FEDERAL COURT OF AUSTRALIA

Corunna v Native Title Registrar [2013] FCA 372

THE COURT ORDERS THAT:

1.    The application for review filed on 17 July 2012 is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant in this proceeding comprises Mr Albert Corunna and six other persons who are members of the applicant of the native title determination claim brought on behalf of the Swan River People. The native title determination application is referred to as the Swan River People # 2 native title determination application. That application was filed with the Federal Court on 1 February 2011. On 15 April 2011, the application was not accepted for registration pursuant to s 190A of the Native Title Act 1993 (Cth).

2    On 17 February 2012, the Court granted the applicant leave to file an amended native title determination application, in terms of a proposed amended application which had been lodged with the Court on 25 November 2011.

3    On 29 May 2012, a delegate of the National Native Title Tribunal Registrar (the Registrar) determined not to accept the amended application for registration pursuant to s 190A(6B) of the Native Title Act. I will, henceforth, refer to the amended application as “the claim”.

4    The claim asserted native title rights and interests over both land and sea. The sea portion of the claim covers an area of 8,774 square km. It includes an area of the sea between the mainland and Garden Island, Carnac Island and Rottnest Island – islands that are only nine nautical miles off the shore of the mainland – and an area which extends into the sea west of Rottnest Island for a further 42 nautical miles. Therefore, the vast bulk of the sea portion of the claim is over the sea west of Rottnest Island. It is this latter aspect of the sea portion of the claim which is at the centre of the controversy in this application.

5    The delegate found that the claim did not meet the statutory conditions set out in ss 190C(3), 190B(5), 190B(6) and s 190B(7) of the Native Title Act. The delegate, on behalf of the Registrar, notified the applicant of her decision pursuant to s 190D(1) of the Native Title Act.

6    On 12 April 2012, the applicant applied to the National Native Title Tribunal (the Tribunal) pursuant to s 190E(1) of the Native Title Act, for the Tribunal to reconsider the claim.

7    Deputy President Mr John Sosso was appointed to constitute the Tribunal for the purposes of reconsidering the claim. I will, henceforth, refer to the Deputy President as the member, in accordance with the nomenclature used by the parties in argument.

8    On 6 June 2012, after the member had reconsidered the claim, the Tribunal gave a notice to the Registrar under s 190E(11), that the claim for registration should not be accepted. There was included with that notice, the member’s reasons for decision. The reasons recorded that the claim did not meet the statutory conditions referred to in ss 190C(3), 190B(5) and 190B(6) of the Native Title Act. The Registrar then gave notice to the applicant that the claim was not accepted for registration.

9    On 17 July 2012, the applicant, acting pursuant to s 190F(1) of the Native Title Act, commenced in this Court, an application for review of the Registrar’s decision. By that application, the applicant seeks to set aside the Registrar’s decision (being, in effect, the member’s decision) of 6 June 2012 on the grounds that:

In considering conditions under sections 190B(5)(a) and (b) of the Native Title Act 1993 (Cth):

1.    The Native Title Registrar erred in his interpretation of the relevant case law.

2.    The decision of the Native Title Registrar was manifestly unreasonable.

10    The references to the “Native Title Registrar” in the applicant’s review application is to be treated, and was treated by the parties, as being a reference to the member. I will, as did the parties, henceforth, refer to the decision as the member’s decision.

11    It is necessary to set out the provisions of s 190B(5) of the Native Title Act. That subsection provides:

(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.

the member’s decision

12    The applicant’s attack on the member’s decision is focused upon the member’s interpretation and application of the conditions for registration referred to in s 190B(5)(a) and s 190B(5)(b) of the Native Title Act.

13    As mentioned, the member, like the delegate, was not satisfied that there had been compliance by the applicant with those conditions.

14    In relation to s 190B(5)(a), the member found that the material provided by the applicant did demonstrate a factual basis sufficient to support the assertion that the claim group have, and their predecessors had, an association with the land area of the claim and the portion of the sea claim between Rottnest Island and the mainland. However, the member went on to find that the material provided by the applicant did not demonstrate a factual basis which was sufficient to support the assertion that the claim group have, and their predecessors had, an association with that part of the claim area over the sea area west of Rottnest Island.

15    This was fatal to the acceptance of the claim for registration. This is because the member found that it was necessary for the material to provide a factual basis sufficient to support the assertion that the claim group have, and their predecessors had, an association with the whole of the claim area. In support of that construction of s 190B(5)(a), the member referred to the following observations of Dowsett J in Gudjala People # 2 v Native Title Registrar [2007] FCA 1167 at [52] (Gudjala People # 2):

I do not mean that all members [of the claim group] must have such association at all times. However there must be evidence that there is an association between the whole group and the area.

16    Immediately thereafter, the member went on to say:

In short the test is not that there is evidence before the Delegate that each member of the claim group has an association over the whole area, but cumulatively, there is material before the delegate that shows an association between the whole group and the whole area of the claim. (Emphasis added)

17    In reaching his decision, the member had regard to the material that was before the delegate, which included affidavits sworn on 24 November 2011 by each of Ms Bella Bropho and Mr Albert Corunna. The member also had regard to materials which had not been before the delegate, namely, the applicant’s submissions dated 12 April 2012, the affidavit of Mr Corunna sworn on 18 April 2012 and Mr Corunna’s email sent on 27 April 2012.

18    The member recorded that Ms Bropho (one of the persons comprising the applicant) had deposed that her family had been turtle hunters. The member observed that this hunting was apparently focused on the Swan River coastal plain and that there had been no suggestion that the hunting of the turtles took place other than on the landward portion of the claim area.

19    The member mentioned that Mr Corunna also referred in his affidavit, sworn on 24 November 2011, to turtle hunting. The member observed that the only place where this was said to occur was the swamp across the Roe Highway from the Midland brickworks. The member said that Mr Corunna had also referred to fishing and this related to the landward portion of the claim area.

20    The member went on to observe that there was also a reference in Ms Bropho’s affidavit to Rottnest Island but the reference was ambiguous and could not be said to provide a solid basis for inferring that the claim group’s association with the island was traditional.

21    The member then considered Mr Corunna’s affidavit, sworn on 18 April 2012, and Mr Corunna’s email of 27 April 2012. The member referred at [88]-[92] of his reasons, to the contents of those documents in the following terms:

[88]    Mr Corunna deposed (para 4) to the Waugal, who “is our ancestor from the Dreamtime.” According to Dreamtime stories, the Waugal created fresh water, the running water which carved out the valleys and hills and made the streams, rivers and lakes. Members of the claim group are kalyeep (see [105a]) to their Country by the movements of the Waugal. Wherever the Swan River flows, Mr Corunna deposes the claim group has rights in those lands and waters. One of the Dreamtime stories (para 6) is that Garden Island, Carnac Island and Rottnest Island used to be connected to the mainland, and Mr Corunna’s ancestors are buried in the sand plains now covered by water. As custodians of the Swan River, that members of the claim group have a duty to protect the graves of their ancestors as well as the Swan River, including that portion which is said to be submerged under the sea, but which was originally carved out of the land by the Waugal.

[89]    Further, Mr Corunna deposed (para 7) that the Waugal moved through a deep channel that goes out to sea “further than Rottnest Island.”

[90]    In his email set out at [6], Mr Corunna states that the claim group has an interest in protecting the bed of the Swan River, which he states extends beyond Fremantle and beyond Rottnest Island. He said “Our Waugal created it and then caused it to be covered by water.”

[91]    Further, Mr Corunna also states that the claim group asserts “all of the rights and interests under Schedule E in relation to the three offshore islands in the claim area”. In this regard he refers to a statewide meeting of Lawmen on Rottnest Island in 1994. He said: “(W)e were entrusted with responsibility to look after the graves of their people on the island. This was because the Lawmen recognized that the islands were part of our Ancestral land. Out of this meeting we formed the Rottnest (Wadgemup) Island Deaths Group Aboriginal Corporation, and members of the claim group still work to protect its spiritual significance.”

[92]    In their letter of 12 April 2012, the persons collectively comprising the Applicant, also drew to my attention extracts from the Perth Gazette of 29 October 1836 and 20 April 1839 where there are references to the traditional owners belief that Garden, Carnac and Rottnest Islands were once connected to the mainland, and that the separation “was caused, in some preternatural manner, by the waugal.” (Original emphasis.)

22    The member concluded that the materials demonstrated that there were Dreaming stories that related to the waters immediately off the coast and the islands near the mainland. The member observed that the eastern point of Rottnest Island, for example, was only nine nautical miles from Fremantle. However, said the member, the boundaries of the claim extended far beyond Rottnest Island and the distance from the western point of Rottnest Island to the outer boundary of the sea claim was 42 nautical miles.

23    The member then went on to say at [98]-[100]:

[98]    The only material before me which suggested any type of association with this huge expanse of sea, are two very short statements by Mr Corunna. First at paragraph seven of Mr Corunna’s affidavit of 18 April 2012 he deposes: “the Waugal moves through a deep channel that goes out to sea, further than Rottnest Island.” Second in the email set out at [6] Mr Corunna asserts that the claim group has an interest in protecting the bed of the Swan River which it is said extends beyond Rottnest Island. It should be noted though, that Mr Corunna does not state how far beyond Rottnest Island the claim group’s interest extend [sic]. Nor is there any other material to support this assertion.

[99]    Accordingly, there is no further material which supports the claim group’s association with this area. The bulk of the 8,774 square kilometres of the sea portion of the claim area lies to the west of Rottnest Island, but there is simply a dearth of material establishing any association with this massive expanse of sea.

[100]    To sum up, I have before me almost no material showing an association (whether physical or spiritual) between members of the claim group and the bulk of the sea portion of the claim area. The sea portion of the claim area comprises the majority of the claim area; 8,774 square kilometres of the total area of 16,824 square kilometres. If the sea boundary of the claim was restricted to that part of the sea lying immediately off the coast and extending to the islands mentioned previously, then it may have been open to make a positive finding pursuant to s 190B(5)(a). However, that is not the case, and I am accordingly, unable to be satisfied that the requirements of s 190B(5)(a) are met. (Original emphasis.)

24    The paucity of the material in relation to the sea portion of the claim west of Rottnest Island, was also the basis upon which the member found that he was not satisfied that the claim met the standard imposed by s 190B(5)(b) of the Native Title Act. The member concluded at [116] of his reasons, as follows:

However, there is simply a dearth of material which could support a finding that the huge expanse of sea which forms part of the claim area is linked to the traditional laws and customs of the claim group. The absence of any evidence which would support the assertion that the traditional laws and customs of the claim group apply to the vast expanse of sea which forms more than half of the claim area, is an insuperable barrier to a positive finding pursuant to s 190B(5)(b).

25    Section 190B(5)(c) requires a consideration of whether there was a factual basis sufficient to support the assertion that the native title claim group had continued to hold the native title in accordance with their traditional customs. The member found that this condition had not been satisfied for the same reason which underlay his decision in respect of s 190B(5)(a) and s 190B(5)(b).

26    As a consequence of the findings that the member made in relation to the paucity of material provided in respect of that portion of the sea claim west of Rottnest Island, the member also found that the condition in s 190B(6) had not been met.

grounds of REVIEW

Ground 1

27    The first ground of review is that in considering conditions under s 190B(5)(a) and s 190B(5)(b) of the Native Title Act, the member made an error of law in his interpretation of the relevant case law.

28    The applicant contended that the member had misconstrued the observations of Dowsett J in Gudjala People # 2, referred to in [15] above. The applicant said that this misconstruction is revealed in the following observations that the member made immediately after having referred to Dowsett J’s observations:

In short, the test is not that there is evidence before the Delegate that each member of the claim group has an association over the whole area, but cumulatively there is material before a delegate that shows an association between the whole group and the whole area of the claim. (Emphasis added.)

29    The applicant contended that the member’s observations did not properly reflect the case law because the member had substituted the words “whole area” for the word “area” in Dowsett J’s observations. In so doing, said the applicant, the member had added an unwarranted gloss on the proper test which had been stated by Dowsett J in Gudjala People # 2 at [52], and which, said the applicant, had not been disapproved by the Full Court in Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 (Gudgala People # 2 (FC)), when the matter went on appeal.

30    Accordingly, contended the applicant, the member erred in applying a test which required the material submitted to show a factual basis sufficient to support the assertion that the native title claim group have, and their predecessors had, an association with the whole of the area of the claim.

31    In my view, the member did not make an error of law in determining that the appropriate test was whether the material provided demonstrated a factual basis sufficient to support the assertion that the native title claim group have, and their predecessors had, an association over the whole area of the claim.

32    The case which is most relevant to the circumstances of this case is Martin v Native Title Registrar [2001] FCA 16 (Martin).

33    In Martin, Ms Joan Margaret Martin and three other people who referred to themselves as the “Widi Mob”, lodged a native title determination application. A delegate of the Registrar did not accept the application for registration.

34    Ms Martin filed an application for a review of the delegate’s decision to this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth). There were a number of challenges made to the delegate’s decision but the challenge which is relevant to this case is that the delegate “misdirected” himself in relation to the application of s 190B(5)(a) of the Native Title Act. The relevant particulars of that ground of review are as follows:

The Delegate misdirected himself as to the meaning of the words “association with the area” used in s 190B(5)(a) by requiring that they necessarily mean an association with “all of the area of the land and waters” claimed, “the entirety of the land and waters claimed” or an association which “broadly covered” the area of the claim.

35    In Martin, the description of the factual basis on which it was asserted that the native title rights and interests existed, was set out in Sch E and Sch F of the amended application. French J (as his Honour then was), having set out the contents of the two schedules, went on to observe as follows:

23    The applicants were successful in satisfying that limb of the criterion under s 190B(5)(a) relating to ancestral association. They failed however to meet the criterion so far as it concerned the association of the current members of the native title claim group with the area under claim. That was because the delegate could not find a basis for a connection between the members of the native title group and all of the area under claim. It must be said at the outset that the description of the factual basis upon which the claimed native title rights and interests were asserted as set out in Schedule F was diffuse and general and would be unlikely, in the ordinary course, to satisfy the Registrar that it supported the assertions set out in s 190B(5). However the Registrar’s delegate in addressing this condition is not limited by the statements set out in the application and may refer to additional material – Western Australia v Strickland at 55. The provision of material disclosing a factual basis for the claimed native title rights and interests, for the purposes of registration, is ultimately the responsibility of the applicant. It is not a requirement that the Registrar or his delegate undertake a search for such material.

24    In this case the delegate found references in the statements provided by various members of the claim group to their association with particular areas concentrated around the centre of the claim area. Other more outlying areas were cited by the applicant as places of significance for Widi people or meeting places for elders from all over the Gascoyne/Murchison area but not necessarily those with which claim group members have maintained an association. The delegate also noted that the only place referred to within the additional area added to the claim in October 1997 was Three Springs. Overwhelmingly the places mentioned in the statements are those surrounding the towns of Morawa, Koolanooka and Perenjori. There was no evidence of association with the coastal areas claimed around Dongara, which was particularly relevant as the original claim was expanded to include that area. The very limited anthropological references similarly did not refer to that area. Additionally, no information was provided regarding association with the northern and eastern parts of the claim. The delegate observed:

22.    I am satisfied that the current claim group has a factually based association with at least parts of the claim area. There is, however, generally a paucity of information provided about current association and I am unable to infer from the material provided that association includes all of the area of land and waters where the particular native title rights and interests are claimed.

He expressed the conclusion on this aspect of s 190B(5) thus:

23.    On the information before me, I am unable to be satisfied that members of the native title claim group have, an association with the particular land and waters under claim that is sufficient to support the assertion of the existence of the native title rights and interests claimed.

25    The delegate was said to have erred in his failure to infer that the relevant association extended to all of the area of land and waters claimed. He was said to have misdirected himself as to the meaning of the word “association” by limiting it to a “physical presence” at a place which he then required to be demonstrated by the evidence of an individual’s personal attendance and requiring a repetitive physical presence in relation to each of the areas.

26    I do not read the delegate’s reasons as having so narrowly construed the concept of association. He looked to the positive material put before him asserting a factual basis for association and found that it disclosed association only with particular areas. If it be the fact that that material disclosed only physical association, that does not mean that he has wrongly construed the nature of the association that may be sufficient for the purpose of the recognition of native title. There was simply a lack of material to support an association, physical or spiritual, with the entire area claimed. He was not obliged to accept the very broad statements contained in Schedule F which have no geographical particularity. In my opinion the delegate did not err in his approach to the application of the condition in s 190B(5)(a). (Emphasis added.)

36    In my view, the observations of French J in Martin are germane to the issue which the member was required to consider in this case.

37    The observations of Dowsett J in Gudjala People # 2, on the other hand, were made in the context of his Honour dealing with a different issue. In that case, the question was whether all of the members of the claim group have, and their predecessors had, a continuing association with the claim area, or whether the claim group included some persons who did not.

38    More specifically, the question whether the claim group had shown an association with the whole of the claim area or only a part of the claim area, was not the context in which Dowsett J made his observations. The context in which Dowsett J’s observations were made is illustrated by the following passage at [51] of the judgment:

Even if it be accepted that all members of the claim group are descended from people who had an association with the claim area at the time of European settlement, that says nothing about the history of such association since that time. Some members of the claim group and their predecessors may be, or may have been, so associated, but that does not lead to the conclusion that the claim group as a whole, and their predecessors, were similarly associated.

39    In this review, there is no contention that there may be some persons included within the claim group who have not had a continuing association with the claim area since European settlement. Rather, the issue is whether the material provided a factual basis sufficient to support the asserted physical and spiritual association by the claim group with the entire area of the claim. This was also the issue which was before French J in Martin. As is evidenced from French J’s observations at [35] above, the requirement is to provide material which provides a factual basis sufficient to support the asserted association with the entire area claimed.

40    Accordingly, in my view, as I have said, the member did not err in his construction of the requirement imposed under s 190B(5)(a) of the Native Title Act. The observations of Dowsett J in Gudjala People # 2, to which the member referred, may not have been directly on point, but that did not result in any error on the part of the member in the construction of that section. Nor did it result in an error in the way he dealt with the conditions in s 190B5(b), nor, indeed, s 190B(5)(c).

Ground 2

41    The second ground of review is that the member’s decision was manifestly unreasonable.

42    By this ground of review, the applicant complained about the member’s finding that the material advanced by the applicant did not provide a factual basis sufficient to support the assertion of an association, whether physical or spiritual, by the claim group and their predecessors, with the whole claim area. The applicant complained that the member, without justification, treated the sea portion of the claim differently to the land portion of the claim. The applicant contended that the standard adopted by the member exceeded the standard for the detail required in the material provided in support of a claim identified by the Full Court in Gudjala People # 2 at [92]. The applicant said that the Full Court required no more than a “general description of the factual basis of the claim”.

43    As mentioned in [23] above, the material relied upon by the applicant, in support of the assertion of an association with the sea west of Rottnest Island, comprised two statements. The first statement, was that in accordance with the claim group’s beliefs and religion “the Waugyl moves through a deep channel and goes out to sea further than Rottnest Island”. The second statement, was that the claim group has an interest in protecting the bed of the Swan River which extends beyond Rottnest Island. The applicant contended that the member’s rejection of these statements in support of an assertion of an association with the whole claim area, placed an “unrealistic and absurd onus to demonstrate an association with the entire area”. Accordingly, said the applicant, the member’s decision was manifestly unreasonable.

44    In my view, the member was entitled to find that the quality of that material was not sufficient to demonstrate compliance with s 190B(5)(a). As French J said in Martin:

[The delegate] was not obliged to accept the very broad statements contained in Sch F which have no geographic particularity.

45    Further, the Full Court at [92] in Gudjala People # 2 (FC), provided further guidance than simply stating it was necessary for the applicant to provide a general description of the factual basis of the claim. The Full Court went on to observe that the general description must be in sufficient detail to permit a Registrar to make a genuine assessment of the application under s 190A of the Native Title Act and must “be something more than assertions at a high level of generality”. The material provided by the applicant in this case in support of the sea claim west of Rottnest Island was at a high level of generality and, significantly, lacked geographic particularity in relation to the boundaries of the sea portion of the claim west of Rottnest Island. The member’s decision was not manifestly unreasonable.

46    The second ground of review is dismissed.

47    It follows, that the application for review is dismissed.

Associate:

Dated:    24 April 2013