FEDERAL COURT OF AUSTRALIA

Strickland v State of Western Australia [2015] FCA 914

THE COURT ORDERS THAT:

1.    In WAD 90 of 2014, on the interlocutory application of the respondent filed 16 February 2015, the claimant application be dismissed pursuant to s 190F(6) of the Native Title Act 1993 (Cth) on the basis that it is unregistered and there is no reason why the claim should not otherwise be dismissed.

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

THE COURT ORDERS THAT:

1.    In WAD 77 of 2015, the application of the applicant filed 19 March 2015 to extend time in which to seek review in the Federal Court under s 190F of the Native Title Act 1993 (Cth) of the decision not to register the claimant application in WAD 90 of 2014 be dismissed.

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

REASONS FOR JUDGMENT

1    The Native Title Act 1993 (Cth) (NTA) provides for the registration of claimant applications made under the NTA.

2    While a claimant application may proceed to be heard and determined under the NTA if it is not registered, only the applicant of a claimant application which has been registered has the right to negotiate, under the NTA, in respect of future acts.

3    In this case, the applicant (or claimants), comprised of Marjorie May Strickland and Anne Joyce Nudding (the named applicants), filed a claimant application under the NTA on 17 April 2014 in respect of land and waters in the Eastern Goldfields region of Western Australia (claim area).

4    The claimant application (the Form 1) stated that the application was made on behalf of the descendants of Kitty Bluegum. The named applicants and the descendants of Kitty Bluegum are often described as or describe themselves as the Maduwongga people.

5    The named applicants are the granddaughters of Kitty Bluegum. Their father, Arthur Newland, was the son of Kitty Bluegum.

6    Other family relationships and antecedents are referred to below.

7    The claim made by the applicant is the latest of many which have been made in respect of the claim area. A number of earlier applications have either been dismissed or, in one case, withdrawn:

    WAD63/1998 (WC1994/003) filed on 19 April 1994, dismissed on 23 March 2010;

    WAD76/1997 (WC1995/011) filed on 6 April 1995, dismissed on 23 March 2010;

    WAD6207/1998 (WC1997/088) filed on 15 October 1997, withdrawn on 21 May 1999;

    WAD6237/1998 (WC1998/020) filed on 8 April 1998, dismissed on 23 March 2010;

    WAD76/1997 (WC1999/009) filed on 28 January 1999, dismissed on 23 March 2010; and

    WAD301/2010 (WC2010/014) filed on 14 October 2010, dismissed on 3 July 2013.

8    On 10 July 2014, a delegate of the Native Title Registrar refused to accept this latest claim for registration under s 190A of the NTA, finding that the application did not satisfy all of the registration conditions of ss 190B and 190C of the NTA. The claimants were given notice of the delegate’s decision on 21 July 2014 pursuant to s 190D(1) of the NTA.

9    On 13 September 2014, the claimants sought reconsideration of the delegate’s decision and provided further anthropological material, dated 30 August 2014, in response to the delegate’s decision.

10    A Member of the National Native Title Tribunal reconsidered the claim for registration under the NTA. In a notice dated 24 October 2014, the Member found that the conditions in s 190B(5) and (6) of the NTA were not satisfied, and so the Registrar should not accept the claim for registration.

11    The claimants did not then seek a review in the Federal Court, as they may have under s 190F of the NTA, within 42 days after notification of the Member’s decision pursuant to R 34.109 of the Federal Court Rules 2011 (Cth).

12    On 16 February 2015, the State of Western Australia filed an application that the claim (WAD90/2014) be dismissed pursuant to s 190F(6) of the NTA on the basis that it is unregistered and there is no reason why the claim should not otherwise be dismissed.

13    The claimants then filed an application, on 19 March 2015 (WAD77/2015), to extend the time to seek review in this Court and for a review to be conducted.

14    Both the application of the State and the claimants finally came on for hearing before the Court at the same time.

15    The State indicated that it relies on its application to dismiss the claim in the event the claimants are unsuccessful in their application for extension of time and review of the Member’s decision.

16    The claimants in turn concede that, if their motion to review the Member’s decision fails, their claim should be dismissed.

17    The State concedes that if the claimants are successful in their application for extension of time and review, its strikeout application should be dismissed but, in such an event, submit the claim should be listed for an early hearing.

18    The primary issue falling for consideration therefore is whether the claimants should be granted an extension of time for the filing of the application for review of the decision not to register their claimant application.

19    Should it be determined that there should not be an extension of time, then the second issue is conceded. Namely, that the application of the State to strike out the claimant application should be granted.

SHOULD THE CLAIMANTS BE GRANTED AN EXTENSION OF TIME FOR THE FILING OF THE APPLICATION FOR REVIEW?

20    Rule 34.109(1) of the Rules provides that an applicant may, within 42 days after the date of notification of a decision of the Registrar to refuse to accept a claim for registration, apply to the Court for a review of that decision under s 190F(1) of the NTA.

21    By R 1.39, the Court may extend the time fixed by R 34.109(1).

22    Typically, any application to extend time to make a substantive application requires consideration of both the reason or explanation for delay, and the merits of the substantive case that would be advanced if time is extended.

Explanation for delay

23    The affidavit of Mr Ronald William Bower dated 18 March 2015 sets out the factual circumstances which led to the claimants’ considerable delay in filing an application for review of the decision not to accept the claim for registration. In contending an extension of time should be granted, the claimants first point to the failure of their legal advisers to act promptly, in accordance with their instructions, immediately after the Member’s decision on 24 October 2014. Mr Bower in his affidavit acknowledges his delay in preparing the application and supporting affidavit after receiving draft documentation on 12 January 2015, despite instructions from the claimants to attend to it with priority. He says the principal reason for the late filing of the application is that the claimants rely on pro bono assistance to make this application, and says further that he is embarrassed by the time which it has taken him to complete the preparation of his affidavit.

24    The claimants further assert this application for review has reasonable prospects of success.

25    The claimants say there would be no identifiable prejudice to the State if the extension of time is granted to pursue the application for judicial review, however the claimants would suffer an injustice, for similar reasons to those alluded to in Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia (No 2) (2012) 203 FCR 550 at [11]-[13]; [2012] FCA 419, if the Court does not consider their application for review.

26    The State does not dispute the Court’s discretion to grant the claimants an extension of time for filing its application for review. However, the State points to the following reasons not to do so:

(1)    the gross extent of the delay (several months) and lack of explanation other than failures by legal representatives;

(2)    the reasonable inference the application was only made responsively to the State’s dismissal application under s 190F(6) of the NTA (and in fact was only attempted to be made immediately before the State’s application was to be heard); and

(3)    the prejudice to the State and others in the claim (WAD90/2014) remaining on foot and needing to be litigated.

27    The State says it has reached the concluded view, based on the proceedings and findings in Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1; [2007] FCA 31, and on its consideration of “the various failed native title claims” brought by the named applicants over the same area, that WAD90/2014 is without merit and should be programmed for trial if the claimants’ judicial review application succeeds.

28    In these circumstances, where the delay is, in a sense, not self-evidently justified, it is relevant to consider also the merits of the review application before exercising the discretion to extend the time for seeking review.

The merits of the case

29    The delegate initially found that the claim did not meet the conditions for registration contained in ss 190B(2),(5), (6) and (7) and 190C(2) of the NTA.

30    First, the delegate found that the claim did not satisfy s 190B(2) of the NTA, which provides:

Identification of area subject to native title

(2)    The Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.

31    The delegate said it was not understood what was intended by the final paragraphs of Schedule B to the application, by which the claimants excluded “from the area of land and waters covered by the application those areas of land and waters that were excluded from the area of land and waters included in the original applications WAG 76 of 1997 (WC 95/11), WAG 63 of 1998 (WC 94/3) and WC 98/20”. The delegate found this paragraph gave rise to confusion given the partial dismissal of application WAD76/1997 to the extent that it related to any land or waters also subject to application WAD6005/1998: see Wongatha.

32    Therefore, the delegate was not satisfied that the information contained in the application as required by s 62(2)(a) and (b) of the NTA was sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.

33    Secondly, the delegate found the claim did not satisfy the conditions of s 190B(5) of the NTA, which provides:

Factual basis for claimed native title

(5)    The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:

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

(b)    that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and

(c)    that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.

34    The delegate noted that the Registrar’s assessment is to “address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests”: see Northern Territory of Australia v Doepel (2003) 133 FCR 112 at [17]; [2003] FCA 1384.

35    In making this assessment, the delegate referred to a report by anthropologist and ethno-historian Dr Christine Mathieu dated June 2012, and one by anthropologist Dr Edward McDonald dated August 1998. The delegate also referred to a genealogy report prepared by Ms Strickland, the first of the named applicants.

36    In summary, the delegate found:

(1)    although there was a sufficient factual basis for the assertion that the native title claim group have an association with the area, the factual basis was not sufficient to support an assertion that their predecessors had an association with the area (the second part of the assertion found in s 190B(5)(a));

(2)    the factual basis was not sufficient to support the assertion 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 (the assertion of s 190B(5)(b)); and

(3)    the factual basis is not sufficient to support the assertion that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs (the assertion of s 190B(5)(c)).

37    It followed that the delegate was not satisfied that the claim satisfied the conditions of s 190B(5) overall.

38    As to the claimants’ predecessors’ association with the claim area, the claimants asserted that the apical ancestor, Kitty Bluegum, her father Johnny, and her siblings Jimmy and Minnie, had an association with the whole of the claim area at and before sustained contact between settlers and the Aboriginal people in the region from the 1890s.

39    The claimants relied on genealogies, contemporaneous field journal entries and maps produced by Norman Tindale in 1940 and 1974 as a result of interviews with Kitty Bluegum and others. Tindale’s maps were said to largely support the claimants’ understanding of Maduwongga boundaries, and reference was made to Tindale’s genealogy sheet 110 which contained a note next to Kitty Bluegum’s name, “Madu ‘wongga”, and identified Johnny as a “full blood” Aboriginal man of Edjudina, which is in the north-east of the claim area. Dr Mathieu noted that Walter Newland’s son, Walter “Gilly” Newland, had told the claimants his father (a European man) met Johnny in Coolgardie and Johnny later guided him to the Edjudina soaks.

40    Dr McDonald in his report argued that the Tindale genealogy indicates Kitty and Johnny were born in Edjudina, and when read with their estimated birth dates of 1879 and 1859, firmly places at least this Maduwongga family within Maduwongga country, as defined by Tindale, before sustained contacted with white settlers.

41    However, the delegate noted that Tindale’s map did not include a strip of land along the south-eastern boundary of the claim area (the area which was the subject of the earlier claim by the native title claim group in WA6237/1998, later combined into WAD76/1997). The delegate said that no material before her discussed in any detail the asserted association of the predecessors Kitty, Johnny, Jimmy or Minnie with this area, with the exception of the Pinjin area.

42    In this respect, the delegate referred to a handwritten note by Tindale on genealogy sheet 118 for Kitty: “Madu wongga. Linden, Mulline, Pinjin, Kanowna and nearly to Menzies. Came from East”. She also referred to a note by Tindale in his 1938-1939 field journals:

The Maduwongga are around Kanowna, extending to Pinjin, Linden in the north occasionally to Murrin Murrin and nearly to Menzies (recently). They originally came from the spinifex country to the east of the present location. They drifted in at the time of the first gold rush (middle 1890s).

43    Dr McDonald argued that these statements related merely to the fact that Kitty and Johnny were from the easterly reaches of the Maduwongga tribal area mapped by Tindale, around Edjudina. However, in the delegate’s view, this was nonetheless problematic in showing a sufficient factual basis for the assertion that the group’s predecessors had an association with the whole of the claim area, approximately 27,794 square kilometres.

44    The delegate noted the lack of any specific details about Johnny and Kitty’s asserted association with areas in the west, between Kanowna and Menzies, and the fact that Tindale was told by Kalamaia informants, Don Roundhead and his wife, Noona or Nuna, that Kalamaia country was located around Kanowna, Ora Banda, Callion, Davyhurst and Goongarrie, in the west of the claim area (although noting Dr McDonald challenged this evidence).

45    Thus, the delegate found that, at best, the information provided was only supportive of an assertion that the predecessors of the claimants had an association with the north-easterly parts of the claim area, and that it may have extended as far south-west as Kanowna and north to Menzies, Mulline and beyond. She found it appeared that the association was particularly strong around Edjudina in the north-east, where Johnny and Kitty are understood to have been born and where the family lived and worked for the Newland family on a pastoral station in the first decades of the 20th Century.

46    However, the delegate concluded that, in the face of the other information mentioned above, information gained from Tindale’s maps, genealogies and the passing down of information to the current claimants as to the boundaries of their country was not sufficient to support the assertion that the predecessors had an association with the whole of the claim area at and before the arrival of the settlers in the early to mid-1890s. Thus, the condition in s 190B(5)(a) was not satisfied.

47    In relation to s 190B(5)(b), the delegate also found that the factual basis was not sufficient to support an assertion that there existed traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to native title rights and interests.

48    The delegate emphasised information in Dr Mathieu’s and Dr McDonald’s reports indicating that, at the time of sovereignty, or at least when settlement took place, the society in the claim area probably observed laws and customs whereby local descent groups exercised rights in relation to particular estate areas. In particular, the anthropologists found that Kitty Bluegum and her relatives may have belonged to such a local descent group with rights and interests in the north-east of the claim area around Edjudina.

49    Further, the delegate noted that Dr McDonald in his report expressed uncertainty about the content of the laws and customs operating in the area before settlers arrived. Dr Mathieu preferred the Tindale model of territorial ownership existing at the higher level of the “tribe” rather than at the social or political level of the local descent group, family group or subgroup. She relied on several contemporaneous accounts of the prospector Uren and the prospector or explorer James Edward Tregurtha in support of the existence of classical or pre-sovereignty laws and customs as to inter-tribal relationships between the Maduwongga and their neighbours, to show that tribal boundaries were crossed according to established protocols, and to support the existence of a broader “tribal district” as well as “patrilocal descent groups” or “estates”.

50    In one account, Tregurtha recounted that he met a local Aboriginal man, Jacky, aged around 60 years, and they travelled east towards Kurnalpi (just outside a point located in the east of Tindale’s southern boundary). Tregurtha said that when they reached Carr Boyd’s rockhole, Jacky refused to go further as his tribal district did not go beyond that point, and described Jacky’s tribal territory as having extended from “Carr Boyd’s Rock-hole … to about ten miles south of Bulong, west to Gnarlbine and north to somewhere near Sibera, and east to Carr Boyd’s Rock-hole … taking in the swamp west of Coongarrie”.

51    The delegate also noted Dr Mathieu’s reliance on an article in the Kalgoorlie Western Argus in 1898 describing the journey of a revenge party from Kurnalpi to Broad Arrow and onwards by train to Menzies, said to show that in 1898 the eastern region of the claim area was the “locus of traditional politics and tribal resistance and that traditional violence came from the east”.

52    While the delegate acknowledged these materials point to the existence in the 1890s of the operation of law and custom that appears to be rooted in a pre-sovereignty society, she said none of the accounts talk about the Aboriginal persons referred to having a Maduwongga identity that relates to the whole of the claim area; nor do they stipulate that there was a tribal entity with boundaries matching those found on Tindale’s map. The delegate was of the view that the information did not provide a sufficient factual basis to support Dr Mathieu’s conclusions as to “territorial ownership”.

53    The delegate found that Dr Mathieu did not present information that linked Johnny and Kitty’s local descent group with the whole of the claim area, and that neither Dr Mathieu nor Dr McDonald explained how Kitty’s son Arthur Newland’s local descent group, with an estate around the country where his mother and grandfather (Johnny) were born in the easterly reaches of the claim area, translated into rights and interests in the whole claim area. On the best available evidence, the delegate found that the rights which Arthur inherited related only to the country of Johnny and Kitty’s local descent group. There was no material, in her opinion, to support the assertion that the laws and customs permitted a local descent group to enter, without permission, the estate of a neighbouring local descent group.

54    Further, as to s 190B(5)(c), the delegate was also not satisfied that the factual basis was sufficient to support the assertion that the native title claim group has continued to hold native title in accordance with the traditional laws and customs referred to above. Given she had found that the factual basis did not support the assertion that current laws and customs were “traditional”, or derived from the laws and customs of the pre-sovereignty society, it followed that the assertion in s 190B(5)(c) could not be supported.

55    Thirdly, the delegate found the claim did not satisfy the condition in s 190B(6) of the NTA, which provides:

Prima facie case

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

56    The delegate found that in the absence of a sufficient factual basis to support the assertions set out in s 190B(5)(a) to (c) it must follow that she could not consider that, prima facie, at least some of the native title rights and interests can be established.

57    Fourthly, the delegate found the claim did not satisfy the condition in s 190B(7) of the NTA, which provides:

Physical connection

(7)    The Registrar must be satisfied that at least one member of the native title claim group:

(a)    currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or

(b)    previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by:

(i)    the Crown in any capacity; or

(ii)    a statutory authority of the Crown in any capacity; or

(iii)    any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease.

58    The delegate referred to Gudjala People #2 v Native Title Registrar [2007] FCA 1167, where Dowsett J, at [89], indicated that an application which fails to satisfy the requirements of s 190B(5) will likewise fail this condition due to the requirement for material showing a “traditional physical connection”. The delegate found that “traditional” physical connection means a physical connection in accordance with the particular traditional laws and customs of the claim group, therefore the claim failed this condition as it did not satisfy s 190B(5)(b) and (c).

59    Finally, the delegate found the claim did not satisfy the condition in s 190C(2) of the NTA, which provides:

Information etc. required by sections 61 and 62

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

60    The delegate found the claim did not satisfy s 190C(2) in that there was not a sufficient general description of the factual basis for the assertion that the predecessors of claimants had an association with the area.

61    The delegate also found affidavits accompanying the application under s 62(1)(a) did not contain a statement as to authorisation to make the application following the wording of s 62(1)(a)(iv). The affidavits appeared to explicitly state that authority stems only from those persons in the native title claim group born in 1995 or earlier.

62    The Member conducted a reconsideration of the claim against each of the conditions contained in ss 190B and 190C in accordance with s 190E of the NTA. The claimants sought reconsideration of the claim on the basis of the content of Dr Mathieu’s addendum (to her report) dated 30 August 2014.

63    The Member, having independently assessed the material before him, did not disturb the non-contested findings of the delegate. The Member reached the same conclusions, finding that the application met the requirements mandated by s 190B(3), (4), (8) and (9) and s 190C(3) and (4).

64    The Member then turned to the contested findings of the delegate and considered each in turn, along with the claimants’ and State’s submissions in response to the delegate’s decision.

65    As to the requirement of identification of the area subject to native title under s 190B(2), and the delegate’s finding that purported exclusion of areas of land and waters from the claim area was uncertain, the Member found that, read in isolation, the relevant paragraph of Schedule B to the application may be understood to mean exclusions identified in the original applications identified as “WAG 76 of 1997 (WC 95/11), WAG 63 of 1998 (WC 94/3) and WC 98/20”. That was to say, not the applications as combined by the Federal Court and then partially dismissed, but the original applications unaffected by subsequent events. The Member disagreed with the delegate in that respect, and found that the information and map contained in the application were sufficient for the purpose of s 190B(2), in that it could be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land and waters.

66    As to s 190B(5)(a), the Member reached the same view as the delegate. He found that while the materials lent support to the sufficiency of the factual basis for the assertion of current association by the native title claim group with the area, the factual basis was not sufficient to support the assertion that the predecessors of those persons had an association with the claim area. Therefore the condition in s 190B(5)(a) was not met.

67    The Member noted the claimants’ submission that it is not for the delegate, or Member, to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may be adduced to establish the asserted facts.

68    The Member, like the delegate, formed the view that the factual basis is sufficient to support the assertion that the predecessors had an association over the eastern portion of the claim area (including the strip of country from Lake Raeside to Londonderry not seen in Tindale’s map), extending in a westerly direction. He accepted that, at least through their association with Edjudina and Pinjin stations, the eastern boundary and the north-east and south-eastern extremities are areas for which there were sufficient facts to support the predecessors’ association with the country. Further, the Member agreed with the delegate that the material was supportive of an assertion that the predecessors’ association could extend to Kanowna in the southern portion of the claim area.

69    The Member found, however, that even accepting the presence of Johnny, and possibly Jimmy, in Coolgardie, and the birth of Kitty’s daughter, Violet, in Kalgoorlie as sufficient to be satisfied of the requisite association, apart from Tindale’s map there was no material to support an association by identified Maduwongga predecessors with a large part of the north-western portion of the claim area.

70    The Member noted the delegate’s reference to Tindale’s “Kalamaia informants”, including Don Roundhead, who identified Kalamaia country to the west of the claim area. The Member said the claimants appeared to argue that despite being Kalamaia, Don Roundhead’s grandfather was a “naturalised” Maduwongga man, and that the north-west of the claim area was, at the time of substantial contact, Maduwongga country, supported by Tindale’s map. Dr Mathieu, in her addendum dated 30 August 2014, argued that Tindale concluded Don Roundhead’s grandfather was Maduwongga. She suggested that although Kalamaia, Don Roundhead’s grandfather married into the Maduwongga and subsequently claimed country in Maduwongga territory.

71    However, the Member found Don Roundhead’s grandfather did not remain in Maduwongga territory, that he is identified as Kalamaia by other Kalamaia persons today, and that his descendants do not identify as Maduwongga. The Member said the person most strongly associated with the north-west of the claim area in the materials was Don Roundhead’s grandfather, and there were no facts to support the assertion his association to country in the west came from being married to a Maduwongga woman. Further, if it was accepted that Jacky, mentioned in Tregurtha’s 1893 account, was a member of a Maduwongga patrilocal descent group, the extent of his country in the west on the materials was not so extensive as to associate his descent group with the whole of the north-west.

72    The Member also referred to Dr Mathieu’s explanation in her addendum about the ties of members of Kitty’s local descent group, as a patrilocal group of the Maduwongga, to the whole of the claim area, even though she may have identified as a person from the eastern region of the claim area.

73    The Member did not consider, as put by the claimants, that the delegate was permitted to make any findings of fact about the association of Kitty Bluegum’s children with the area, which could in turn provide a factual basis to support Kitty Bluegum’s association. The Member noted that while the facts around the association of Kitty’s children do reflect in some regard the historical nature of the association, he shared the view of the delegate that these asserted facts did not go to support the association of the “predecessors” to which s 190B(5)(a) refers.

74    Given the information regarding the location of the birth of Kitty’s children, the Member accepted the factual basis supported the assertion that Kitty was associated with areas to the east of the Kalgoorlie to Leonora Road, including areas with which it was suggested Jacky and Arthur Newland were particularly associated. The Member also accepted the factual basis was sufficient to support the assertion of an association with the areas in and around Coolgardie for the same reasons. However, he found that the material was not sufficient to support the assertion that the predecessors had an association with the remainder of the area, in the north-west.

75    Ultimately, the Member found there was “a dearth of material” that supports the association of these predecessors with the whole of the claim area. In particular, there was no material sufficient to support their association with the north-west of the claim area, despite the claimants’ submissions about Kitty Bluegum’s presence in Kalgoorlie and Kanowna for the birth of her children; the presence of Kitty’s father Johnny in Coolgardie when he first met Walter Newland; and the possible presence of Kitty’s brother, Jimmy, in Coolgardie. The Member found Dr Mathieu’s addendum did not provide additional information as to the predecessors’ association with the whole claim area, rather focusing on Kitty’s children.

76    As to s 190B(5)(b), the Member noted that he needed to be satisfied that the material before him was sufficient to support the assertion that the traditional laws and customs currently acknowledged and observed by the claim group are rooted in the traditional laws and customs of a society in existence at sovereignty over the area of the claim and which has continued in existence in a substantially uninterrupted form since sovereignty to the present day. The Member acknowledged it was not his role to engage in a “second guessing” exercise or to impose on an applicant too high a burden. The Member further noted he should not analyse material with a view to ascertaining its probative strength or weakness.

77    The Member referred to the delegate’s finding that a “common refrain” in the material was that the particular country within the overall Maduwongga tribal area to which the claim group have a connection is that of their father’s local descent group. Therefore, there was a deficiency in the factual basis as it was not sufficient to support the assertion that the relevant traditional laws and customs gave rise to a local descent group having rights and interests in country that was outside the boundaries of that patrilocal group.

78    The Member noted that Dr Mathieu’s addendum addressed in part these issues, explaining how the patrilocal groups fit within the “tribe” and what access or rights those members of the patrilocal group would have to the whole of the tribal territory.

79    However, the Member referred to his finding that the factual basis did not support the assertion that the predecessors were associated with the whole of the claim area, specifically the north-western parts. Further, the Member found there were insufficient facts to support the assertion that under the traditional laws and customs, Kitty Bluegum’s patrilocal group had rights in this part of the claim area. The Member noted the concluding part of s 190B(5)(b) is a reference to the area of the claim. Accordingly, the Member maintained that the claimants did not provide any factual basis to support the assertion that the claim group’s traditional laws and customs exist in relation to the north-west of the claim area, and the condition in s 190B(5)(b) was not met.

80    In relation to s 190B(5)(c), which requires consideration of whether there is a sufficient factual basis to support the assertion that the native title claim group have continued to hold the asserted native title in accordance with their traditional laws and customs, the Member again noted his view that there was an insufficient factual basis to support the predecessors’ association with all of the claim area. Consequentially, this condition was not satisfied either.

81    Therefore, the Member found the application did not satisfy the condition of s 190B(5).

82    The Member then turned to consider whether a prima facie case was made out in relation to at least some of the native title rights and interests claimed, pursuant to s 190B(6).

83    Taking into consideration all material before him, the Member agreed with the delegate that the application did not satisfy the conditions of s 190B(6) because the factual basis provided was insufficient to support the assertions in s 190B(5)(a) to (c), referring to the reasons of Mansfield J in Doepel at [126]-[127].

84    The Member noted the logical nexus between s 190B(5) and 190B(6), and said that it follows as a matter of course that if the factual basis for the claimed native title cannot be satisfied pursuant to s 190B(5), then a delegate would not be able to be satisfied that, prima facie, at least some of the native title rights and interests can be established: see Gudjala at [87].

85    In relation to s 190B(7) and the requirement of “traditional” physical connection with land or waters in the claim area, the Member found that all that s 190B(7) requires is for the delegate to be satisfied that at least one member of the claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application.

86    Therefore, on the detailed material provided regarding the factual basis for the assertion that the claim group and their predecessors have and had a traditional association with the eastern portion of the claim area, the Member was satisfied that at least one member of the claim group has a traditional physical connection with the claim area, and the requirement of s 190B(7) was met.

87    In relation to the delegate’s finding that the affidavits accompanying the action did not contain the statement required by s 62(1)(a)(iv), so the application did not satisfy s 190C(2), the Member disagreed. He found it was valid for a claim group to impose an age limit into their authorisation process, and the chosen words did not indicate the deponents had failed to direct their minds to the matters they must establish, rather, their words reflected the particular requirements of their authorisation but also essentially reflected the prescribed wording in s 62(1)(a)(iv).

88    As to the delegate’s view that the claim did not satisfy s 190C(2) because the application did not contain a general description of the factual basis as required by ss 62(1)(b) and 62(2)(e), the Member disagreed. The Member was satisfied that the details and information provided in the application amounted to a general description of the factual basis for the assertions of s 62(2)(e)(ii) and (iii), as well as s 62(2)(e)(i), and therefore s 190C(2) was satisfied.

89    Ultimately, the Member formed the view that the Registrar should not accept the claim for registration because he was not satisfied the claim met the conditions specified in s 190B(5) and (6).

Claimants’ submissions

90    The claimants note that in Gudjala People No 2 v Native Title Registrar (2008) 171 FCR 317; [2008] FCAFC 157 (Gudjala FC) the Full Court, at [87]-[89], described the nature of review by the Court under the NTA as follows:

    The Full Court of the Federal Court in Western Australia v Strickland (2000) 99 FCR 33 at [63] observed that an application for review under s 190D ‘has some similarity to an application for review of a decision made in a matter by an officer of the Court under power delegated by the Court’. Although the Native Title Registrar does not exercise a delegated power in determining whether he or she should accept a claim for registration, the decision to accept or not accept a claim is the exercise of ‘administrative power in respect of a matter in which the Court has, and is then exercising, jurisdiction.’

    The Court observed that a review under s 190D is not restricted to consideration and determination of a question of law. Section 190D(4) was said to make it plain that the review extends to a determination of issues of fact. Their Honours said (at [66] - [68]):

It seems to us it was Parliament’s intention that the right of review created in s 190D(2) would place before the Court the controversy constituted by the issues of fact and law raised between the parties. Upon a ground of review being established, appropriate orders may be made to do justice between the parties. Such orders are made in the Court’s discretion in the exercise of the original jurisdiction of the Court ...

The review may require redetermination of factual issues according to the material then available; it is not restricted to the material before the Registrar ...

Accordingly, at the time of review the Court may take into account events that have occurred since the decision under review was made.

    In Wakaman People No 2 v Native Title Registrar (2006) 155 FCR 107, Kiefel J applied the reasoning of the Full Court in Strickland 99 FCR 33 and characterised it thus (at [29]):

The legislation does not specify the nature or the extent of the Court’s review under s 190D(3) or impose any limitation upon the material that may be taken into account. Jurisdiction is conferred by s 190D(2) and (3) in the broadest of terms (at [64]). A review under s 190D is not restricted to considerations and determination of a question of law. Section 190D(4) makes it plain that the review extends to determinations of issues of fact. The NTA does not proceed upon the premise that determinations of fact in the relevant controversy have been settled by the administrative determination and that the only matter in respect of which jurisdiction is conferred upon the Court is any controversy on questions of law.

91    Until 1 September 2007, s 190D(2) to (4) of the NTA was in a broadly similar form to the current s 190F(1) to (3).

92    The claimants note that Collier J in Watson on behalf of the Wiri People v Native Title Registrar (2008) 168 FCR 187; [2008] FCA 574 discussed the nature of the Registrar’s role and a review of the Registrar’s decision, at [18]-[19]:

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 No 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.

Further, the Full Court in Western Australia v Strickland 99 FCR 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.

93    The claimants also refer to Evans v Native Title Registrar [2004] FCA 1070, where Nicholson J discussed the Court’s approach to a review as follows, at [35]-[38]:

The manner in which the Court should approach the review pursuant to s 190D(2) was authoritatively considered by the Full Court (Beaumont, Wilcox and Lee JJ) in Western Australia v Strickland (2000) 99 FCR 33. At [64] the Full Court said that the legislation does not specify the nature or extent of the review, or impose any limitation upon the material that may be taken into account so that the jurisdiction conferred by s 190D(2) and s 190D(3) is in the broadest of terms. The Court regarded it as important that such a review was not restricted to consideration and determination of a question of law. It said that the review proceeding enlivens the jurisdiction of the Court in respect of the whole of the matter, citing TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, 180-181 per Gummow J. As the Full Court in Strickland said at [66] the full controversy is placed before the Court; that is, the controversy constituted by issues of fact and law raised between the parties. If a ground of review is established then appropriate orders may be made to do justice between the parties.

The Full Court also said (at [67]) that the review may require redetermination of factual issues according to the material then available; it is not restricted to the material before the Registrar. As a consequence the Court may take into account events that have occurred since the decision under review was made.

It will be observed that this description of the function of the review is necessarily in contrast to the review which would arise had the application been pursued under the ADJR Act. An application in this latter form would have been one to review the legality of the decision-making process and would not have involved the Court freshly determining issues of fact or substituting its view of the correct or preferable decision for that of the decision-maker: Northern Territory of Australia v Doepel (2003) 203 ALR 385 at [29] per Mansfield J.

It is also to be borne in mind that a significant margin of appreciation should be allowed for the experience and detailed administrative knowledge of the Registrar and his delegates in making largely evaluative judgments on whether applications comply with the statutory conditions of registration: Strickland v Native Title Registrar (1999) 168 ALR 242 at [44] per French J, upheld on appeal in Western Australia v Strickland.

94    The claimants say the distinction between the process under s 190F of the NTA and a judicial review merely of the legality of the process is set out by Mansfield J in Doepel at [29] as follows:

It is of course necessary to bear in mind when considering those contentions the nature of the present application. As it is brought under the ADJR Act, it is of course an application to review the legality of the decision-making process. It does not involve the Court freshly determining the issues of fact or substituting its view of the correct or preferable decision for that of the decision-maker: see eg, Borkovic v Minister for Immigration & Ethnic Affairs (1981) 39 ALR 186 at 188; Hamblin v Duffy (No 2) (1981) 50 FLR 308 at 310. The review is unlike that under s 190D(2) of the NT Act in respect of a refusal to register a claim: cf Western Australia v Strickland (2000) 99 FCR 33. The grounds of review are those specified in s 5 of the ADJR Act.

95    The claimants also rely on Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, which concerned appeals and resulted in the Court distinguishing between: (1) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (2) an appeal by rehearing on the evidence before the trial court; (3) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (4) an appeal by way of a hearing de novo.

96    They submit that a review under s 190F of the NTA most appropriately fits under the third of the categories described above in Fox v Percy, as suggested in Western Australia v Strickland (2000) 99 FCR 33; [2000] FCA 652 (Strickland FC) and adopted in Evans.

97    The claimants submit that in this case, the Court has before it the same documentary evidence as was before the Member, and no allowance is required to be given in respect of the observation of witnesses. They say the Court is in as good a position as the Registrar’s delegate to decide the proper inference to be drawn from the undisputed facts.

98    In particular, the claimants submit there is no substantive quantitative or qualitative difference between:

(1)    the evidence accepted as satisfying the delegate of association by predecessors with other portions of the claim area;

(2)    the evidence of the factual basis of the association with the whole of the claim area of the native title claim group’s immediate forebears; and

(3)    the evidence available to be considered by the Member, and now the Court, as satisfying the Registrar of the association of the predecessors of the native title claim group with the north-western portion of the area.

99    The claimants emphasise factual and legal issues in contention in this application are not reliant upon the detailed administrative knowledge of the Registrar and his delegates; and so no relevant “margin of appreciation” or evaluative judgment inherently advantages the Registrar’s delegate over the Court in relation to the matter in issue in this review application. They say that what is in issue is a question of the interpretation to be placed upon the word “predecessors” in s 190B(5)(a) of the NTA and the drawing of an inference as to whether the available evidence is sufficient to be satisfied that the predecessors had “an association with the area”.

100    The claimants focus their submissions on the Member’s finding that the Registrar should not accept the claim for registration because the predecessors of the native title claim group had not been shown to have had an association with the north-west of the claim area. That conclusion resulted in a finding that the Member was not satisfied as to the matters in s 190B(5)(a) to (c) and (6).

101    The claimants contend the Member has erred in finding that the “relevant predecessors” to which s 190B(5)(a) refers are limited to those in the area around or close to the period of sovereignty or contact, being Johnny and his children, including Kitty Bluegum, Jimmy and Minnie. The claimants say this finding led the Member to the erroneous conclusion, for the purposes of s 190B(5)(a), at [171] of his reasons, that “there is no material sufficient to support the association of these predecessors to the north west of the claim area”.

102    Further, in the claimants’ supplementary submissions, they note their primary contention is that the misdirection of the delegate and the Member was to fail to regard the finding by the delegate of the association of the “immediate forebears” of the claim group with the whole of the claim as satisfying the requirement for association of “predecessors” with the area, within the meaning of that term as in s 190B(5)(a), as properly interpreted; or as evidence to be taken into account which, together with other evidence, such as the birth of a child to Kitty Bluegum in the vicinity of the north-west of the claim area, was capable of providing a sufficient factual basis for association of “predecessors” with the area.

103    Further or in the alternative, the claimants submit the evidence, referred to below, regarding the association of predecessors of the claim group with the north-west of the claim area was not taken into account by the Member. Together with the evidence discussed by the delegate at [52] to [62] of the delegate’s decision, regarding the native title claim group’s current association with the area, the claimants say the evidence was sufficient to satisfy the Registrar of the asserted association of “predecessors” with the area.

104    The claimants note that the Member identified the test to be applied to satisfy s 190B(5)(a) of the NTA, finding there must be some “evidence that there is an association between the whole group and the area” and a similar association of the predecessors; or the factual basis must be sufficient to support the assertion that the native title group and the predecessors of those persons have an association with the whole of the area covered by the application: Corunna v Native Title Registrar [2013] FCA 372 at [35] and [39], following Martin v Native Title Registrar [2001] FCA 16 at [23]-[26].

105    However, the claimants say that Martin is distinguishable from this case. They note that in Martin, French J (as the Chief Justice then was) found at [24] that there was “no evidence of association with the coastal areas claimed around Dongara” and “no information was provided regarding association with the northern and eastern parts of the claim”. They submit it is not the case in this application that there was no evidence of an association of the predecessors of the native title claim group with the north western part of the claim area.

106    The claimants refer to what was said in Moses v Western Australia (2007) 160 FCR 148 at [215]; [2007] FCAFC 78 about what it means to “occupy” an area. They say, by analogy, “association” of the predecessors of the native title claim group in this case with the north-western portion of the claim area may be found from some activity on some of that portion of the claim area of a predecessor, without any necessity that there be evidence of activity on every part of that portion of the claim area, or that it is to be frequent, consistent, repeated or constant, or for a “traditional” purpose, or at a fixed time, such as “the early to mid-1890s”.

107    In the claimants’ submission, the following evidence was presented to the delegate and the Member to show that the predecessors of the native title claim group had an association with the north-western portion of the claim area “west of a line from Kanowna to Menzies”:

(1)    In 1898 a party of “tribesmen” who had their home at Edjudina (and who were, by inference, predecessors of the native title claim group) travelled through the north­western portion of the claim area, from Broad Arrow north to “Four Mile” (by inference, four miles south of Menzies) and to Menzies;

(2)    Arthur Newland, a predecessor of the native title claim group, was associated with Mulline and Davyhurst in the north-west of the claim area;

(3)    The “old people”, being of the parents’ (including Arthur Newland) and grandparents’ (including Kitty Bluegum) generations of the native title claim group, and also being “predecessors” of the native title claim group, were associated with the clay pans to the south of Menzies in the north-western portion of the claim area; and

(4)    Jacky, a possible member of a Maduwongga patrilocal descent group, had an association not only with Siberia but also with Goongarrie to the north of Siberia in the north-western portion of the claim area

108    The claimants submit the Member and delegate appear to have discounted or not taken into account the above evidence:

    in part, because it was concluded that it was not “at the time of sustained contact in the early to mid-1890s”;

    in part, by ignoring or misunderstanding the evidence of the association of Jacky with Goongarrie (as well as Siberia);

    in part, by ignoring or not taking account of the evidence of (1) Arthur Newland’s association with Mulline and Davyhurst; (2) the “old people’s” association with the clay pans south of Menzies and (3) the evidence of the “tribesmen” travelling between Broad Arrow and Four Mile to Menzies; and

    in part, by failing to view the available evidence of association of predecessors of the native title claim group with the north-western portion of the claim area cumulatively.

109    Further, the claimants say the following evidence was before the Member of places with which the predecessors of the native title claim group had an association, which are in the north-west of the claim area:

(1)    The Member noted that it was suggested that Jacky, if accepted as a member of a Maduwongga patrilocal descent group, had an association with some of the north-west of the claim area, namely Siberia and the swamp west of Coongarrie (referred to in Tregurtha’s account). The Member concluded:

If it was accepted that Jacky was a member of a Maduwongga patrilocal descent group, the extent of country in the west, perhaps reaching Siberia, is not so extensive as to associate the descent group with the whole of the north-west.

Siberia is in the vicinity of the junction of the Davyhurst-Ora Banda Road, about 80 km north of Coolgardie and 70 km south-west of Menzies. Further, “Coongarrie” is probably a reference to Goongarrie. Goongarrie Lake is about 27 km south of Menzies and Goongarrie Hill is 35 km south of Menzies. Goongarrie townsite is 40 km south of Menzies. Goongarrie Homestead is 40 km south-west of Menzies and the north­west corner of the boundary of the Goongarrie Pastoral Lease is 55 km west-south-west of Menzies. The “swamp west of Coongarrie” is not identified on the maps but it is open to conclude that it is somewhere in the north-western portion of the claim area.

(2)    The Member did not refer to the article in the Kalgoorlie Western Argus in 1898 about the revenge party, traveling north from Broad Arrow to Four Mile, and then to Menzies. The article describes a party of Aboriginal people whose “tribesmen” had died as a result of the evil spirit “dibble dibble.” The article continues, “It was originally their intention to travel northwards towards Edjudina, which is their home,” but, as the article reports, the expedition of warriors went from Broad Arrow to Four Mile by train and then to Menzies to appease the deaths.

(3)    The Member did not refer to Dr McDonald’s evidence that the claimants reported to him that their father, Arthur Newland, lived in places including Mulline and Davyhurst, in the north-west of the claim area, and that the land was “the old people’s” and “our rights and connections to the country derive from the fact that it was the old people’s”. Dr McDonald noted in his 1998 report, “[t]he key runs established by the kin group in previous years are still remembered through narratives and parts of the runs visited from time to time.”

(4)    Dr McDonald further recorded that when the claimants took him on field trips for the purposes of preparing his 1998 report, they took him to a clay pan immediately south of Menzies and just south of the northern boundary of the claim area, and to Timber Flats, Soak 1 and Soak 2, Mulline, Davyhurst, Callion and Goongarrie, all places in the north-west of the claim area.

(5)    The Member did not refer to Dr McDonald’s evidence that the claimants said a number of the places visited were reportedly used frequently by the “old people”, including the clay pans to the south and east of Menzies. Dr McDonald said that in discussing the use of these places the claimants distinguished between the “old people” (that is, their parents’ and grandparents’ generations) and the “really old people” (that is, people who lived prior to colonisation). He further noted “many of the places inspected … are traditional and prehistoric camping places” and “[l]arge artefact scatters” were associated with places such as the clay pan south of Menzies.

(6)    The Member noted that the area “west of a line from Kanowna to Menzies” includes places referred to in Dr Mathieu’s and Dr McDonald’s reports, and Tindale’s field journal: Mulline, Callion, Davyhurst and Goongarrie in the northern half of the area and Siberia and Ora Banda in the south central part. However, the Member agreed with the delegate’s conclusion that Kalamaia informants identified Kalamaia places in the westerly reaches of the claim area, in that part of the claim area north and west of Kanowna for which there was no detailed information in support of the predecessors’ association.

110    The claimants therefore contend that the Member and delegate misdirected themselves not only as to the correct test and its application but also as to the available evidence to establish an association of the predecessors of the native title claim group with the portion of the claim area “west of a line from Kanowna to Menzies”.

111    The claimants also refer to “new material” contained in Dr Mathieu’s additional discussion, dated 8 April 2015, attached to their supplementary submissions.

112    They say Dr Mathieu provides further relevant evidence to be taken into account with the other evidence of the predecessors’ association with the north-west of the claim area, the salient points being:

(1)    Tindale recorded as Maduwongga a woman named Mary, born in Kalgoorlie, and her daughter Jean, born in the region of Menzies in 1904;

(2)    A further article in the Kalgoorlie Argus on 8 November 1898 entitled “Tracking Extraordinary” details the journey of the men from Kurnalpi and Edjudina, who had travelled to Kensington near Menzies to kill Tiger, being tracked as travelling from Kensington to Goongarrie (seeking a “native well”), to Cane Grass, Bardoc, Broad Arrow, Kanowna and their camp east of Broad Arrow: 140 miles on foot across bushland in 48 hours; and

(3)    “Stories from Mulline”, recounted by Marjorie Strickland, of her parents, Aunt Violet and Uncle Jessop Sullivan and Aunt Eva travelling to just south of Mulline, hunting at the fresh water clay pans on the side of the Menzies/Mulline road and travelling to Timber Flats; and Aunt Lena living at Timber Flats.

State’s submissions

113    The State, in supplementary submissions, notes that pursuant to s 190F(2) the Court’s jurisdiction is to “hear and determine” an application for review of the Registrar’s decision not to register a native title claim, although the NTA does not expressly further delineate the precise nature and extent of the Court’s review function.

114    By reference to Gudjala FC at [88], the State submits a review under s 190F is not restricted to consideration and determination of a question of law, but may extend to a determination of fact. It also accepts that although there were numerous earlier, contrary decisions, the Full Court has determined that a review may require redetermination of issues of fact according to the material available to the Court; rather than being restricted to material before the Registrar: see Strickland FC at [65]-[67]. (While the State submits that no such new material was referred to in the present case, the Court notes that the additional discussion of Dr Mathieu dated 8 April 2015 which is attached to the claimants’ supplementary submissions, referred to above, is not objected to.)

115    While the claimants emphasise the distinction to be made from judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), the State submits that a review under s 190F is in the nature of a judicial review of an administrative decision in the manner generally understood in administrative law. It says the Court’s review function under s 190F is expressed in broad terms, but it does not follow that a review is a rehearing at large or a hearing de novo.

116    The State submits the Court should give weight to the Registrar’s experience in making registration decisions. It says the Registrar’s decision should stand if the decision was reached on the material available and the decision has not been shown to have been influenced by error: see Strickland FC at [83]; Wiri People at [19].

117    The State also refers to Evans, in particular the observation of Nicholson J, at [38], by reference to Strickland v Native Title Registrar (1999) 168 ALR 242 at 261; [1999] FCA 1530 that “a significant margin of appreciation” should be allowed for the experience and detailed administrative knowledge of the Registrar and his delegates in making largely evaluative judgments on whether applications comply with the statutory conditions of registration”.

118    The State notes Strickland at 261, French J said there is scope for evaluative judgment in an expeditious administrative process carried out by people with relevant specialist experience. The State says the Court will not substitute its own views for those of the Registrar unless it can be shown that the Registrar’s state of satisfaction is based on some error of principle: see Wiri People at [18]; Strickland at 261.

119    Further, the State contends the nature and extent of judicial review of an administrative decision is not identical to that of an appeal from the decision of a court, and in that sense the observations made about the nature of an appeal in Fox v Percy are only of indirect assistance in this case. It says there are jurisdictional limits inherent in the exercise of a judicial review function, noting what Mason J (as his Honour then was) observed in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40-41; [1986] HCA 40:

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned[.]

120    The State submits that the claimants have not demonstrated any substantive or relevant error or difficulty in the Member’s reasons.

121    It says the term “predecessors” in s 190B(5)(a) of the NTA must be interpreted consistently with the definition of native title in s 223 which, as the High Court confirmed in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; [2002] HCA 58, is concerned with continuity of laws and customs, “society” and rights and interests from sovereignty to the present. It follows, in the State’s submission, that “the predecessors” must mean more than simply the most recent generations of forebears (because an association only by them says little or nothing about the endurance of native title).

122    The State says the evidence which the claimants point to in their submissions as demonstrating an association of the claimants’ predecessors with relevant parts of the application area, in the sense intended by s l90B(5) of the NTA, does not do so.

123    The State submits the evidence about Siberia and “the swamp area west of Coongarrie” is dealt with correctly by the Member at [175] of his reasons and says that evidence, even if accepted, does not relate to all of the north-west of the claim area. It notes that evidence is “slight and speculative”, and says the connection between Jacky and any claimant is in any event not made out.

124    In the State’s submission, it is “absurd” to suggest the evidence about the train route from Broad Arrow to Four Mile in a news article (the reliability of which cannot be known), asserting that some unidentified Aboriginals caught a train across part of the claim area, establishes the requisite s 190B(5) association.

125    Further, it says the evidence about Mulline is merely evidence that Tindale at one time included Mulline and Siberia as possible boundary points for a group called “Maduwongga”. The State says this evidence does not show an association with the north-west of the claim area by any identified predecessors of the claimants.

126    With regard to the evidence about Davyhurst, Callion, Timber Flats and the clay pans south-east of Menzies, the State submits it is merely evidence that unidentified, present-day claimants went on a field trip with an anthropologist for the purposes of the native title claim and asserted that unidentified “old people” used some areas (but not, in fact, Davyhurst, Callion or Timber Flats).

127    The State also refers to “the number of repeated claims made over the area” by the named applicants and the amount of anthropological research apparently conducted, submitting that the reliance now on “this tiny amount of unhelpful material” is telling.

Consideration

128    It is useful to be reminded of the terms of s 190B(5)(a) to (c) which provides that:

Factual basis for claimed native title

(5)     The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:

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

(b)     that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and

(c)     that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.

129    As noted above, the State contends the expression “the predecessors of those persons” in para (a) must be interpreted consistently with the definition of native title in s 223 and what was said about it in Yorta Yorta, and the Court should approach the matter on the basis that the provision is concerned with the continuity of laws and customs; “society”; and rights and interests from sovereignty to the present. Thus, “predecessors” must mean more than simply the most recent generation of antecedents of the native title claim group.

130    Senior counsel for the claimants accepts that it was appropriate for the Member to look at the contact generation and such people as Johnny, and his children Kitty Bluegum, Jimmy and Minnie, but says it was also appropriate not to ignore other predecessors who might be in the following generations.

131    When the Court sought to clarify that submission and inquired whether it was along the lines that people between the 1890s and today can also be relevant to the connection inquiry, to use that expression generally, senior counsel agreed and said that the claimants say that their deceased father (Arthur Newland) is a predecessor. He added that, within the terms of the legislation, if there is some evidence of Arthur Newland’s presence or his association with the contested area, then that is relevant evidence and should not be discounted, which seems to be what the Member had done.

132    The starting point, as the decisions of Gudjala FC, Strickland and Evans indicate, amongst other authorities, is that the delegate, and later the Member, were all administrative decision-makers exercising the administrative power stipulated in s 190B(5) of the NTA.

133    The decision-maker by that provision “must be satisfied” that the “factual basis” on which it is asserted that claimed native title rights and interests exist, is “sufficient” to support the assertion. Then the particular assertions in (a), (b) and (c) are noted.

134    This Court’s function under s 190F in conducting a “review” is different from judicial review under, for example, the ADJR Act. It is more than simple “legal error” that is being looked for.

135    The Court plainly has the power to consider whether an administrative error was made by the decision-maker in the course of them not being satisfied, for example, that a relevant factual basis exists sufficient to support the general assertion and in particular the specific assertions.

136    The Court, in conducting that review, might nonetheless acknowledge the complexity of the task given to the decision-maker and that a “margin of appreciation”, as explained in Strickland and Evans, might be allowed. The decision-maker is engaged in an “evaluative” exercise, as noted in Strickland.

137    Obviously if some error in principle is made by the decision-maker in applying the “sufficient factual basis” test, then that may, of itself, be a reason for the Court upholding a review.

138    To an extent, the claimants contend that the Member misdirected himself by adopting an interpretation of “predecessors” in para (a) limited to predecessors at about the time of effective sovereignty (contact with settlers), and not regarding information supporting the assertion that other predecessors, in between contact and the present day, were associated with the claim area.

139    It must be appreciated that it is not enough for there to be what might be called a mere factual basis to support each of the assertions in paras (a) to (c): the registrar must be satisfied that the factual basis “is sufficient” to support the assertion in each case. Thus, in my view, if evidence provided is at such a state of generality or imprecision or otherwise involves a decision-maker engaging in some speculation, for example, about a predecessor having an association with the claim area, then it will be difficult to conclude that there is a sufficient factual basis to the relevant assertion.

140    In Gudjala FC at [83] the Full Court referred to Mansfield J in Doepel, and observed:

His Honour went on to discuss the requirement that the Registrar consider whether the factual basis upon which it is asserted that the claimed native title rights and interests exist is sufficient to support the assertion. His Honour said (at [17]) the words that we set out at [57] above, and which we find it convenient to repeat:

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

(Emphasis added.)

We respectfully agree with and adopt that characterisation of the criterion set out in s 190B(5). See also Martin v Native Title Registrar [2001] FCA 16 at [22] (French J).

141    The Full Court also made the following comments in their conclusion at [96]:

The general approach the primary judge took in relation to the evidence of Mr Hagen affected his approach in assessing the matters required to be considered by s 190B(5). For example, his Honour said (at [70]) that on the material presently available he could find no factual basis supportive of an inference that there was, in 1850-1860, an indigenous society in the area, observing identifiable laws and customs. However Mr Hagen’s report, which formed part of the application (and in respect of which there were affidavits from members of the claim group saying the statements in the application were true), contained several statements which, together, would have provided material upon which a decision-maker could be satisfied that there was, in 1850-1860, an indigenous society in the claim area observing identifiable laws and customs. It may be accepted that Mr Hagen’s report does not deal in direct and unequivocal terms with this question and others that s 190B requires must be addressed. But it is not true that his report provides no factual basis in the way described by his Honour. Had his Honour given appropriate weight to Mr Hagen’s report, that report together with other material could well have sustained a conclusion that the application should be accepted. We accept that in relation to some of the asserted native title rights and interests there was a dearth of material that such rights and interests had been and continue to be observed, but that would not have been fatal to the acceptance of the claim.

142    In Martin, French J said at [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.

143    In this case, the claimants have accepted the obligation they effectively have to put materials before the Registrar to enable the decision-maker to be satisfied that there is a sufficient factual basis for the relevant assertions, including as to association in para (a).

144    Something should also be said at this point about the expression “an association with the area” to which para (a) refers. The requirement of course is that there should be a factual basis to the assertion “that the native title claim group have, and the predecessors of those persons had, an association with the area”.

145    The State, as noted above, contends that the composite expression or the nature of the assertion in para (a) should be construed and understood in light of the holding of the High Court in Yorta Yorta as to what is required to prove native title as defined in s 223 of the NTA. While I consider there is some reason to reflect on the requirements of s 223 in relation to the construction of subs (5) generally, I do not consider that the particular prerequisites to proof of native title as explained in Yorta Yorta imbue the construction of the whole of para (a).

146    Broadly speaking, it appears to me that the assertions in paras (a), (b) and (c) are intended to reflect the definition of native title as it appears in s 223, which, as is well known, by subs (1) defines native title or native title rights and interests to mean the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws and customs of those peoples; and

(b)    those peoples by those laws and customs have a connection with the land or waters; and

(c)    the rights and interests are recognised by the common law of Australia.

147    Obviously it is not the role of the administrative decision-maker under the registration factor in s 190B(5) to conduct a native title claimant application hearing. Subsection (5), along with other relevant provisions setting out factors for registration under the NTA, is designed to ensure that there is a sound basis to any claimant application, sufficient to accord a registered applicant the important right to negotiate in respect of future acts, to which Pt 2, Div 3, Subdiv P of the NTA refers. While a claimant application of any status may proceed to hearing and determination in the Court, it is only a registered claimant application which attracts the right to negotiate.

148    It will also be noted that none of the assertions in paras (a) to (c) of subs (5) adopts the language of “connection” but in one way or the other each of the paragraphs is redolent of the characteristics of native title as defined in s 223.

149    Nonetheless, I do not consider that the reference in para (a) to an “association” with the area by the claim group or its predecessors bespeaks the entirety of the characteristics of native title under the s 223 definition. Rather, the scheme of subs (5) is that an administrative decision-maker should address and be satisfied that certain assertions have a factual basis of a sufficient quality, namely, those addressing association, the traditional laws and customs of the claim group and that the claim group have continued to hold the native title in accordance with those laws and customs.

150    If at a certain factual level of appreciation, those assertions have a sufficient factual basis, then the claimant application may be registered and the case may proceed replete with the right to negotiate given to the registered applicant.

151    Nonetheless, the expression “an association with the area”, to which para (a) refers, must be accorded some particular meaning. Neither that expression nor the word “association” is defined by the NTA. An ordinary dictionary definition of the word should be regarded, as neither the expression nor the particular word is, in my view, a term of art, and as I have indicated is not to be interpreted simply by reference to the definition of s 223 and the High Court’s explanation of that definition in Yorta Yorta.

152    The Macquarie Dictionary (4th ed) provides a definition of “association” that is not entirely relevant to the usage here in question. Of the meanings of the word as a noun, as is appropriate here, “the act of associating”, “the state of being associated”, “connection or combination” appear to be the most relevant.

153    The verb “associate” is relevantly given a meaning by the same dictionary, “to connect by some relation, as in thought” and “to unite; combine”.

154    The Shorter Oxford English Dictionary (5th ed) does not take any of those definitions much further but includes the following meanings of “association”:

The conjoining or uniting of things or persons with another or others; the state of being so conjoined, conjunction.

155    The verb “associate” is identified by that same dictionary as including “join, unite, ally”; “combine for a common purpose; keep company, have frequent dealings, with”.

156    It may be accepted, I consider, that the “association with the area” assertion, being in respect of both the group of claimants presently and their “predecessors” in the past, does suggest that the relevant association should have something to do with a characteristic or the characteristics that bind a current group of claimants and their predecessors by traditional law and custom, and not otherwise simply be random or personal to individual members of the current claimants or particular predecessors.

157    It may also be said, I consider, that the assertion of “association” involves, in these circumstances, something more than a passing, ephemeral or indirect relationship with the area. For example, if it were the case that some members of a native title claim group had, at various times over a number of years, enjoyed holidaying in a particular area, that factual information would not appear to be sufficient to provide the factual basis of an assertion that the native claim group has an association with the area.

158    In this particular case, the complaint of the claimants is that the Member ultimately failed to regard, or give appropriate weight to, materials from which it is said inferences could be drawn or the facts were that “predecessors” of the claim group were “associated with the area”. It is understood that the particular issue of association concerns the north-western portion of the claim area, generally speaking, to the west of a line drawn from Kanowna to Menzies.

159    The claimants say the Member in effect misdirected himself by focusing only on, or focusing too much on, whether Kitty Bluegum, her father and her siblings could be shown to have had an association with that contested area at sovereignty. It is generally accepted that there is an insufficient factual basis to support an assertion limited to those named predecessors.

160    Thus, the claimants say the Member failed to look adequately or appropriately at other material or evidence of the association of predecessors with the contested area.

161    The claimants draw attention initially to information from an 1898 news article concerning a party of “tribesmen” who had their home at Edjudina (and who were, by inference, predecessors of the native title claim group) and travelled through the north-western portion of the claim area, from Broad Arrow north to “Four Mile” (by inference, four miles south of Menzies) and to Menzies.

162    The claimants say that the article describes a party of Aboriginal people whose “tribesmen” had died as a result of the evil spirit “dibble dibble” and stated that “it was originally their intention to travel northwards toward Edjudina, which is their home” but the expedition of warriors went from Broad Arrow to Four Mile by train and then to Menzies to appease the deaths.

163    The claimants also refer to a further article from the Kalgoorlie Argus, 8 November 1898, entitled “Tracking Extraordinary”, referred to in the additional material of Dr Mathieu attached to their supplementary submissions, in which the journey of the avenging party is apparently set out in more detail. There it is said the men journeyed from Kurnalpi and Edjudina to Kensington near Menzies, to kill one Tiger, and were then tracked by the police with Aboriginal trackers from Kensington to Goongarrie (seeking a “native well”), to Cane Grass, Bardoc, Broad Arrow, Kanowna and their camp east of Kanowna, where they were arrested for murder (although they were later acquitted after a trial). This involved a 140 mile journey on foot across bushland in 48 hours.

164    In short, it is put, based on Dr Mathieu’s opinion, that these inferred countrymen of the direct ancestors of the named claimants – Maduwongga people all – felt comfortable in travelling to that area near Menzies to kill Tiger, so that what would otherwise have been perhaps an inexplicable and punishable murder was seen as the traditional response to an intra-tribal conflict. The avenging party, in short, would not have travelled and done what they did on country which they did not as of traditional right have an entitlement to be on.

165    The State’s submission about this material is noted above and in short suggests that so far as the first news article referred to is concerned, its reliability cannot be known and the fact that some unidentified Aborigines caught a train across a part of the claim area cannot be sufficient to satisfy the requirement of a sufficient factual basis for the assertion of association by predecessors.

166    As I have indicated, especially when taken with the further news article from 1898, there is a little more to this information than a mere group of unidentified Aboriginal people being the members of an avenging party who took a train to Menzies.

167    Some weight might be given to the fact that apparently the avenging party, and the group subsequently arrested by the police for the killing of Tiger, came from Edjudina. Other materials, accepted by the delegate and the Member, place predecessors of the claim group, Maduwongga people, around Edjudina. There is some force in the proposition put forward by Dr Mathieu that if a group left that area and travelled 140 miles in 48 hours, they obviously knew the country. What is more difficult to infer, however, is that by that group seeking to avenge the deaths of their countrymen by killing Tiger near Menzies, that Maduwongga people were necessarily on Maduwongga country when the killing near Menzies occurred.

168    It is interesting information and, perhaps, with other more compelling information might help to sustain an inference that the country in the vicinity of where the killing took place was country in relation to which members of the avenging party had certain rights and interests, at a more “tribal” level, of the sort Dr Mathieu has otherwise expressed opinions about, as noted by the Member.

169    But in my view, on its own, if that were the only factual basis for the assertion that the predecessors had an association with the claim area, I would not consider it sufficient.

170    In my view, on the information previously provided and considered by the Member, the Member took a similar view of the information provided. I do not consider that the Member ignored information in the news article but simply was not persuaded that it provided a sufficient factual basis for an assertion that predecessor Maduwongga people had an association with the contested area in the north-west.

171    The claimants further contend that Arthur Newland was associated with Mulline and Davyhurst in the north-west of the claim area and that “old people” including Arthur Newland and others, from the generation of Kitty Bluegum, were associated with the clay pans to the south of Menzies in the north-western portion of the claim area.

172    The claimants say the Member did not refer to Dr McDonald’s evidence about the claimants reporting to him that their father, Arthur Newland, lived in places including Mulline and Davyhurst and that the land was the “old people’s” and that “our rights and connections to the country derived from the fact that it was the old people’s”.

173    They also note that Dr McDonald stated in his 1998 report, “[t]he key runs established by the kin group in previous years are still remembered through narratives and parts of the runs visited from time to time”.

174    It is further said by the claimants that Dr McDonald recorded that when the claimants took him on field trips in 1998, they took him to a clay pan immediately south of Menzies and to Timber Flats, Soak 1 and Soak 2, Mulline, Davyhurst, Callion and Goongarrie, all in the north-west of the claim area. Also, he stated that the claimants said a number of places visited were reportedly used frequently by the “old people”, including the clay pans to the south and east of Menzies. Dr McDonald said in his report that the claimants distinguished between the “old people” of their parents’ and grandparents’ generations and the “really old people” – those who lived prior to colonisation – and that he further noted that there were many traditional and prehistoric camping places with large artefact scatters associated with places such as the clay pans south of Menzies.

175    As to the evidence about Davyhurst and other places, including the clay pans south-east of Menzies, the State submits it is merely evidence that unidentified, present-day claimants went on a fieldtrip with an anthropologist for the purpose of their native title claim and made assertions that unidentified “old people” used some areas, but not, in fact, Davyhurst, Callion, or Timber Flats.

176    It must be said that the various assertions made about some association by Arthur Newland with Mulline and Davyhurst are very generalised and, on one view, merely involve assertion without any further factual basis. They do not, on their own, appear to me to constitute a sufficient factual basis that a predecessor, such as Arthur Newland, was associated with the contested north-west portion of the claim area.

177    As to the claimants in the late 1990s advising Dr McDonald about old people of different generations being associated with the area of the clay pans and other areas generally in the north-west portion, the evidence is again at a very diffuse or generalised level and on one view it too constitutes mere assertion for which no sufficient factual basis is provided.

178    To the extent that the Member did not consider that evidence, I do not consider that it is evidence that provides a sufficient factual basis for the assertion that predecessors of the claim group had an association with that contested portion of the claim area.

179    The claimants also contend that Jacky, a possible member of a Maduwongga patrilocal descent group, had a relevant association not only with Siberia but also Goongarrie to the north of Siberia, in the north-western portion.

180    The claimants note that the Member doubted that Jacky was a Maduwongga person but concluded that if he was a member of a Maduwongga patrilocal descent group, the extent of his country, perhaps reaching Siberia, was not so extensive as to associate that descent group with the whole of the north-west portion.

181    In that regard, the claimants say that Siberia is in the vicinity of the junction of the Davyhurst-Ora Banda Road, about 80 km north of Coolgardie and 79 km south-west of Menzies. Further the “Coongarrie” referred to in materials is probably a reference to Goongarrie, which may be accepted for present purposes, and that Goongarrie Lake is about 27 km south of Menzies and Goongarrie Hill is 35 km south of Menzies. The townsite is 40 km south of Menzies and the homestead is 40 km south-west of Menzies; and the north-west corner of the boundary of the pastoral lease is 55 km west-south-west of Menzies. The claimants say the “swamp west of Coongarrie” referred to in materials is not identified on maps but it is open to the Court to conclude that it is somewhere in the north-western portion of the claim area.

182    In all of these circumstances, the claimants submit that that material also provides a sufficient factual basis for the assertion that predecessors of the claim group had an association with the whole of the south-western portion.

183    The State submits the evidence about Siberia and “the swamp area west of Coongarrie” was dealt with correctly by the Member in his reasons and says that even if accepted, it does not relate to all of the north-west portion of the claim area. The State submits the evidence is “slight and speculative” and says the connection between Jacky and any claimant in any event is not made out.

184    In my view, this is another instance where it is clear the Member specifically addressed a claimed factual basis for the relevant association assertion. I consider that the Member’s conclusion should not be gainsaid. To say that a person called Jacky may have been a Maduwongga person is speculative. It is therefore speculative to conclude that Maduwongga people thereby had an association with the Goongarrie Lakes area. It is also not at all clear that the Goongarrie Lakes or swamp referred to in materials can support an asserted association with the whole of the north-western portion of the claim area. There are, in my view, so many speculative aspects to this material that it cannot be said to constitute a sufficient factual basis for the association of a predecessor of the claim group with the contested north-western portion of the claim area.

185    In all of these circumstances, while it may be said, on a creative view or a possible view of certain ethnographic and other historic materials, and general assertions made by present-day claim group members, that Maduwongga people in the past had an association with the north-western portion of the claim area, I consider that the various factual bases relied upon do not sufficiently support that assertion, and the finding of the Member to that effect should not be displaced.

186    Submissions were directed to the Member’s decision in relation to s 190B(5)(a), and it was understood that a finding of a sufficient factual basis for the assertions in s 190B(5)(b) and (c) and satisfaction of the condition in s 190B(6), were effectively dependent on a finding of sufficient factual basis for the assertion in s 190B(5)(a).

Conclusion

187    In these circumstances, taking into account any delay in seeking an extension of time to apply for review under s 190F of the NTA, the explanation provided in respect of that delay, and particularly taking into account the merits of the proposed substantive application, I would not make an order extending the time for seeking review under s 190F.

Should the claimant application be struck out?

188    As explained above, it is acknowledged by the claimants that if their application to extend the time to seek review of the decision not to register their claimant application should fail, in the circumstances, the State’s application to strike out the claimant application, filed 16 February 2015, should succeed.

ORDERS

189    In those circumstances, the appropriate orders are that:

(1)    In WAD 77 of 2015, the application of the applicant filed 19 March 2015 to extend time in which to seek review in the Federal Court under s 190F of the Native Title Act 1993 (Cth) of the decision not to register the claimant application in WAD 90 of 2014 be dismissed.

(2)    In WAD 90 of 2014, on the interlocutory application of the respondent filed 16 February 2015, the claimant application be dismissed pursuant to s 190F(6) of the Native Title Act 1993 (Cth) on the basis that it is unregistered and there is no reason why the claim should not otherwise be dismissed.

Associate:

Dated:    21 August 2015