FEDERAL COURT OF AUSTRALIA

Wiri People v Native Title Registrar [2008] FCA 574

NATIVE TITLE – Registration of native title claim – Application for review of Native Title Registrar’s decision refusing registration – Whether Registrar erred in making decision – Proper construction of Registrar’s function under s 190C(4)(b) of the Native Title Act 1993 (Cth)

Held: The application is dismissed. The Registrar did not err in application of s 190C(4)(b).  Decision under s 190C(4)(b) is an administrative decision. In light of different requirements of sections 190C(2) and 190C(4)(b), principles applicable to decision of Registrar under s 190C(2)not relevant to decision of Registrar under s 190C(4)(b).  Section 190C(4)(b) requires Registrar to be satisfied as to identity of claimed native title holders. Registrar entitled under s 190C(4)(b) to look at information other than application to determine whether applicant authorised to make application by all the other persons in native title claim group. 

Native Title Act 1993 (Cth) s61, s62, s190A, s190B, s190C(2), s 190C (4)(b), s190D, s203BE, s253

Gudjala People #2 v Native Title Registrar [2007] FCA 1167cited

Northern Territory of Australia v Doepel (2003) 133 FCR 112distinguished

Risk v National Native Title Tribunal (2000) FCA 1589discussed 

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

Wakaman People No 2 v Native Title Registrar (2006) 155 FCR 107 cited

Western Australia v Strickland (2000) 99 FCR 33applied

LEN WATSON, VASSA HUNTER, NANCY RIEHL (JOINTLY, ON BEHALF OF THE WIRI PEOPLE) v NATIVE TITLE REGISTRAR and STATE OF QUEENSLAND

QUD 196 of 2007

COLLIER J

29 APRIL 2008

BRISBANE

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                     I have before me an amended application by Len Watson, Vassa Hunter and Nancy Riehl jointly on behalf of the Wiri People (“the applicant”) to review a decision of a delegate of the first respondent, the Native Title Registrar (“the Registrar”) not to accept the Wiri People #2 Claimant Application (QUD 6251 of 1998) (“the Wiri #2 Application”) for registration under section 190A Native Title Act 1993 (Cth) (“the Act”). The decision was made by the delegate on 24 May 2007. The jurisdiction of the Court to review a decision of the Registrar not to accept a claim for registration is enlivened by s 190D of the Act, with the Court being seized of broad powers pursuant to that section (Western Australia v Strickland (2000) 99 FCR 33 at 49-50).

2                     The relief sought by the applicant is as follows :

A.       An order setting aside the decision of the Registrar to not accept the Wiri #2 Application for registration effective as from 24 May 2007

B.        An order directing the Registrar to accept the Wiri #2 Application for registration and include in the Register of Native Title claims details of the application with effect from 24 May 2007

C.       Such other orders as the Court thinks just and necessary.

Background

3                     The Wiri #2 Application was first entered on the Native Title Register on 2 April 1998.  The application covered a broad area of country in Central Queensland, the eastern boundary of which abutted and extended to offshore islands beyond the coastline to the north and south of Mackay and the western boundary of which was located well inland of the coastline.

4                     On 30 September 1998 section 190A was amended to subject native title applications to a registration test. In 1999 and 2000 the Wiri #2 Application was amended to decrease the country to “all parcels of unallocated state land” within the original broad area of country.  Each amendment was subjected to the registration test and each amendment was successful in being registered.

5                     The Wiri #2 Application was again amended on 7 November 2006 and referred by the Court to the Registrar on 10 November 2006. The principal changes as a result of this amendment were :

·                    A re-instatement of the broad country claim intended when the application was first made in April 1998, with some reduction so as not to extend to any offshore islands;

·                    A new description of the native title claim group in the Wiri #2 Application, which continued to be generally described as the Wiri People but which is now specifically identified as the descendants of 10 sets of apical ancestors. This contrasted with the earlier description of the group as the descendants of 5 sets of apical ancestors, less a number of individuals said to be specifically excluded;

·                    Authorisation of a new applicant as a result of a fresh authorisation process undertaken in September 2006 by the native title claim group in the Wiri #2 Application.

Decision of Delegate of the Registrar

6                     In her decision the delegate of the Registrar observed that the re-instatement of the original broad country claim meant that the Wiri#2 Application now overlapped with another application for the Wiri People, namely the Wiri Core Country Claim application (QUD 372/06), which had been certified by the Central Queensland Land Council under section 203BE.

7                     The delegate of the Registrar found that the application met the requirements under ss 61, 62, 190B and 190C (5) of the Act. However because the Wiri #2 Application was not certified under s  203BE, s 190C (4)(b) required the Registrar to be satisfied that

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.

8                     The delegate found that the application failed to satisfy the requirements of s 190C (4)(b). In particular the delegate said at pages 23-24 of her Reasons for Decision:

The evidence that I have reviewed about the proper composition of the native title claim group is conflicting and contentious. The Wiri #2 applicant makes serious allegations against the CQLC in relation to the performance of its certification functions. These allegations are strenuously denied by the CQLC, who continue to act for the Wiri Core applicant and who have provided me with the details of the research they have undertaken in relation to the identity of the apical ancestors for the Wiri People. It is the position of the Wiri #2 applicant that it is not for the CQLC to impose a description of their group of society, but for the Wiri People themselves to define how they are to be described. The meeting notice... for the authorisation meeting at which the native title claim group description was finally agreed in fact only invited the very persons ultimately described in the Wiri #2 application. I do not accept that such a process can be seen as having some kind of binding or ultimate authority as to the identity who must authorise the applicant, pursuant to either s. 190C(4)(b) or 61 (1). I refer to O’Loughlin J in Risk at [60] where he said that a native title claim group is not established or recognised merely because a group of people (of whatever number) call themselves a native title claim group.

Justice O’Loughlin in Risk went on to say at [60] that it is incumbent on the delegate to be satisfied that the claimants truly constitute such a group, and the applicant should be seen to be authorised by all persons who relevantly hold the common or group rights (cf s61 (1)). And finally at [60] Justice O’Loughlin said that where the group named or described in the application is not the native title claim group defined in s.61 (1) but a part only of the group it becomes impossible to accept the application for registration.

It seems to me that the identity or composition of the Wiri People native title claim group is an intractable dispute of many years standing. I have conducted searches of the Tribunal’s records and see that the Wiri #2 application and the Wiri Core application are but just two of a number of applications that have been made over the years by differently described or differently composed groups of Wiri People. The dispute amongst those who claim to be Wiri is not one that I can decide or resolve in the course of this administrative decision as it is not my role to determine the identity of all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed in the area of this application.

The evidence about the identification of the native title holders is contentious and uncertain. In conclusion I cannot be satisfied that the group described in the application before me is the whole of the native title claim group, as that group is defined in s.61 (1). It follows then that I cannot be satisfied that the applicant 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.

Grounds of the application

9                     The applicant’s grounds for seeking review of the decision are as follows :

1.                  In circumstances where the Registrar was satisfied that :

(a)     the application contains all details and other information required by ss 61 and 62 and thereby satisfies the condition specified in s 190C (2) of the Native Title Act;

(b)     there was no previous overlapping claim group and the application thereby satisfies the condition specified in s 190C (3) of the Native Title Act;

(c)     the application meets the requirements for uncertified applications specified in s 190D (5) of the Native Title Act;

The Registrar erred in :

(A).   having regard to the matters mentioned at 2;

(B).   forming the opinion that the condition provided for by s 190C (4)(b) of the Native Title Act had not been satisfied;

and being satisfied that the application satisfied all other conditions provided for by ss 190B and 190C, the Registrar erred in not accepting the claim for registration under s 190A (6).

2.                  In forming the opinion that the application did not satisfy the condition provided for by s 190C (4)(b) of the Native Title Act, the Registrar erred in :

(a)     considering that the description of the native title claim group in the application is different to that described in another unregistered claimant application known as the Wiri Core Country Claimant Application (QUD 372 of 2006);

(b)     by taking into account and giving weight to :

(i)         information contained in the other application;

(ii)        the certification of the other application by the Central Queensland Land Council

(iii)       what the Registrar termed as details of research undertaken by the Central Queensland Land Council in relation to the other application.

3.                  The Registrar erred in not forming the opinion that the application and accompanying documents revealed that 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, and that the condition provided for by s 190C (4)(b) is thereby satisfied.

4.                  The Registrar erred in considering or having regard to information, including the following information, without first giving the Applicant an opportunity to answer, correct or contradict that information and thereby failing to extend an appropriate degree of procedural fairness to the Applicant :

(a)     Affidavit of Marilyn Duncan dated 15 February 2001

(b)     Affidavit of Eileen Beryl Pegler dated 17 February 2001

(c)     Affidvit of Graham Sauney dated 17 November 199 (sic)

(d)     Affidavit of Maxwell Sauney dated 7 April 1999

(e)     Affidavit of Charles Watson dated 8 April 1999

(f)      Letter from legal representative for Rick Wilson, Maureen Watson, April Wilson, Ross Wilson, Charlie Watson and Lilla Watson dated 7 February 2000

(g)     Letter from April Wilson dated 8 February 2000

10                  I note that ground 4 was subsequently abandoned at the hearing of the application.

Grounds 1 and 2

11                  The submissions of the applicant in relation to grounds 1 and 2 can be summarised as follows :

·                    The delegate misconstrued the principles set out in Risk, and, as a consequence, erroneously considered that she was required to adjudicate between differing descriptions of a native title claim group, and make a factual determination as to the “correct” description of the group. This function is reserved for the Court in native title proceedings;

·                    The delegate, because of her misconstruction of the principles in Risk, failed to appreciate that, in so far as the registration test is concerned, an assessment of the composition of a native title claim group is a function of the duty contained in s 190C (2), not s 190C (4)(b), and is limited to an assessment of the description of the claim group as it appears in the application and accompanying material; and

·                    Having been satisfied that the requirements of s 190C (2) were met, the only matter which the delegate was required to be satisfied of in relation to section 190C (4)(b) was whether the claimant group, as it was described in the Wiri #2 Application, had authorised the making of the application.

12                  In summary, the Registrar submitted in reply that s 190C (4)(b), on its proper construction, required the delegate’s satisfaction that the applicant was authorised to make the application by all the other persons in the native title claim group (as that phrase is defined in ss 253 and 61(1) of the Act) and this requirement involved consideration of the composition of the native title claim group. In other words, the Registrar’s role goes beyond merely accepting the correctness of an applicant’s assertion that the persons who, according to their traditional laws and customs, hold communal rights and interests comprising the particular native title claimed are confined to those named or described in the application.

Consideration

13                  The term “native title claim group” for the purposes of the Act is defined by s 253 which, so far as relevant, reads:

native title claim group means :

(a)      in relation to a claim in an application for a determination of native title made to the Federal Court - the native title claim group mentioned in relation to the application in the table in subsection 61 (1)

...

14                  So far as relevant for the purposes of this application the “native title claim group” in s 61(1) is as follows :

(1)       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

...

15                  The requisite approach of the Registrar to considering claims is found in s 190A, which provides:

(1)       If the Registrar is given a copy of a claimant application under section 63 or subsection 64 (4), the Registrar must, in accordance with this section, consider the claim made in the application.

...

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

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

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

(c)     to the extent that it is reasonably practicable to do so in the circumstances - any information supplied by the Commonwealth, a State or a Territory....

(4)       Without limiting subsection (3), information mentioned in that subsection may include information about current or previous non-native title rights and interests in, or in relation to, the land or waters in the area covered by the application

...

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

(a)     section 190B.... and

(b)     section 190C....

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

16                  Pursuant to s 190A, s 190C deals with procedural and other matters, and provided as follows:

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

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 ss 61 and 62

                        …

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

(a)     the application has been certified under Pt 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.

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

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

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

17                  Reading together ss 190A (6) and 190C (4)(b), the logical conclusion is that, unless the Registrar or his delegate is satisfied that 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, the Registrar or his delegate must not accept the claimant application for registration. The information which the Registrar or his delegate can consider in making a decision as to whether the claimant application should be accepted is defined broadly by s 190A (3), and includes not only information contained in the application and other documents provided by the applicant (s 190A (3)(a)), but also any information obtained by the Registrar as a result of any searches conducted by the Registrar of registers of interests (s 190A (3)(b)). The breadth of the information the Registrar can take into account pursuant to s 190C (4)(b) was recognised by the Full Court in Western Australia v Strickland at 52

18                  The decision of the Registrar to accept or reject an application is a purely administrative function, the decision depending upon whether or not such application satisfies the prescribed criteria (Gudjala People #2 v Native Title Registrar [2007] FCA 1167 at [15]). Similarly, the decision by the Registrar or his delegate that he is, or is not, satisfied of the requirement under s 190C (4)(b) is an administrative decision under the Act. As French J said in Strickland v Native Title Registrar (1999) 168 ALR 242 at 261 in relation to the concept of “satisfaction” of the Registrar under s 190B,

There is scope for evaluative judgment in an expeditious administrative process carried out by people with relevant specialist experience. It is not for the Court, in reviewing the Registrar's decision, to substitute its own view of the sufficiency of the native title rights and interests for those of the Registrar unless it can be shown that the Registrar's state of satisfaction is based upon some error of principle.

19                  Further, the Full Court in Western Australia v Strickland (2000) 99 FCR 33 at 53, in considering the state of satisfaction required under s 190C (4)(b), agreed with French J that the decision of the Registrar or his delegate should stand if the decision was reached on material available to the Registrar’s delegate, and it was not shown that the delegate had been informed by any error in principle in so doing.

20                  In the circumstances of this case the delegate, inter alia:

·                    was informed by the Central Queensland Land Council that, pursuant to s 203BE of the Act, it had certified another claim of the Wiri People, which overlapped and competed with the Wiri #2 Application, namely the Wiri Core Application;

·                    considered anthropological reports attached to the Wiri Core Application supporting the existence of wider native title claim group than identified in the Wiri #2 Application;

·                    after searching the Tribunal records, noted that the Wiri #2 Application and the Wiri Core Application were but two of a number of applications that had been made over the years by differently described or differently composed groups of Wiri People; and

·                    noted that the meeting notice for the authorisation meeting for the Wiri #2 Application invited only the very persons ultimately described as the native title claim group in the Wiri #2 Application.

21                  In these circumstances, it was open to the delegate to find that the relevant native title claim group was larger than the group identified in the Wiri #2 Application. The finding of the delegate that she was not satisfied that the applicant was 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 was, in my view, available on the material.

22                  In relation to grounds 1 and 2 of the applicant’s claim I consider that the applicant has itself misconstrued the basis of the delegate’s decision, and incorrectly described the principles on which the delegate was required to make her decision. I take this view for the following reasons.

23                  First, as I have already observed, s 190C(4)(b) does not confine the Registrar or his delegate to the statements made in the affidavit or the information provided in the application in reaching the relevant state of satisfaction : Western Australia v Strickland at 52. The existence and nature of, and information in, the Wiri Core Application, which had been before the Native Title Tribunal previously, was both available to the delegate and relevant to her consideration of whether the applicant in the Wiri #2 Application was authorised to make the application on behalf of all the other persons in the native title claim group.

24                  Second, in written submissions the applicant contended that the delegate erroneously considered that she was required to adjudicate between differing descriptions of a native title claim group, and make a factual determination as to the “correct” description of the group. However, it is clear from reading the delegate’s Reasons for Decision that the delegate carefully avoided making such a determination. Indeed, the delegate clearly stated that :

the identity or composition of the Wiri People native title claim group is an intractable dispute of many years standing.... The dispute amongst those who claim to be Wiri is not one that I can decide or resolve in the course of this administrative decision as it is not my role to determine the identity of all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed in the area of this application.

25                  While the delegate did consider at some length the fact, and nature, of the Wiri Core Application, there is no indication the delegate was adjudicating between that group and the group identified in the Wiri #2 Application. As I have already found however, it was open to the delegate, in reaching her decision under s 190C (4)(b), to take into consideration, inter alia, the existence of that overlapping and competing application, the fact that the native title claim group it described was broader than the description in the Wiri #2 Application, and the fact that it had been certified pursuant to s 203BE by the Central Queensland Land Council.

26                  Third, the applicant submitted that the delegate failed to appreciate that, in so far as the registration test is concerned, an assessment of the composition of a native title claim group is a function of the duty contained in s 190C (2), not s 190C (4)(b), and is limited to an assessment of the description of the claim group as it appears in the application and accompanying material. However in cl 29.24 of the Explanatory Memorandum to the Native Title Amendment Bill 1997 the point is made that s 190C (4)

relates to the identity of the claimants and is designed to ascertain whether they are the appropriate persons. (emphasis added)

27                  The applicant’s contention misrepresents the plain meaning of s 190C (4)(b) and gives it a meaning which is in a different form, and more restricted than, the expression as defined in the Act.

28                  Fourth, I do not accept the applicant’s argument that s 190C (4)(b) restricts the Registrar to considering whether he is satisfied that the applicant is authorised to make the application by the persons described in the application as the native title claim group. Indeed, this argument runs contrary to findings in other cases, including that of the Full Court (endorsing the decision of French J) in Western Australia v Strickland, that the Registrar or his delegate is not confined in s 190C (4) to statements made in the affidavit or the information in the relevant application.

29                  In my view the applicant’s argument confuses the terms of ss 190C (2) and 190C (4)(b). While there is obvious intersection between ss 190C (2) and (4), the matters of which the Registrar is required to be satisfied by each section are, in my view, quite different. In relation to s 190C (2), the Registrar must be satisfied as to the contents of the application and that it contains information required by ss 61 and 62 (cf Mansfield J in Northern Territory of Australia v Doepel (2003) 133 FCR 112 at [35]), whereas in relation to section 190C (4) the Registrar must be satisfied as to the identity of the claimed native title holders including the applicant.

30                  The applicant relied on Northern Territory of Australia v Doepel (2003) 133 FCR 112, where I note Mansfield J held in relation to s 190C (2)

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…

It is not suggested that the face of the application in this matter raises such difficulties. (at [36])

31                  However while Doepel may be authority that, for the purposes of section 190C (2), the Registrar is not required to look beyond the terms of the application (cf Wakaman People No 2 v Native Title Registrar (2006) 155 FCR 107 at 118), it does not necessarily follow that the same principle applies to the satisfaction required of the Registrar or his delegate by s 190C (4)(b). Indeed in the Wiri #2 Application, although the delegate was not satisfied as required by s 190C (4)(b),  after considering each of the requirements of ss 61 and 62 the delegate was satisfied that the Application contained all the details and other information required by those sections, and accordingly complied with s 190C (2). With specific reference to the native title claim group, the delegate observed :

There is nothing on the face of the description of the persons in the native title claim group to indicate that not all persons in the native title claim group are included in the description or that it is in fact a sub-group of the native title claim group for the area of the application. Having said that, I do have regard to information elsewhere before me in relation to this issue in my consideration of the authorisation condition under s. 190C (4)(b).

But with the authority of Doepel in mind, I do not consider this information under this condition...

32                  The approach of the delegate to the different requirements of ss 190C (2) and 190C (4)(b) was, in my opinion, correct.

33                  In my view the applicant is incorrect in submitting that Doepel is authority that, once the Registrar is satisfied of those matters under s 190C (2), in the case of an uncertified application the requirements of s 190C (4)(b) are met by the Registrar being satisfied that the claim group described in the application authorised the making of the application.

34                  Finally, I do not accept the applicant’s argument that the delegate misconstrued the decision of O’Loughlin J in Risk v National Native Title Tribunal (2000) FCA 1589.

35                  In that case an application was made by Mr Quall which stated that the native title claim group were eight “members of the Danggalaba Clan” who were all members of the one family. O’Loughlin J held that the delegate had erred in accepting the relevant application for registration. As his Honour pointed out, although the persons who claimed to be the native title claim group also claimed to be members of the Danggalaba Clan, they did not claim to be the only members of that Clan (at [40]). Further, as his Honour noted, it was apparent to the delegate that the family of eight was not the native title claim group - but, at most, only part of the relevant group (at [60]) - which comprised approximately 140-150 people. His Honour quashed the decision of the delegate on the basis that it should not have been accepted for registration. On reviewing the decision it is clear that his Honour was correct for at least two reasons relevant to the application before me - namely that:

(i)      the description of the native title claim group in the application before his Honour - clearly on its face a sub-group of a larger clan - did not comply with s 61 (1) and hence could not be satisfactory to the delegate for the purposes of s 190C (2); and

(ii)      because on the material before the delegate it was clear that the delegate could not be satisfied within s 190C (4)(b) that the applicant was authorised to make the application by all the other persons in the native title claim group.

36                  So explained, the finding of the delegate in the matter before me - relying on Risk -  that she was satisfied of the Application’s compliance with s 190C (2), but not satisfied of its compliance with s 190C (4)(b), is correct. Further, I do not agree with the submission of the applicant that it was clear from O’Loughlin J’s reasons that, notwithstanding the continued existence of the dispute between the relevant parties, if the purported native title claim group in the Quall application had been differently framed, the delegate could, lawfully, have accepted the application for registration. On the contrary - in my view it is clear from his Honour’s reasons that not only did the evidence indicate that the applicant was not authorised by all the other persons in the native title claim group, but a reframing of the application by the applicant to so contend (when he was clearly not authorised) would not have allowed the delegate to accept the application for registration (see in particular his Honour’s comments at [63]-[66]).

37                  Accordingly, in my view grounds 1 and 2 of the applicant’s claim cannot be substantiated.

Ground 3

38                  Ground 3 of the applicant’s claim relates to grounds 1 and 2, and raises no additional issues. This is clear from the terms of ground 3 itself, and the submission of the applicant that, had the delegate not misdirected herself regarding the principles in Risk, she would have been satisfied that the requirements of s 190C (4)(b) were met.

39                  I have already considered the decision of the delegate in relation to her state of satisfaction under s 190C (4)(b), and found that no error was made in the delegate’s reasons for decision.

40                  Like grounds 1 and 2, this ground also fails.

THE COURT ORDERS THAT:

1.         The application be dismissed.

Associate:

Dated:         29 April 2008