members in the native title claim group.  They submit that the material available to the Registrar did not reveal the basis for, and use of, any traditional decision-making process, although (they contended) the authorisation was said in the application to be a traditional one so as to attract s 251B(a) of the NTA because it referred to persons listed as elders who gave permission to bring the claim.  Secondly, they contend that the material in any event does not identify those persons who do have traditional authority to make such decisions and the basis for them having such decision-making authority.  They then contend that, if the process of authorisation is not a traditional one (as the Registrar found it was not) the material does not expose that all members of the native title claim group, that is the persons descended from the seven named apical ancestors, have agreed to and adopted a relevant decision-making process.  Finally, they contend that the material does not expose any authorisation from the native title claim group to the Town of Batchelor No 2 applicants, but purports to have “elders” authorising “the Woolaning Community family members to act on behalf of” the FRBG.  The reference to “the Woolaning Community family members acting on behalf of the FRBG” comes from Attachments R2 and R3.  Each commences by saying the named elders “gives permission in the presence of legal representative … to give authorisation to the Woolaning Community family members to act on behalf of “the FRBG to make an official Native Title Claim” for the determination of native title.  It then has separate headings for “Authorised Persons” and “Clan Group Representative Spokesperson”.  The summary of the contention is that the Registrar, therefore, has fallen into error in identifying a wrong issue and asking himself a wrong question in addressing the requirements of s 190D(4)(b) and s 190D(5) of the NT Act.

49                  I understand the Registrar’s preparedness to overlook shortcomings in the Attachments to the Town of Batchelor No 2 application because they were not professionally prepared.  I agree that it was appropriate to look at the substance of those documents.  However, the substance of those materials, on a proper reading, must be adequate to satisfy the Registrar of the requirements of s 190C(4)(b).

50                  In my mind, the material presented did not have that quality.  I accept it is sufficient to support a conclusion that each of the Town of Batchelor No 2 applicants is a member of one or other of the clans comprising the claim group.  It is also sufficient to satisfy the Registrar that Captain Wodidj and May Stevens are “Clan group representative” spokespersons for the Blue Tongue Lizard Clan and the Emu Clan respectively.  But neither of those documents, having regard to their contents and to the documents accompanying them, is in my view sufficient to satisfy the Registrar that each of the Town of Batchelor No 2 applicants is authorised to make the application by the other persons in the claim group.  In my view, it is simply not clear as to whether those three persons, or the two clan group representative spokespersons, or Edward Ray Petherick, or Thomas Edward Petherick, or a combination of those persons are the persons authorised to make the application and deal with matters arising in relation to it by the members of the Town of Batchelor No 2 claim group.  The affidavits of each of the Town of Batchelor No 2 claimants which simply take in, in a direct quote, the terms of s 62(d) are not, in the circumstances sufficient to overcome that inadequacy in the material.

51                  Had that requirement been capable of being satisfied, I think the Registrar’s analysis of the material to be satisfied that the claim group had authorised the bringing of a claim under s 251B(b) was available.  It indicated a very extensive and prolonged process of consultation on an informal basis, culminating in the two meetings referred to in Attachments R2 and R3.  His analysis is not, in my view, inconsistent with the Town of Batchelor No 2 application because I do not consider that its description of the claim group does not necessarily point to an authorisation in accordance with traditional laws and customs under s 251B(a).

52                  However, the difficulty remains that the material could not satisfy the Registrar that the three Town of Batchelor No 2 applicants are the persons authorised by the claim group to make the application and to deal with matters arising in relation to it.  For that reason also, I consider the decision of the registrar to accept the Town of Batchelor No 2 application for registration under s 190A of the NT Act should be set aside.

ORDERS

53                  The decision of the Registrar of 3 May 2006 that the Town of Batchelor No 2 application be accepted for registration under s 190A of the NT Act be set aside.  I will give the Town of Batchelor No 2 applicants leave to apply in the event that they wish the Town of Batchelor No 2 application be referred back to the Registrar to reconsider whether to accept it for registration.

Associate:

Dated:         6 March 2008