FEDERAL COURT OF AUSTRALIA

Stock v Native Title Registrar [2013] FCA 1290

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The second respondents, if they wish to apply for a costs order, file and serve written submissions by 4pm on 13 December 2013 and, if costs are sought, the applicants have 14 days to file and serve submissions in response and the Court will thereafter make a decision on costs on the papers.

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

REASONS FOR JUDGMENT

OVERVIEW

1        This is an application, pursuant to s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), for judicial review of the decision of the first respondent (Registrar) to accept native title determination application WAD 22 of 2012 (Wunna claim) made by the second respondents on behalf of the Wunna Nyiyaparli people (Wunna claimants) for registration pursuant to s 190A of the Native Title Act 1993 (Cth) (NTA).

2        The applicants (Nyiyaparli claimants) say they are entitled to make this application because they are a “person who is aggrieved by a decision to which [the ADJR Act] applies” and contend that the Registrar (by her delegate), in accepting the Wunna claim for registration, made errors in law. Accordingly, the Nyiyaparli claimants seek an order setting aside this decision and an order removing the Wunna claim from the register of native title claims.

3        For the reasons which follow, the Court finds the Nyiyaparli claimants have standing to make the application but dismisses the application as no error of law by the Registrar is demonstrated.

BACKGROUND

4        The application for judicial review was filed on 13 July 2012. On 17 July 2012, the Registrar filed a submitting notice. The Wunna claimants were legally unrepresented until 19 February 2013, when a “notice of acting – appointment of lawyer” was filed. However, at the hearing on 27 February 2013, the Court was informed that the Wunna claimants were again no longer legally represented and that a notice of ceasing to act would shortly be filed. (In fact, this notice was not filed until 19 June 2013.) At the hearing, the Wunna claimants sought to rely on submissions filed on their behalf by their former solicitor on 21 February 2013.

5        On 26 February 2013, while the Wunna claimants were still legally represented, the Nyiyaparli claimants and Wunna claimants filed an agreed statement of facts. At the hearing, it was agreed by both senior counsel for the Nyiyaparli claimants and representatives of the Wunna claimants that the statement should be admitted into evidence, albeit supplemented with comments about specific paragraphs of the statement made by representatives of the Wunna claimants at the hearing. The agreed facts (with supplementary comments by the Wunna claimants, where relevant) can briefly be summarised as follows.

6        Prior to the registration of the Wunna claim, the Nyiyaparli claimants negotiated an indigenous land use agreement (ILUA) with Hamersley Iron Pty Ltd, Robe River Mining Co Pty Ltd, Hamersley HMS Pty Ltd and Hamersley Resources Ltd (Rio Tinto ILUA). The Rio Tinto ILUA covered the whole of the claim area in native title determination application WAD 6280 of 1998, in which the Nyiyaparli claimants are the registered claimants, including the area that is now the subject of the Wunna claim (Nyiyaparli claim).

7        Prior to the registration of the Wunna claim, the Nyiyaparli claimants negotiated an ILUA with BHP Billiton Iron Ore Pty Ltd for and on behalf of various related entities (BHPBIO ILUA). The BHPBIO ILUA covered the whole of the Nyiyaparli claim area, including the area that is now the subject of the Wunna claim.

8        A meeting of the Nyiyaparli claimants to authorise the Rio Tinto ILUA and the BHPBIO ILUA was held on 22 March 2012. This meeting authorised both ILUAs. However, representatives of the Wunna claimants contend that they were not invited to the meeting and did not attend the meeting. This was apparently because the Wunna claimants did not feel as though they should attend the meeting as they were about to have their own claim registered.

9        On 30 March 2012, the Wunna claim was accepted for registration and placed on the register of native title claims. It was then no longer possible to proceed to register the Rio Tinto ILUA and the BHPBIO ILUA as they covered the area of the Wunna claim and the Wunna claimants had not authorised the ILUAs.

10        The Rio Tinto ILUA and the BHPBIO ILUA were then re-negotiated to exclude the area of the Wunna claim (amended ILUAs). A meeting of the Nyiyaparli claimants to authorise the amended ILUAs was held on 23 May 2012. This meeting authorised the amended ILUAs. Representatives of the Wunna claimants contend that they were not invited to the meeting and did not attend the meeting.

11        The amended ILUAs were lodged for registration with the National Native Title Tribunal (Tribunal) and the Tribunal notified these in public notices.

12        Objections to the registration of the amended ILUAs have been lodged by the Wunna claimants. These objections assert that the amended ILUAs are part of comprehensive claim-wide participation agreements which are over the entire Nyiyaparli claim area and the Wunna claim area, and that the Wunna claimants need to negotiate and be parties to the amended ILUAs because they have a registered claim.

13        Since the registration of the Wunna claim, future act notices have been issued under s 29 and s 24MD(6B) NTA, for which both the Wunna claimants and the Nyiyaparli claimants have procedural rights under the NTA. However, representatives of the Wunna claimants contend that such rights have not been exercised by them.

GROUNDS OF JUDICIAL REVIEW

14        By the application for judicial review, the Nyiyaparli claimants seek an order setting aside the decision of the Registrar and an order directing the Registrar to amend the register of native title claims by removing the entry relating to the Wunna claim. In support of such relief, the Nyiyaparli claimants rely on the following grounds of review (as amended):

(1)    The Registrar erred in law by failing to accord natural justice and procedural fairness to the Nyiyaparli claimants by:

(a)    failing to provide copies of, or alternatively, the substance of, information, documents and submissions provided to the Registrar by or on behalf of the Wunna claimants in response to information and submissions provided by the Nyiyaparli claimants to the Registrar; and

(b)    failing to give the Nyiyaparli claimants an opportunity to comment or make further submissions in relation to such information, documents and submissions.

(1A)    The Registrar erred in law and failed to accord procedural fairness to the Nyiyaparli claimants, in taking the actions in ground 1(a) and ground 1(b), on the basis of a misunderstanding of the reasons of Mansfield J in Hazelbane v Doepel [2008] FCA 290; (2008) 167 FCR 325 (Hazelbane) at [25]-[28] and the law of procedural fairness.

(2)    The decision of the Registrar involved an error of law and was made without jurisdiction in that the Registrar did not, as or in the manner required by s 190B(5)(b) NTA, consider and decide whether the factual basis on which it was asserted that the claimed native title rights and interests existed was sufficient to support that assertion.

(3)    As a consequence of the errors pleaded in ground 2, the decision of the Registrar involved an error of law and was made without jurisdiction in that the Registrar could not lawfully decide, as required by s 190B(6) NTA, whether, prima facie, the native title rights and interests claimed could be established, in the absence of considering and deciding upon those issues.

(4)    Further, the decision of the Registrar involved an error of law and was made without jurisdiction in that the Registrar did not consider and decide, in accordance with the requirements of s 190C(4)(b) NTA, whether the Wunna claimants constituted all the members of a native title claim group as defined in s 61(1) and s 253 NTA.

15        The first issue for consideration, however, is whether the Nyiyaparli claimants have standing to seek judicial review.

STANDING

16        The Nyiyaparli claimants contend they are entitled to make this application under the ADJR Act, because they are a “person who is aggrieved by a decision to which [the ADJR Act] applies”. The Nyiyaparli claimants submit that the effect of the decision of the Registrar, and the registration of the Wunna claim, is that they have suffered a disadvantage or detriment to an extent greater than ordinary members of the public: Edwards v Santos Ltd [2011] HCA 8; (2011) 242 CLR 421 at [37].

17        The Nyiyaparli claimants submit that prior to the decision to register the Wunna claim they were the sole registered native title claimants for the area of the Wunna claim. The registration of the Wunna claim means that there are now two registered claimants that have future act rights under the NTA. As a result, agreements in relation to the grant of future acts will not be able to be made between the Nyiyaparli claimants, the grantee party and the State alone, but will also require negotiation with the Wunna claimants. Further, any agreements made could require a sharing of compensation payments with the Wunna claimants. Finally, the registration of the Wunna claim has the effect of preventing the Nyiyaparli claimants from registering ILUAs to which the Wunna claimants are not a party, as, pursuant to s 24CD(2) NTA, all registered claimants need to be a party to an ILUA.

18        The Nyiyaparli claimants contend that in similar circumstances in Hazelbane (at [20]-[22]) Mansfield J accepted that registered native title claimants had standing to challenge the decision of the Registrar to accept an overlapping claim for registration.

19        In response, the Wunna claimants submit that Hazelbane should not be relied on for the general proposition that registered native title claimants are “persons aggrieved” by a decision to register a subsequent, overlapping application. The Wunna claimants submit that there is no evidence that any interests of the Nyiyaparli claimants were adversely affected by the decision to register the Wunna claim.

20        In my view, the Nyiyaparli claimants have demonstrated a sufficient interest to bring their application for judicial review.

21        In Hazelbane, the applicants brought a native title determination application in respect of land in the Town of Batchelor in the Northern Territory on behalf of the Warai and Kungarakany groups (Town of Batchelor No 1 application). This application was accepted for registration by the Registrar pursuant to s 190A NTA. Subsequently, the second respondent brought a native title determination application in respect of the same land on behalf of the Emu and Blue Lizard Kungarakany group (Town of Batchelor No 2 application). This second application was then accepted for registration.

22        Mansfield J, at [20], commented that, in his view, the procedural rights which the applicants obtained by registration of the Town of Batchelor No 1 application were not, in terms, diminished by the fact of the acceptance for registration of the Town of Batchelor No 2 application. His Honour accepted a submission, however, that, at a practical level, the enjoyment of those procedural rights was diminished because the persons with whom the applicants had rights of negotiation would also have to deal with the second respondent, who would possess equivalent rights of negotiation. Mansfield J commented that in such negotiations, the person or entity who was the potential beneficiary of the future act would be 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. His Honour noted that, to put it somewhat crudely, the potential fruits of the negotiations would probably be shared rather than doubled.

23        On this basis, Mansfield J held, at [21], that the applicants had demonstrated that their interests were adversely affected by the decision 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.

24        In my view, the position of the Nyiyaparli claimants is relevantly analogous (if not identical) to the position of the applicants in Hazelbane. The facts which support this view are contained in the statement of agreed facts. Further, as I do not consider Hazelbane to be “plainly wrong” it should be followed: Undershaft (No 1) Ltd v Federal Commissioner of Taxation [2009] FCA 41; (2009) 175 FCR 150 at [86]. Indeed, with respect, I consider Hazelbane to correctly state the law.

25        Accordingly, in my view, the Nyiyaparli claimants have standing to seek judicial review of the decision of the Registrar.

GROUND 1 AND GROUND 1A

26        The Nyiyaparli claimants note that to establish these grounds of review, it is necessary for them to identify an entitlement to procedural fairness and the content of that entitlement in the particular circumstances, as well as the failure by the Registrar to act in accordance with the entitlement.

27        The Nyiyaparli claimants note the comments of Mansfield J in Hazelbane, at [25], that 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 unless it is excluded by express terms or any necessary implication.

28        These claimants submit that, as argued in the context of the standing issue, the exercise of the power of the Registrar to decide whether the Wunna claim should be registered affects their rights and interests. Further, that the NTA does not exclude an entitlement to procedural fairness, either expressly or by necessary implication.

29        The Nyiyaparli claimants contend that the content of the entitlement to procedural fairness in the present case is as stated by Rares and Jagot JJ in Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223 at [27]:

If the decision-maker determines that he or she has information that is, first, credible, relevant and significant and, secondly, apparently adverse to the interests of a person who will be affected by the decision, then, ordinarily, procedural fairness requires that the decision-maker must give that person an opportunity to deal with the information. The person whose interests may be affected should be given the substance of the potentially adverse information, so that he or she may respond to it. (Emphasis in original.)

30        The Nyiyaparli claimants submit that the facts which demonstrate that the Registrar failed to act in accordance with this entitlement are as follows:

    On 27 January 2012, the Wunna claim was filed in the Court and shortly thereafter the Registrar was provided with a copy of the application.

    On 2 February 2012, the Registrar, in compliance with s 66(2A) NTA, provided the Yamatji Marlpa Aboriginal Corporation (YMAC), as the representative Aboriginal/Torres Strait Islander body for the area covered by the Wunna claim, with a copy of the application and accompanying documents. YMAC, the solicitors for the Nyiyaparli claimants, then informed these claimants of the application.

    On 27 February 2012, pursuant to instructions, YMAC provided the Registrar with submissions, information and documents to take into account in deciding whether to accept the Wunna claim for registration. On 13 March 2012, further information was provided by YMAC to the Registrar. All documents provided on behalf of the Nyiyaparli claimants were then provided by the Registrar to the Wunna claimants so that they could provide further submissions or documents. The Wunna claimants did provide additional submissions, information and documents to the Registrar.

    By an email dated 26 March 2012 to a case manager at the Tribunal, YMAC enquired as to whether they were entitled to obtain copies of the additional information provided by the Wunna claimants. By a letter dated 28 March 2012, YMAC was informed that the Nyiyaparli claimants were “not entitled” to receive copies of this additional information.

31        Accordingly, the Nyiyaparli claimants submit, they did not get an opportunity to respond to this additional information. The Registrar (by her delegate), however, relied on this additional information in deciding to accept the Wunna claim for registration. As a result, they were denied procedural fairness.

32        Moreover, the Nyiyaparli claimants contend that the Registrar, in making the decision not to provide the additional information to the Wunna claimants, was operating under a mistaken view of the duty to provide procedural fairness.

33        The Nyiyaparli claimants refer to the existence of two guiding documents that the Registrar (or delegate) uses in registration test decisions: the “Registration Test Procedures” dated May 2012 (Registration Test Procedures) and the “Handbook for Registration Delegates of the Native Title Registrar” dated 3 September 2009 (Handbook for Registration Delegates). Section 6.2.3 of the Registration Test Procedures provides:

Procedural fairness must be provided to third parties if the registration test decision could be adverse to their rights or interests unless the entitlement is excluded by express terms or by any necessary implication.

…

Ordinarily, persons with an existing application, where the claim area geographically overlaps, in part or in whole, the claim area of a claim to be tested, are not entitled to be afforded procedural fairness, including an opportunity to make submissions in relation to the claim to be tested. This is because that entitlement has been excluded by the [NTA]. Those persons would only be notified of the existence of the claim once the test is applied (s. 66(6)). This general principle may be modified by actions taken by the case manager or delegate which give rise to a legitimate expectation that the third party claim group would be afforded procedural fairness.

(Emphasis in original.)

In the footnotes to this section, the Registration Test Procedures cites Hazelbane at [25]-[28].

34        The Nyiyaparli claimants submit that this paragraph is an erroneous statement of the law and an erroneous statement of the principles established by Hazelbane. (These claimants submit that the Handbook for Registration Delegates (for example at p 23) also proceeds on the basis of the same errors.) Further, the Nyiyaparli claimants contend that the Registrar acted upon the erroneous view of the law expressed in these documents in stating that they were “not entitled” to receive a copy of the additional information provided by the Wunna claimants.

35        In response, the Wunna claimants submit that the Nyiyaparli claimants were not entitled to procedural fairness because the Registrar’s decision did not deprive them of any relevant proprietary rights or interests in the land the subject of the Registrar’s decision. The Wunna claimants draw attention to s 66(6)(a) NTA, which effectively provides that any registered native title claimant in relation to any of the area covered by a new application not be given notice of the application until the Registrar has decided whether or not to accept for registration the claim made in the application. This, they submit, is a positive legislative direction that registered claimants not be involved in the process of determining subsequent overlapping applications. Further, the Wunna claimants submit that there is no evidence of conduct by or on behalf of the Registrar inviting submissions from YMAC in its capacity as solicitors for the Nyiyaparli claimants; only as the relevant representative body under the NTA.

36        However, if the Nyiyaparli claimants were entitled to procedural fairness, the Wunna claimants submit there was no breach of the requirements by the Registrar. First, the Wunna claimants submit that communications made on behalf of the Registrar with YMAC made it clear that the additional information provided by the Wunna claimants would not be provided to the Nyiyaparli claimants and so these claimants could not have reasonably expected to be given a second opportunity to respond to the Wunna claim. Secondly, they submit that the specific prescription in s 66(6)(a) NTA is a strong indicator that, if registered native title claimants are entitled to be accorded procedural fairness in the making of the registration decision, its scope is to be restricted. Another indicator that the scope of procedural fairness is to be restricted is s 190A(2) NTA, which imposes a duty on the Registrar to use his or her best endeavours to make a decision on whether to register a native title determination application within four months of the notification day of a s 29 future act notice.

37        In my view, there was no denial of procedural fairness to the Nyiyaparli claimants in the circumstances of this case.

38        The broad statements of principle as stated by Mansfield J in Hazelbane concerning procedural fairness, with respect, are not controversial.

39        In Hazelbane, the Northern Land Council (as solicitors for the applicants) was informed by the Registrar that they would have an opportunity to make a submission on whether the overlapping claimant application should be accepted for registration. That submission was to be made after the application was amended and so the Northern Land Council was informed by the Registrar that they would be notified when the submission should be made. However, despite this indication, no opportunity to make a submission was afforded before the Registrar decided to accept the overlapping application for registration. In such circumstances, Mansfield J held, at [28], that the applicants had a legitimate expectation that they would have an opportunity to make a submission – that is, they were denied procedural fairness (at [30]).

40        In the present case, the Nyiyaparli claimants were afforded the opportunity to make submissions but were never promised the opportunity to make reply submissions (in fact, they were told they could not see the Wunna claimants’ additional information). In my view, the circumstances of this case are materially different from those considered in Hazelbane, and the Registrar did not, in the circumstances of this case, owe the Nyiyaparli claimants, through YMAC, any duty to ascertain their further view on the additional information submitted by the Wunna claimants. There was not, or at least cannot properly be said to have been, any “legitimate expectation” that a process of consultation would continue beyond that opportunity offered to comment. In that regard I generally accept the Wunna claimants’ submission that the scheme of the NTA does not comprehend a process of consultation in which another person with a relevant interest will be consulted at every step of the Registrar’s decision-making process.

41        For these reasons, ground 1 and ground 1A fail.

GROUNDS 2 AND 3

42        Section 190B(5)(b) of the NTA provides:

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:

…

(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;

43        The Nyiyaparli claimants submit that although the Registrar (by her delegate) correctly articulated the requirements of s 190B(5)(b), the process required was not engaged in when making the registration decision, as disclosed by the published reasons for decision.

44        The Nyiyaparli claimants contend, by way of example, that the delegate “correctly” identified (at p 47 of the reasons for decision) that the Wunna claimants must “show how the traditional laws and customs of the group give rise to the claimed native title rights and interests”: Gudjala People No 2 v Native Title Registrar [2009] FCA 1572; (2009) 182 FCR 63 at [29]. However, these claimants contend there is nowhere in the reasons any analysis of what the traditional laws and customs were, and how they gave rise to a claim for exclusive possessory rights over the area of the Roy Hill pastoral lease. The Nyiyaparli claimants draw particular attention to what they say is the lack of “factual assertions” that could satisfy the requirement that there was any traditional basis to Mr Bill Coffin and his family having exclusive rights in the whole Roy Hill pastoral lease area. They contend this is especially so in light of the many assertions, in the materials before the delegate, concerning the area being part of Nyiyaparli country and of the Wunna claimants being part of the Nyiyaparli group.

45        The Nyiyaparli claimants submit that as the Registrar (by her delegate) did not undertake the process required by s 190B(5)(b), the decision to register the Wunna claim involved an error of law.

46        Further, the Nyiyaparli claimants draw attention to s 190A(6)(b)(i) NTA, which provides that the Registrar must accept a claim for registration if, inter alia, the claim satisfies all of the conditions in s 190B. Therefore, the Nyiyaparli claimants submit, as the undertaking of the task mandated by s 190B(5)(b) was required for the delegate to exercise the jurisdiction in s 190A(6), the delegate did not have jurisdiction to accept the Wunna claim for registration.

47        Ground 3 is linked to ground 2. Section 190B(6) NTA provides:

The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.

48        The Nyiyaparli claimants submit that to properly decide whether the requirements of s 190B(6) were met, the Registrar (by her delegate) had to consider whether the Wunna claim satisfied the requirements of s 190B(5)(b) NTA. Therefore, the failure of the delegate to engage in the task required by s 190B(5)(b) also meant that the delegate did not properly engage in the task required by s 190B(6).

49        In response, the Wunna claimants contend that the Registrar (by her delegate) did consider and decide, to the correct standard, on the factual basis for the traditional laws and customs claimed to be exclusive to the Wunna claimants. This, they submit, is evident at pp 46-52 of the reasons for decision.

50        The Wunna claimants contend that the real complaint of the Nyiyaparli claimants is that the delegate should have applied a higher standard of consideration and satisfaction, more akin to a determination of native title. This standard, they submit, was not required or appropriate for the delegate to apply.

51        I do not consider any error of law is disclosed on either of these grounds.

52        One of the main objects of the NTA set out in para (b) of s 3 is to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings. Subdivision P of Div 3 of Pt 2 NTA creates a right to negotiate in respect of certain acts described as “future acts”. In this regard, s 29 NTA provides that before the act is done, notice of the act must be given to any registered native title body corporate that will be affected by the act and, unless there is such a body corporate, to any registered native title claimant and any representative body that will be affected by the act.

53        Thus, in circumstances where an application for determination of native title has not been resolved, a registered native title claimant will usually exercise the right to negotiate in appropriate circumstances.

54        A registered native title claimant is a claimant whose application for a determination of native title has been registered.

55        Where more than one application has been registered, there may be more than one registered native title claimant.

56        The provisions of the NTA that govern registration are therefore of some importance. Division 1 of Pt 3 NTA governs applications for native title and compensation. Section 62 sets out the information and other material that must be provided in relation to a claimant application. By s 62(1) a claimant application must be accompanied by an affidavit dealing with the relevant matters and must contain the details specified in subs (2). Section 62(2) requires a range of information including by para (e):

(e)     a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:

(i)     the native title claim group have, and the predecessors of those persons had, an association with the area; and

(ii)     there exist traditional laws and customs that give rise to the claimed native title; and

(iii)     the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;

57        Part 7 of the NTA then deals with the register of native title claims. Section 190A(1) requires the Registrar, if given a copy of a claimant application under s 63 or s 64(4), to consider the claim made in the application.

58        Section 190A(3) sets out the information to be regarded by the Registrar.

59        Section 190A(6) provides a test for registration, in the following terms:

(6)     The Registrar must accept the claim for registration if:

(a)     either:

(i)     the claim was made in an application given to the Registrar under section 63; or

(ii)     the claim was made in an amended application given to the Registrar under subsection 64(4) and subsection (6A) of this section does not apply; and

(b)     the claim satisfies all of the conditions in:

(i)     section 190B (which deals mainly with the merits of the claim); and

(ii)     section 190C (which deals with procedural and other matters).

60        Section 190B deals with the registration conditions about the merits of the claim. Section 190B(5) deals with the factual basis for claimed native title, in the following terms:

(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.

61        The Nyiyaparli claimants contend that the Registrar (by her delegate) erred as a matter of law in being satisfied that, for the purposes of s 190B(5), there was a factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion, particularly the assertion that there exists traditional laws acknowledged by and traditional customs observed by the Wunna claimants that give rise to the claim to native title rights and interests.

62        Before going further, it is pertinent to note, as set out above, that s 190B in many respects reflects the requirements of s 62 NTA. In relation to the particular propositions pressed by the Nyiyaparli claimants, the direct relationship between the requirement in s 62(2)(e) and s 190B(5) should be noted.

63        Section 62(2)(e) only provides that “a general description” of the factual basis upon which the assertions are made is required to be set out in the claim. That must be borne in mind when the question is addressed whether there was material before the Registrar (by her delegate) upon which the delegate could have been satisfied in this case that the factual basis asserted in respect of the claimed native title rights and interests was sufficient and whether the delegate properly approached the consideration process.

64        In that regard, it must be borne in mind that the provisions of the NTA dealing with registration are not, nor could they be, concerned with the proof that native title exists.

65        Observations to similar effect were made by the Full Court in Gudjala People No 2 v Native Title Registrar [2008] FCAFC 157; (2008) 171 FCR 317 (Gudjala FC) where, at [92], the Court said that the fact that the detail specified by s 62(2)(e) is described as “a general description of the factual basis” is an important indicator of the nature and quality of the information required by s 62.

66        The Court said that, in other words, it is only necessary for an applicant to give a general description of the factual basis of the claim and to provide evidence in the affidavit that the applicant believes the statements in that general description are true. The Court added:

Of course the general description must be in sufficient detail to enable a genuine assessment of the application by the Registrar under s 190A and related sections, and be something more than assertions at a high level of generality. But what the applicant is not required to do is to provide anything more than a general description of the factual basis on which the application is based. In particular, the applicant is not required to provide evidence of the type which, if furnished in subsequent proceedings, would be required to prove all matters needed to make out the claim. The applicant is not required to provide evidence that proves directly or by inference the facts necessary to establish the claim.

67        The Wunna claim application specified five individuals (the named applicants) as the “applicant” for the purposes of the NTA, “on behalf of the Wunna Nyiaparli people”.

68        In Sch A the native title claim group is identified by reference to Att A. Attachment A specifies that the native title claim group comprises “the descendants of Bill Coffin (born c. 1903), excluding those persons listed in paragraph [2]”. Paragraph [2] then specifies a number of descendants who were stated to be excluded “because they do not have an unbroken chain of filiation to Bill Coffin as Wunna Nyiyaparli people”.

69        Schedule E contains a description of native title rights and interests, by reference to Att E. Subject to certain qualifications there set out, the rights and interests claimed include the right to live within the area claimed, the right to make decisions about the use and enjoyment of the area, the right of access to the area, the right to control the access of others to the area and the right to use and enjoy resources of the area.

70        Schedule F then deals with what in the application form is described as “general description of native title rights and interests claimed [see Act, s 62]”. This general description is provided by Att F. Attachment F contained some 23 paragraphs replete with footnotes referring to anthropological research, including that of Professor Tonkinson. At [10] of Att F it is stated:

10.    Bill Coffin (the named ancestor from whom the members of the native title claim group for this application are descended) was born at Roy Hill station circa 1903 [footnote omitted]. He was generally identified within the Western Desert society as a Nyiyaparli man whose traditional country was Roy Hill. Illustrative evidence of this is provided by an affidavit affirmed on 12 December 2011 by another member of the Western Desert society, eight-three-year-old Njamal man Ronald Walker…

11.    The members of the applicant believe that Bill Coffin obtained his Nyiyaparli identity through his paternal grandmother, a woman about whom little is presently known … and that her name was ‘Maggie’. However, the members of the applicant for the amended Nyiyaparli application WAD 6280 of 1998 filed in September 2005 were of the belief that Bill Coffin had been incorporated into the Nyiyaparli people, as evidenced by the fact that each of them swore affidavits in support of that application in approximately August 2005…

71        Attachment F at [15] states:

The particular native title rights claimed by the native title claim group in relation to the application area are group rights and interests which the members of the native title claim group for this application (who identify themselves as the ‘Wunna Nyiyparli’) are     recognised as holding under the traditional laws and customs of the Western Desert society. (‘You can only speak for land; not for [anyone else’s] land’ – Nyiyaparli elder Gordon Yuline [footnote omitted].) They hold these rights as persons with an unbroken chain of filiation to their ancestor Bill Coffin…

72        Then, at [16], it is said:

It is only descendants of Bill Coffin who are eligible to claim the right to speak for the application area…

73        By [23] of Att F it was said that other Nyiyaparli people have standing permission to access and live in the application area but they are privileges rather than rights and that the Wunna Nyiyaparli maintain the right to withdraw that permission under the laws and customs of Western Desert society.

74        In the reasons for decision, dated 30 March 2012, the Registrar (by her delegate), amongst other things, referred to Att F and noted [15] as well as [23].

75        The delegate on the basis of the information supplied considered that the information makes clear that, according to the terms of the application, those persons listed at subpara (a) to (e) of Att A are not part of the group who hold rights in the claim area under Western Desert laws and customs.

76        As to the satisfaction of s 62(2)(e)/s 190B(5), the delegate considered that although the general description must be in enough detail to enable a genuine assessment of the application, it does not need to be sufficient to satisfy the corresponding merit condition of s 190B(5), as discussed in Wulgurukaba People #1 v State of Queensland [2002] FCA 1555 at [19] and Gudjala FC at [90]. Thus, the delegate concluded:

I have examined the general description of the factual basis provided at Attachment F. It contains information in relation to each of the assertions described … it is, in my view, at a sufficient level of detail to enable a genuine assessment of the application at later stages of the registration test.

77        I do not consider that, for the purposes of this judicial review application, any error of principle in the application of the registration test may be discerned from the manner in which the delegate of the Registrar dealt with this particular question.

78        The point is generally made in the reasons for decision that the claim group are narrowly defined, relying on Western Desert law and tradition for the view that Bill Coffin and his immediate descendants are the only holders of native title rights and interests in the claim area. It is not for the delegate, or this Court on judicial review, to cavil with that traditional or anthropological view; if there are issues with it, they will usually be for the hearing of the claim. What is clear, for present purposes, is that a factual basis has been provided to support the assertion that there exists traditional laws acknowledged by and traditional customs observed by the claim group that give rise to the native title rights and interests that are claimed.

79        Whether or not the claim made is supported by evidence will only be determined at a hearing, if not resolved by other means at an earlier time.

80        The reasoning process of the delegate indicates the delegate understood the issues at stake, did not ask a wrong question, and did not fail to engage in an appropriate consideration of the factors relevant to this issue.

81        In a similar vein the Nyiyaparli claimants say that it was not open to the Registrar (by her delegate) to consider that prima facie at least some of the native title rights and interests claimed by the Wunna Nyiyaparli claimants can be established, for the purposes of s 190B(6).

82        In my view, that submission cannot be made out in the circumstances, for precisely the same reasons. Essentially the Wunna claimants say that they, and they only, hold the rights under Western Desert traditional law and custom to speak for the Roy Hill pastoral lease area, as descendants of Bill Coffin.

83        There are some obvious questions that arise on the Att F description, for example, what the relationship of the Wunna Nyiyaparli is to other Nyiyaparli. But that is answered by the statement in [23] that other Nyiyaparli do not have “rights” only “privileges” in the Roy Hill pastoral lease area. It is also answered by the appeal made in Att F to “Western Desert” law and custom, avoiding any reference to Nyiyaparli law and custom. That does not mean that the application did not meet the requirement of s 62(2)(e) and s 190B(5)(b) NTA.

84        For these reasons, grounds 2 and 3 fail.

GROUND 4

85        Section 190C(4) of the NTA provides:

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

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

Note:     An application can be certified under section 203BE, or may have been certified under the former paragraph 202(4)(d). A representative Aboriginal/Torres Strait Islander body may certify the application, even if it is only the representative body for part of the area claimed.

(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.

Note:    The word authorise is defined in section 251B.

86        The Nyiyaparli claimants submit that, as the Wunna claim was not certified by a representative body, the Registrar (by her delegate) was required to be satisfied that the Wunna claimants were authorised by all the other persons in the native title claim group to make the application and deal with matters arising in relation to it.

87        They note that the “native title claim group” is defined by s 253 and s 61(1) NTA as 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.

88        Therefore, the Nyiyaparli claimants contend, the delegate was required to consider and be satisfied that the persons described as the native title claim group in the Wunna claim truly constituted a “native title claim group” as defined in s 61(1). The Nyiyaparli claimants submit this task involves examining and deciding who, in accordance with traditional laws and customs, comprises the native title claim group. If the Registrar (or delegate) is not satisfied that the application has been made on behalf of a native title claim group, the application must not be accepted for registration: Risk v National Native Title Tribunal [2000] FCA 1589 at [30].

89        The Nyiyaparli claimants note that, in the present case, the Registrar (by her delegate) found (at p 23 of the reasons for decision) a basis for satisfaction that the claim group described in the Wunna claim includes all the persons who form part of the “native title claim group”, as that term is defined by s 61(1). This view was formed on the basis of what was said in Att F of the application, the works of anthropologists and the affidavits of claim group members. The delegate found, at p 22, that:

[T]his information provides cogent support for the claim that the Wunna Nyiyaparli are a subgroup (of both the Western Desert society and the Nyiyaparli people) which alone holds the claimed native title rights and interests.

90        The Nyiyaparli claimants contend, however, that the material relied upon by the delegate does not set out the basis for such a conclusion that the Wunna claimants alone possess the claimed rights and interests. In particular, it is said that there is nothing in Att F to indicate on what basis Bill Coffin and his descendants are said to be the only Nyiyaparli people who speak for the claim area.

91        Accordingly, the Nyiyaparli claimants submit, the Registrar (by her delegate) made an error of law and did not have jurisdiction to accept the Wunna claim for registration by reason of the failure to properly decide the question that s 190C(4)(b) required to be answered.

92        In response, the Wunna claimants repeat the substance of their submissions in relation to ground 2 and ground 3. The Wunna claimants submit that the Registrar (by her delegate) did consider the issue of the identity of the native title claim group and decided it, to the required standard, at pp 17-23 of the reasons for decision.

93        In my view, no such error by the Registrar (by her delegate) as that contended for is demonstrated.

94        Section 190C NTA deals with registration conditions about procedural and other matters.

95        Section 190C(4) has been set out above.

96        By s 190C(4)(b) relevantly the Registrar must 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.

97        In the Wunna claim application, the Wunna applicant says in para 2 of Pt A that it is entitled to make the application as persons authorised by the native title claim group to make the application pursuant to a decision-making process agreed to and adopted at a meeting of the claim group held on 7 May 2011.

98        The Nyiyaparli claimants take the view that there is nothing in Att F to indicate on what basis Bill Coffin and his descendants seek to be the only Nyiyaparli people who speak for the area the subject of the Wunna claimants claim and so, in accordance with established authority, it is not open to a subgroup to make a claim to an area without the authorisation of the wider group of persons who have interests in that area or may have interests in that area.

99        The Registrar (by her delegate) closely considered the submissions made, including by YMAC as solicitors for the Nyiyaparli claimants concerning the Wunna claimants merely being a subgroup of a larger Nyiyaparli group. At p 22 of the reasons for decision, the delegate noted that the application clearly relied on the traditional law and custom of the Western Desert recognising the Wunna Nyiyaparli as the land holding group of Nyiyaparli people which possesses the claimed native title rights and interests, referring specifically to Att F at [4], [15], [16] and [23]. The delegate noted that support both for the existence of the laws and customs and the proposition that the Nyiyaparli form part of the Western Desert society was provided in extracts from the works of expert anthropologists and in sworn affidavits of claim group members. In the light of that material the delegate concluded:

In my view, this information provides cogent support for the claim that the Wunna Nyiyaparli are a subgroup (of both the Western Desert society and the Nyiyaparli people) which alone holds the claimed native title rights and interests.

100        In my view, while the traditional and anthropological basis for the assertions made in the claim may be contestable, it is at a hearing they must be contested and the manner in which the Registrar (by her delegate) approached and considered the registration of the Wunna claim in this regard does not reveal any error in principle or application.

101        For this reason, ground 4 also fails.

CONCLUSION AND ORDERS

102        In these circumstances the application for judicial review should be dismissed.

Associate:

Dated:    29 November 2013