Pappin on behalf of the Muthi Muthi People v Attorney-General of New South Wales [2017] FCA 76

FEDERAL COURT OF AUSTRALIA

File number(s):	NSD 1603 of 2015

Judge(s):	GRIFFITHS J

Date of judgment:	9 February 2017

Catchwords:	NATIVE TITLE – application for review of a decision by the delegate of a Registrar under s 190F of the Native Title Act 1993 (Cth) (the *Act) – delegate’s determination that application does not meet the criteria for registration in s 190A of the Act* – whether delegate erred in finding that the application did not identify an area subject to native title because it did not sufficiently contain the information required by ss 62(2) of the Act and did not satisfy the requirements of ss 190B(2) and 190C(2) of the Act – whether delegate erred in finding there was insufficient evidence in the application to determine that the applicant was part of a native title claim group authorised to make the application as required by s 190C(4) of the Act. Held: no reviewable error established – application for review dismissed.

Legislation:	Native Title Act 1993 (Cth), ss 61, 62, 190A, 190B, 190C, 190F, 251B Federal Court Rules 2011 (Cth), r 23.12

Cases cited:	Anderson on behalf of the Numbahjing Clan within the Bundjalung Nation v Registrar of the National Native Title Tribunal [2012] FCA 1215; 297 ALR 660 Bodney v Western Australia [2003] FCA 890 Cavallari v Premier Refrigeration Co Pty Ltd [1952] HCA 26; 85 CLR 20 Edward Landers v State of South Australia [2003] FCA 264 Gudjala People No 2 v Native Title Registrar [2007] FCA 1167 Gudjala People No 2 v Native Title Registrar [2008] FCAFC 157; 171 FCR 317 Gudjala People No 2 v Native Title Registrar [2009] FCA 1572; 182 FCR 63 Moran v Minister for Land & Water Conservation for New South Wales [1999] FCA 1637 Quall v Risk [2001] FCA 378 Risk v National Native Title Tribunal [2000] FCA 1589 Shaw v Wolf (1998) 163 ALR 205 Strickland v Native Title Registrar [1999] FCA 1530; 168 ALR 242 Western Australia v Strickland [2000] FCA 652; 99 FCR 33

Date of hearing:	Determined on the papers

Registry:	New South Wales

Division:	General Division

National Practice Area:	Native Title

Category:	Catchwords

Number of paragraphs:	92

Counsel for the Applicant:	The Applicant appeared in person

Solicitor for the First Respondent:	Ms L Armstrong of NSW Crown Solicitor’s Office

Counsel for the Second Respondent:	The Second Respondent filed a submitting notice and did not file submissions

Counsel for the Third Respondent:	The Third Respondent appeared in person

ORDERS

		NSD 1603 of 2015

BETWEEN:	GARY PAPPIN AND JEAN CHARLES ON BEHALF OF THE MUTHI MUTHI PEOPLE Applicants
AND:	ATTORNEY-GENERAL OF NEW SOUTH WALES First Respondent REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL Second Respondent NTSCORP LIMITED Third Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	9 FEBRUARY 2017

THE COURT ORDERS THAT:

1. The originating application for review of a decision filed on 7 December 2015 be dismissed.

2. There be no order as to costs.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1 This proceeding seeks a review under s 190F of the Native Title Act 1993 (Cth) (the Act) of a decision of a delegate of the Registrar of the National Native Title Tribunal. The decision, which is dated 27 November 2015, was to the effect that a claim for registration of a native title claim pursuant to s 190A of the Act should not be accepted.

2 The originating application for review of that decision, which was filed on 7 December 2015, asserted that the delegate’s decision was flawed on various grounds. Before summarising those grounds, it is convenient to summarise the background, the delegate’s decision and the submissions of the applicant.

Summary of background matters

3 On 28 November 2014, Gary Pappin and Jean Charles as joint applicants (the applicant), filed a native title application over approximately 13 thousand square miles in respect of land and rivers along the New South Wales/Victorian border in the vicinity of the towns of Balranald and Ivanhoe. This was the sixth application made in respect of that area under the Act by Mr Pappin and others on behalf of the Muthi Muthi People. All the previous proceedings were dismissed.

4 On 10 March 2016, the applicant was granted leave to file and serve by 1 April 2016 an amended native title determination application which excluded any parcels within the boundary of the claim of the Barkandji People in NSD 6084/1998. To date no further amended claim has been filed pursuant to this leave.

The delegate’s decision summarised

5 The delegate noted that the claim was made on behalf of the Muthi Muthi People. The delegate noted that, for a claim to be registered under s 190A, it had to satisfy all of the conditions imposed by the Act. Those conditions included procedural and other conditions imposed by s 190C as well as what are often described as “merit conditions” under s 190B.

6 It is convenient to set out the relevant provisions of the Act before summarising why the delegate found that not all these conditions were met in respect of the application.

7 Sections 61 and 62 of the Act identify the applications which may be made to the Court and the persons who may make such an application. They include a native title determination application and, in the case of such an application made by a person or persons authorised to make the application by a native title claim group, the persons are to be described as “the applicant” and none of the other members of the native title group is to be regarded as the “applicant”. Section 61(4) deals with applications which are authorised by persons and is in the following terms:

Applications authorised by persons

(4) A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:

(a) name the persons; or

(b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

8 Sub-section 61(5) requires that an application must be in the prescribed form, be filed in the Court, contain such information in relation to the matters sought to be determined as is prescribed and be accompanied by any prescribed documents and any prescribed fee.

9 Section 62 sets out the information which is required. It relevantly provides:

62. Information etc. in relation to certain applications

Claimant applications

(1) A claimant application (see section 253):

(a) must be accompanied by an affidavit sworn by the applicant:

(i) that the applicant believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and

(ii) that the applicant believes that none of the area covered by the application is also covered by an approved determination of native title; and

(iii) that the applicant believes that all of the statements made in the application are true; and

(iv) that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and

Note: Section 251B states what it means for the applicant to be authorised by all the persons in the native title claim group.

(v) setting out details of the process of decision-making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and

(b) must contain the details specified in subsection (2); and

(i) if any member of the native title claim group currently has, or previously had, any traditional physical connection with any of the land or waters covered by the application--that traditional physical connection; or

(ii) if any member of the native title claim group has been prevented from gaining access to any of the land or waters covered by the application--the circumstances in which the access was prevented.

Note: The applicant will be the registered native title claimant in relation to the area claimed if and for so long as the claim is entered on the Register of Native Title Claims.

Details required by paragraph (1)(b)

(2) For the purposes of paragraph (1)(b), the details required are as follows:

(a) information, whether by physical description or otherwise, that enables the boundaries of:

(i) the area covered by the application; and

(ii) any areas within those boundaries that are not covered by the application;

to be identified;

(b) a map showing the boundaries of the area mentioned in subparagraph (a)(i);

(c) details and results of all searches carried out by or on behalf of the native title claim group to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application;

(d) a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;

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

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

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

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

(f) if the native title claim group currently carry on any activities in relation to the land or waters-details of those activities;

(g) details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title;

(ga) details of any notifications under paragraph 24MD(6B)(c), of which the applicant is aware, that have been given and that relate to the whole or a part of the area;

(h) details of any notices under section 29 (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area.

Note: Notices under paragraph 24MD(6B)(c) and section 29 are relevant to subsection 190A(2).

Compensation applications

(3) In the case of a compensation application whose making was authorised by a compensation claim group, the application:

(a) must be accompanied by an affidavit sworn by the applicant:

(i) that the applicant believes that native title rights and interests exist or have existed in relation to the area; and

(ii) that the applicant believes that all of the statements made in the application are true; and

(iii) that the applicant is authorised by all the persons in the compensation claim group to make the application and to deal with matters arising in relation to it; and

Note: Section 251B states what it means for the applicant to be authorised by all the persons in the compensation claim group.

(iv) setting out details of the process of decision-making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and

(b) must contain the details that would be required to be specified by paragraph (1)(b), and may contain the details that would be permitted under paragraph (1)(c), if the compensation application were instead a native title determination application in respect of the native title involved in the compensation application.

10 Section 190A imposes an obligation on the Registrar to consider a claim in certain circumstances. It relevantly provides:

190A Registrar to consider claims

Claims made to Federal Court

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

Note: Unless subsection (1A) applies, in the case of an amended application (under subsection 64(4)), the Registrar would be required to consider the claim in the amended application even if the Registrar had already accepted for registration the claim in the original application. In such a case, if the claim in the amended application were then accepted for registration, the Registrar would be required under subsection 190(3) to amend the Native Title Register to reflect the amendment.

…

(2A) In any other case, the Registrar must finish considering the claim as soon as is practicable.

Information to be considered

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

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

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

(c) to the extent that it is reasonably practicable to do so in the circumstances--any information supplied by the Commonwealth, a State or a Territory, that, in the Registrar's opinion, is relevant to whether any one or more of the conditions set out in section 190B or 190C are satisfied in relation to the claim;

and may have regard to such other information as he or she considers appropriate.

…

Notification about amending application

(5A) Before the Registrar has decided whether or not to accept the claim for registration, he or she may notify the applicant that the application may be amended under the Federal Court Rules.

Test for registration

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

(a) either:

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

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

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

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

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

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

(a) a claim (the earlier claim) was made in an application given to the Registrar under section 63 or subsection 64(4) (the earlier application); and

(b) the Registrar accepted the earlier claim for registration under subsection (6) of this section; and

(c) the later claim was made in an application given to the Registrar under subsection 64(4) that amends the earlier application; and

(d) the Registrar is satisfied that the only effect of the amendment is to do one or more of the following:

(i) reduce the area of land or waters covered by the application, in circumstances where the information and map contained in the application, as amended, 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;

(ii) remove a right or interest from those claimed in the application;

(iii) change the name in the application of the representative body, or one of the representative bodies, recognised for the area covered by the application, in circumstances where the body's name has been changed or the body has been replaced with another representative body or a body to whom funding is made available under section 203FE;

(iv) change the name in the application of the body to whom funding was made available under section 203FE in relation to all or part of the area covered by the application, in circumstances where the body's name has been changed or the body has been replaced by another such body or a representative body;

(v) alter the address for service of the person who is, or persons who are, the applicant.

(6B) If neither subsection (6) nor (6A) applies, the Registrar must not accept the claim for registration.

Note: The fact that the Registrar is considering the claim under this section does not mean that the application cannot be amended: see subsection 64(3).

…

11 Section 190B sets out the conditions concerning the merits of a claim as referred to in s 190A(6)(b)(i). It relevantly provides:

190B Registration: conditions about merits of the claim

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

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.

Identification of native title claim groups

(3) The Registrar must be satisfied that:

(a) the persons in the native title claim group are named in the application; or

(b) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.

Identification of claimed native title

(4) The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.

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.

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.

Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a "right to negotiate" process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a "right to negotiate" process).

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.

No failure to comply with section 61A

(8) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of section 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.

No extinguishment etc. of claimed native title

(9) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that:

(a) to the extent that the native title rights and interests claimed consist of or include ownership of minerals, petroleum or gas--the Crown in right of the Commonwealth, a State or a Territory wholly owns the minerals, petroleum or gas; or

(b) to the extent that the native title rights and interests claimed relate to waters in an offshore place--those rights and interests purport to exclude all other rights and interests in relation to the whole or part of the offshore place; or

(c) in any case--the native title rights and interests claimed have otherwise been extinguished (except to the extent that the extinguishment is required to be disregarded under subsection 47(2), 47A(2) or 47B(2)).

12 Section 190C sets out the conditions concerning procedural and other matters which are referred to in s 190A(6)(b)(ii). It relevantly provides:

190C Registration: conditions about procedural and other matters

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

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.

No previous overlapping claim groups

(3) The Registrar must be satisfied that no person included in the native title claim group for the application (the current application ) was a member of the native title claim group for any previous application, if:

(a) the previous application covered the whole or part of the area covered by the current application; and

(b) an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made; and

Identity of claimed native title holders

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

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

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

(b) the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.

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

Certification not affected if Aboriginal/Torres Strait Islander body subsequently ceases to be recognised

(4A) To avoid doubt, the certification of an application under Part 11 by a representative Aboriginal/Torres Strait Islander body is not affected merely because, after certification, the recognition of the body as the representative Aboriginal/Torres Strait Islander body for the area concerned is withdrawn or otherwise ceases to have effect.

Requirements for uncertified applications

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

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

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

13 Section 190F confers the jurisdiction on the Court to review the Registrar’s decision not to accept a claim. It provides:

190F If the claim cannot be registered-review by Federal Court

Applicant may apply to Federal Court for review

(1) If the Registrar gives the applicant a notice under subsection 190D(1), the applicant may apply to the Federal Court for a review of the Registrar's decision not to accept the claim, provided the NNTT is not reconsidering the claim under section 190E at the time the application is made.

Federal Court has jurisdiction

(2) The Court has jurisdiction to hear and determine an application made to it under subsection (1).

Court order where physical connection test failed

(3) If, on an application under subsection (1) in a case to which subsection 190D(2) applies, the Court is satisfied that:

(a) prima facie, at least some of the native title rights and interests claimed in the application can be established; and

(b) at some time in his or her lifetime, at least one parent of one member of the native title claim group had a traditional physical connection with any part of the land or waters and would reasonably have been expected to have maintained that connection 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;

the Court may order the Registrar to accept the claim for registration.

Opportunity to be heard

(4) Before making an order under subsection (3), the Court must give to any person who is a party to the proceedings in the Court under Part 4 in relation to the application an opportunity to be heard in relation to the making of the order.

Where no application for review, or Court does not make order under subsection (4) on review

(5) Subsection (6) applies in a case where:

(a) the Registrar does not accept the claim for registration either because, in the opinion of the Registrar or, if the claim is reconsidered under section 190E, of the member of the NNTT reconsidering the claim:

(i) it does not satisfy all of the conditions in section 190B; or

(ii) it is not possible to determine whether all of the conditions in section 190B have been satisfied because of a failure to satisfy section 190C; and

(b) the Court is satisfied that the avenues for:

(i) the reconsideration under section 190E of the Registrar's decision; and

(ii) the review under this section of the Registrar's decision; and

(iii) the review of orders made in the determination of an application under this section; and

(iv) the review of the Registrar's decision under any other law;

have all been exhausted without the registration of the claim.

(6) The Court may, either on the application of a party or on its own motion, dismiss the application in which the claim was made (the application in issue) if:

(a) the Court is satisfied that the application in issue has not been amended since consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and

(b) in the opinion of the Court, there is no other reason why the application in issue should not be dismissed.

14 Claims which are registered on the Register of Native Title Claims attract a range of procedural rights, including notice of the grant of mining rights (ss 22EA, 22H), or previous non-exclusive possession acts (s 23HA), and a right to negotiate agreements as to future acts (Pt 2, Div 3, particularly s 24CD). Claims which do not pass the specified requirements are not accepted for registration and may continue as proceedings in the Court.

15 In her decision under s 190A, the delegate concluded that some of the relevant conditions were satisfied, but others were not. In particular, the delegate concluded that the following conditions were not met:

(a) s 190C(2) (details, information and affidavits required by ss 61 and 62): the delegate found that the application did not identify the external boundaries of the application area as required by s 62(2)(b) and therefore did not contain all details and other information as required by s 62(1)(b);

(b) s 190C(4)(a) and (b) (certification/authorisation): the delegate found that the application had insufficient evidence that the Muthi Muthi Elders Council is a body that exists under customary law and has the power to make decisions on behalf of the native title claim group. The delegate concluded that there was inconsistency in the application regarding the decision-making authority within the Muthi Muthi claim group;

(c) s 190B(2) (identification of area subject to native title): the delegate concluded that the application did not contain a map of the external boundaries of the application area as required by s 62(2)(b) and that the wording of the exclusions referred to in the written description of the claim area could lend uncertainty, at any time, to the area covered by the application;

(d) s 190B(3) (identification of native title claim group): the delegate concluded that the description of the claim group in Sch A to the application was not sufficiently clear so that it could be ascertained whether any particular person was in the group;

(e) s 190B(5) (factual basis for claimed native title): the delegate concluded that the factual basis provided in the application was not sufficient to support each of the particularised assertions in s 190B(5);

(f) s 190B(6) (prima facie case): the delegate concluded that where s 190B(5) was not satisfied, it necessarily followed that s 190B(6) could not be satisfied; and

(g) s 190B(7) (traditional physical connection): the delegate concluded that, having regard to the findings concerning s 190B(5)(b), the application was not sufficient to support the assertion that there were traditional laws and customs so as to meet the requisite condition.

16 It is convenient to say a little more about each of these adverse findings by the delegate.

17 Information about the boundaries of the area and the map: The delegate noted that the application included a map at Attachment C but she was not satisfied that this was a map of the external boundaries of the area as required. This was because the map showed the external boundaries of the application area as extending into Victoria and as covering three separate native title determination applications (referred to as the Barkinji Native Title Claim: Nyiamphaa Native Title Claim and the Wendba Native Title Claim). The delegate then noted that the written description of the application area in Sch B of the application excluded the State of Victoria and the areas covered by those three other native title determination applications. The delegate did note that [7] of Sch B stated that, where there is a discrepancy between the map and the written description, the latter prevails. Noting, however, that there was a “significant discrepancy” between the description and the map, the delegate concluded that the map was not a map which showed the boundaries of the area as required by s 62(2)(a)(i).

18 Authorisation/certification: The delegate considered that s 190C(4)(b) applied here, with the consequence that she had to be satisfied that the applicant was a member of the native title claim group and is authorised to make the application and deal with matters arising in relation to it by all the other persons in the native title claim group. Although the delegate was satisfied that the applicant is a member of the native title claim group, she found the information in the application regarding the issue of authorisation as being “not entirely clear”. In particular, the delegate drew attention to the fact that the information appeared to state that the traditional decision-making process used by the claim group incorporated a decision by the Elders Council, of which Jean Charles is the headperson. Yet, on the other hand, the information referred to Jean Charles having full authority to make decisions on behalf of the native title claim group. The delegate described as contradictory the separate references to Jean Charles’ authority being based on both her inheritance of, and election to, the position of headperson. The delegate also considered that this information was contrary to the claim in Sch A that the “headperson is chosen by and within the Elders council (sic) and is not hereditary”.

19 The delegate proceeded to note that, while there was some information provided in the affidavits which accompanied the native title determination application and in Sch R of that application, there was no “clear information in the application supporting the existence of this Elders Council, its basis under customary law and the extent of its authority under the relevant traditional laws and customs to make decisions that are binding on all members of the native title claim group” (at [70]). She concluded that there was insufficient evidence upon which she could be satisfied that the Elders Council was a body that exists under customary law and has power to make decisions on behalf of the native title claim group. Accordingly, she concluded that the requirements in ss 190C(4)(a) or (b) were not met.

20 Merit conditions: The delegate was not satisfied that the condition in s 190B(2) was satisfied because, despite the statement to the effect that the information contained in Sch B should be regarded as the prevailing description of external boundaries, the “clear inconsistency” between that description and the map (which, as noted above, showed the claimed area as extending into Victoria and as covering land and waters within the other three native title determination applications) lent uncertainty to the area covered such that the relevant condition was not met.

21 The delegate also concluded that she was not satisfied that the persons in the native title claim group were described sufficiently clearly so that members of the group could be identified as required by s 190B(3). Schedule A of the application for a native title determination contained the following description of the native title claim group (original unaltered):

1. The Native Title Claim Group is:

a) Members of the Muthi Muthi, being matrilineal descendants of the Indigenous ancestors identified with the Native Title Claim Area in the early years of white occupation who, by inference and on the evidence, can be properly assumed to be descendants of the occupants of the land claimed in accordance with Aboriginal tradition at the time of sovereignty; and,

b) A Muthi Muthi person cannot be ‘multi-clanned’. According to Muthhi Muthhi traditional law and customs a woman may belong to two tribes, usually that of her mother’s tribe and that of her husband’s tribe. However a man can only belong to one tribe, usually his mother’s tribe. A man who claims membership of another tribe cannot also claim to be Muthi Muthi.

2. others may be members of the group who meet all of the following criteria:

a) marriage; or adoption into the group; and

b) acceptance by the group according to traditional laws and customs.

i) Traditional law and custom “dictates that the headperson of the family groups must approve and endorse any persons who, through marriage and/or adoption, claim membership to the claim group”.

ii) The headperson is chosen by and within the Elders council and is not hereditary.

3. Please see Attachment A for further details of the Native Title Claim Group in relation to 1. and 2. above.

22 The delegate concluded that the description provided “no real or obvious starting point with which to commence an inquiry” and that the rules or conditions were vague and unclear. In particular, the delegate noted that, in the absence of naming the ancestors to whom the rules of the membership related, the starting point of the inquiry was not clear. Similarly, she described the second rule of membership, which related to a person being “multi-clanned”, as “essentially confusing” because it contained internal inconsistencies and was also variable and unpredictable. Accordingly, the delegate concluded that the application did not satisfy the condition in s 190B(3).

23 As to the condition in s 190B(5), which related to the factual basis for the claimed native title, the delegate noted that her role was not to test whether the facts of the claim were true but rather was to decide whether the facts were sufficient to support each assertion relating to the association with the claim area, the traditional laws and customs of the original society, and their continuity over the period since sovereignty. Given the delegate’s finding that clear information was not provided as to the identity of the Muthi Muthi People, she found that this posed a difficult issue in terms of her consideration of the sufficiency of the factual basis. After a detailed summary of the information provided in the application concerning the asserted factual basis in relation to association with the claim area, the delegate summarised the information as essentially being to the effect that the Muthi Muthi People “are primarily a language group or tribe, whose traditional country falls within the claim area”. She found, however, that there were few details about “any relevant pre-sovereignty society” and that it was unclear from the asserted facts whether it was claimed that the Muthi Muthi People formed part of a society distinct from neighbouring groups or tribes as referred to in Attachment F. Furthermore, the delegate found that the factual basis material did not provide clear details about relevant ancestors or other persons connected to the claim group and their association dating back to a relevant period, such as European contact or settlement. While the delegate noted that there was information about how members of the claim group had a current association with the application area (as reflected in numerous photographs of people claiming to be members of the claim group engaging in activities within the claim area), the delegate described the information supporting a history of association as “generally quite scant and not in sufficient detail to support the assertion that there has been a history of association between the whole group and the claim area since the time of sovereignty or contact”, with the consequence that s 190B(5)(a) was not satisfied.

24 The delegate reached a similar conclusion in respect of s 190B(5)(b), which focuses on traditional laws and customs, after summarising at some length the information which had been provided in purported compliance with this requirement. The delegate found that, for the purposes of this requirement, the factual basis must clearly identify a relevant pre-sovereignty society but the application did not do that. The delegate’s conclusion on this issue is reflected in [151] of her reasons for decision:

151 Given the lack of information about the group’s predecessors and the indistinct references to a pre-sovereignty society and its laws and customs, it is difficult for me to infer that the factual basis is sufficient to support the link between the native title claim group, laws and customs now acknowledged and observed, and the relevant pre-sovereignty society. Within the material, there is no clear indication of the relevant pre-sovereignty society or sufficient account or explanation of how the laws and customs now acknowledged can be said to be traditional.

25 In respect of the requirement that there be a prima facie case for at least some of the native title rights and interests claimed in the application, as required by s 190B(6), the delegate found that because s 190B(5) was not satisfied, it necessarily followed that the prima facie case requirement could not be satisfied.

26 Finally, as to the requirement that there be satisfaction on the part of the delegate of there being at least one member of the claim group who has or had a traditional physical connection with any part of the claim area, as required by s 190B(7), the delegate concluded that, having regard to her findings in respect of s 190B(5)(b) to the effect that it was not sufficient to support the assertion that there were traditional laws and customs, it followed that she could not be satisfied of the condition in s 190B(7).

27 For these reasons, even though the delegate found that there was compliance with numerous other relevant conditions, she refused to accept the application for registration under s 190A of the Act because of non-compliance with the conditions summarised above.

The applicant’s claims in the review

28 The applicant’s claims in the review proceeding are set out in the following materials:

(a) an affidavit dated 7 December 2015 of Gary Pappin, which is in the nature of submissions rather than evidence;

(b) a document entitled “Submission to the Federal Court of Australia From the Applicant” dated 22 August 2016;

(d) a document filed by the applicant on 21 September 2016 which contains inter alia a response to the submissions filed by both NTSCORP Ltd (NTSCORP) and the Attorney-General of NSW.

29 Annexed to Mr Pappin’s affidavit dated 7 December 2015 is a document by the Wakool Indigenous Corporation entitled “Preliminary Report on Muthi Muthi Genealogies April 2015”. No submission was made by the applicant in respect of that document and it appears that it was not before the delegate. I have taken the document into account in the review even though no specific submission was made in respect of it. I consider that the document should be given little or no weight in circumstances where:

(a) no information has been provided concerning the Wakool Indigenous Corporation or any authors of the document;

(b) there has been non-compliance with Practice Note GPN-EXPT relating to expert evidence; and

(c) none of the parties to the proceeding, including the applicant, has made submissions concerning the relevance of this document in the review.

30 The applicant also relied on additional evidentiary material which was not before the delegate in the form of an affidavit dated 23 August 2016 by Dr Anne Marshall and a Report dated September 2016 by Terra Rosa Consulting. For reasons given below, I consider that this fresh material attracts little if any weight.

31 Following the joinder on 10 March 2016 of NTSCORP as a respondent in the review, NTSCORP filed written submissions dated 6 May 2016. On 19 May 2016, the Attorney-General of NSW also filed written submissions.

32 The parties were content for the review to be heard and determined on the papers. Accordingly, there was no oral hearing.

Consideration and determination of the key issues arising from the applicant’s claims

33 It is convenient to consider and determine the applicant’s claims in the review by reference to the following key issues.

(a) Nature and scope of a s 190F review

34 The principles guiding the exercise of the Court’s review jurisdiction under s 190F of the Act are relatively well settled following the Full Court’s decision in Western Australia v Strickland [2000] FCA 652; 99 FCR 33 at [63]-[67] and may be summarised as follows (albeit by reference to s 190D which was the relevant section at the time):

(a) there is some similarity between a review under s 190F and a review of a decision made by an officer of the Court under a delegated power from the Court even though the Registrar does not exercise a delegated power. The Registrar exercises an administrative power in respect of a matter in which the Court has and is exercising jurisdiction;

(b) a s 190F review is not restricted to consideration and determination of a question of law and extends to determination of issues of fact; and

(c) the review may require re-determination of factual issues according to the material available to the Court and the Court is not restricted to considering material which was before the Registrar.

35 It is also generally accepted that the Court should exercise an appropriate degree of self-restraint in conducting a review, as is reflected in the following observations of French J in Strickland v Native Title Registrar [1999] FCA 1530; 168 ALR 242 at [44]:

44 It is important to bear in mind in the review process the main objects of the Act set out in s 3 which are unchanged by the amendments and particularly the object relating to the protection of native title. It is also necessary to bear in mind the administrative character of the registration test and the time constraints under which it is to be applied. A significant margin of appreciation must be allowed for the experience and detailed administrative knowledge of the Registrar and his delegates in making the largely evaluative judgments on whether applications comply with the statutory conditions of registration. Their reasons are not to be scrutinised finely and minutely with an eye keenly attuned to error – Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.

(b) Fresh evidence

36 As noted above, the Court is not restricted to the material which was before the delegate. That is not to say, however, that the Court must accept and act upon the fresh evidence.

37 In Anderson on behalf of the Numbahjing Clan within the Bundjalung Nation v Registrar of the National Native Title Tribunal [2012] FCA 1215; 297 ALR 660 (Anderson), Cowdroy J highlighted how the principles of evidence generally apply to expert reports in native title matters. His Honour reiterated the problem which had been raised in previous cases concerning the poor preparation of expert reports in native title matters (see Anderson at [15]):

This Court has, on prior occasions, expressed a complaint relating to the poor preparation of expert reports in native title matters: see for example Jango v Northern Territory (No 4) (2005) 214 ALR 608 and Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 7) (2003) 130 FCR 424. Shortcomings previously identified by the Court have included reports which have been prepared in accordance with terms of reference which are overly broad and imprecise; reports which lack sufficient lawyerly intervention in their preparation; reports which fail to distinguish between passages which have a factual basis and are based upon the expert's specialised expertise compared to statements which are mere advocacy; and reports which do not pay regard to the law of evidence, the Rules and Practice Note CM7.

38 Many of these shortcomings are evident in the Report by Terra Rosa Consulting. The Report is little more than a full page in length in total. The Report does not comply with the requirements applying to expert reports as set out in r 23.12 of the Federal Court Rules 2011 (the 2011 FCRs) or the Federal Court of Australia’s Expert Evidence Practice Note (GPN-EXPT). Although the Report identifies the people who were involved in its preparation, no curriculum vitae was attached for any of those persons. It is also evident that the Report, which only purports to provide what were described as “preliminary results” was based upon “consultation” which was conducted between 19 and 20 September 2016. In the brief introductory section of the Report which describes its scope, no detailed description is given of the instructions to prepare the report other than a reference to the fact that Mr Pappin had engaged the firm “to address some of the concerns raised by the Delegate of the Native Title Register (sic) regarding Federal Court application NSD 1248/2014”. The overview in the Report also refers to a senior anthropologist, Lucy Chisholm, undertaking “a review of the desktop research, claim application and other background material” and that another anthropologist, Luke May, and a director of the consulting firm, Scott Chisholm, conducted “a field consultation in Balranald, NSW at the home of other (sic) claim applicant Jean Charles”. A field consultation was said to have been carried out between 19 and 20 September 2016 with senior Muthi Muthi traditional owners, Jean Charles, Mary Pappin and Patricia Winch. Two other persons who were present are also identified and it is stated that “other Muthi Muthi people” were also present. The Report then contains a statement that the “senior traditional owners in attendance claimed connection to the group through their mother Alice Kelly (nee Pearce) and confirmed that this is determined by matrilineal descent”.

39 The body of the report, which occupies less than one page, and is set out under the heading “Preliminary Results”, is as follows (without alteration):

During the consultation senior Muthi Muthi ladies clarified that:

• Jean Charles is the recognised Muthi Muthi elder to speak on behalf of the native title group;

• That the decision-making process is a hereditary system;

• In accordance with traditional law and custom, decision-making powers are held by the senior female heads of the family;

• The Elders council referred to in the claim for application operates in the form of an advisory-committee to the recognised heads of family; and

• As a pragmatic decision in the pursuit of a registered native title claim, Gary Pappin has been endorsed by the above process, to be both an applicant and the key contact in getting the claim registered.

Based on our review of the research and consultation with the Muthi Muthi elders who live within the claim area our preliminary assessment is that there is a contemporary association of traditional custodianship and interests that would require further investigation in the course of a native title claim. The senior women stated that contemporary Muthi Muthi society could hold more than 500 people, as indicated by the number of apical ancestors. We believe that further research and consultation will provide a stronger basis for claiming native title.

40 The deficiencies in this purported expert report are self-evident. They include:

(a) a failure to provide appropriate information concerning the expertise and qualifications of the authors;

(b) the limited nature of the research which was carried out in preparation of the Report;

(c) the fact that the Report does no more than record what are described as “preliminary results” and a “preliminary assessment” which requires further investigation; and

(d) the Report does little more than record claims which were made by “senior Muthi Muthi ladies” in the course of the limited consultation.

41 In these circumstances, I consider that the Report carries little if any weight and does not advance the documentary material which was before the delegate concerning the matters to which it relates.

42 As noted above, the applicant also relied on an affidavit by Dr Marshall, who described herself as a member of the “Muthi Muthi tribe of Aboriginal people” and that she is an Elder and head of her family group. No information is provided as to Dr Marshall’s qualifications or expertise and it is unclear whether or not the affidavit is relied upon as expert evidence. If that is the case, it suffers from some of the deficiencies described above in respect of the Report in failing to provide appropriate information to qualify the author as an expert.

43 Dr Marshall stated that the Muthi Muthi people “have a decision-making process that follows traditional laws and customs” but that statement is not developed other than to say that the process involves the meeting when necessary of “a council of Elders… to make decisions about the tribe and our country” and that the council forms part of the tribe’s burbang (or ceremony) and is only conducted on our traditional country. Dr Marshall also stated that Jean Charles is the headperson of the council and, as such, has full authority to speak and act on behalf of the Muthi Muthi tribe on all matters. Dr Marshall then refers to her awareness of a meeting held on Tuesday, 12 August 2014 and that she accepted “the decisions made by the Elders at that meeting”. Dr Marshall also stated that, under traditional law and custom, Mr Pappin and Jean Charles “are obligated to deal with all matters related to our land and boundaries” including the native title application the subject of these proceedings.

44 For reasons that which will be developed below, I do not consider that this affidavit takes matters any further in relation to the delegate’s concerns regarding the inadequacy of information relating to various relevant statutory requirements.

45 As noted above, the delegate found that the condition in s 190C(2) was not met by reference to s 62(2)(b) and the requirement that the application contain a map which showed the boundaries of the area covered by the application. The first basis for this finding was what the delegate described as the “significant inconsistencies” between the description of the claim area in Sch B of the application and the map. I consider that this finding was flawed in circumstances where it was made clear in the application that, in the event of any inconsistency, the information contained in Sch B prevailed.

46 However, that is not sufficient to uphold the applicant’s challenge to the delegate’s decision on this issue in relation to ss62(2)(a) and (b) because the delegate also relied upon an alternative basis for her finding of non-compliance. That is that the description of the claim area was expressed to exclude areas that were of an inherently variable character. I am not satisfied that the applicant has established any reviewable error in relation to this alternative basis. The variability of the area related to the fact that the description excluded all areas covered in the three separate native title determination applications unless any of those relevant claims was dismissed or determined in the negative. In those circumstances, it was open to the delegate to reason that these conditional exclusions “could lend uncertainty, at any given time, to the area covered by the application because it would essentially be variable”.

47 In the applicant’s submission dated 22 August 2016, it is stated that the applicant is “happy to amend the description of schedule C to exclude neighbouring claims (as attached marked Schedule C – Proposed amendment to NSD1248/2014 allowable under section 64(1)(a)…”. There are two things to note about this statement. The first is that no proposed amendment was in fact attached to the submission. Secondly, and more significantly perhaps, even if the proposal had been implemented it would not address the second and alternative basis for the delegate’s adverse finding because the proposed amendment related only to the map which would not overcome the inconsistency between the narrative description in Sch B and the map nor the variability depending upon the outcome of the three other separate native title applications.

(d) Certification/authorisation (s 190C(4)(a) and (b))

48 As noted above, the delegate found that there was insufficient evidence in the application that the Elders Council is a body that exists under customary law and has the power to make decisions on behalf of the native title claim group and that, further, there was inconsistency in the information contained in the application regarding the decision-making authority within the Muthi Muthi claim group. Accordingly, again, there are two alternative bases for the delegate’s adverse finding in respect of this matter.

49 I accept that there is some force in the applicant’s criticisms of the second basis for the delegate’s finding. In particular, I do not accept the delegate’s finding that there was an internal contradiction in the reference to the basis of Jean Charles’ authority relating to both her inheritance of, and election to, the position of headperson of the Elders Council. In my respectful view, the information in the application, which included Jean Charles’ affidavit, made reasonably clear that while Jean Charles inherited her position on the Elders Council as head of her family clan group, she was separately elected as headperson of the Muthi Muthi tribe by the Elders Council and that, in her capacity as headperson of the tribe, she had full authority to speak and act on behalf of the tribe on all matters.

50 The position is different, however, in respect of the first and alternative basis for the delegate’s adverse finding. In my respectful view, it was open to the delegate to conclude that, notwithstanding the contents of the affidavits which accompanied the native title application and the contents of Sch R (which the delegate described in [65] and [66] of her reasons for decision), there was no clear information in the application which described the basis of the existence of the Elders Council under customary law and the extent of its authority under the relevant traditional laws and customs to make decisions binding on all members of the native title claim group.

51 In respect of this matter, I consider that the delegate correctly relied upon Moran v Minister for Land & Water Conservation for New South Wales [1999] FCA 1637 (Moran), which established that reliance on a decision-making body such as the Elders Council requires evidence:

(a) that such a body exists under customary law recognised by the members of the group;

(b) regarding the nature and extent of the body’s authority to make decisions binding upon members of the group; and

52 The lacuna in the evidence is not overcome by claims that Mr Pappin and Jean Charles were authorised to make and pursue the native title application on behalf of the native title group. That is because their respective authorisations ultimately depended upon the Elders Council and it was reasonably open to the delegate to find that the evidence was inadequate regarding the membership of the Elders Council and the extent of that body’s authority to direct decisions by Mr Pappin and Jean Charles in respect of matters arising in the course of pursuing the claim.

53 Contrary to the applicant’s submission, I do not consider that these matters are overcome by the contents of Attachment A to the application. That Attachment is entitled “Native Title Claim Group”. The delegate acknowledged in [70] of her reasons for decision that there was a reference in that material to “Notes on the Social Organisation of Australian Tribes”. This is a reference to a paper authored by A.L.P. Cameron, which was included in the bibliography to Attachment A. The delegate also noted that there were references in Attachment A to “a camp council [Elders council]” and the “democratic processors for electing headpersons”. Nevertheless, the delegate concluded that there was insufficient evidence upon which she could be satisfied that the Muthi Muthi Elders Council is a body which existed under customary law and had power to make decisions on behalf of the native title claim group. Having regard to the contents of Attachment A, I consider that it was reasonably open to the delegate to come to that view.

54 The applicant’s claim that there are “numerous other references in Attachments E, F and M” of the native title application which described the decision-making of the Muthi Muthi tribe and its clans, the tribal headperson (described as the Waipipa) and the meetings and corroboraries of the Muthi Muthi peoples, however, no specific reference is made to particular parts of those attachments which deal with those matters and I accept the submission of NTSCORP that, apart from the references to the Elders Council in Attachment A to which the delegate referred in her decision, the application does not contain any further evidence on these matters.

55 The applicant’s submissions dated 22 August 2016 take this matter no further. Reliance is placed there on the evidence of Dr Marshall and the Report of Terra Rosa Consulting in relation to the authorisation process. Even if the applicant’s claims be accepted that these documents “identify the existence of a traditional consensus decision-making body of the Muthi Muthi people” and that the documents “identify Jean Charles and Gary Pappin as authorised to make decisions in regards (sic) to Native Title”, neither document addresses the shortcomings identified by the delegate concerning the Elders Council. The significant shortcomings of the Report have been referred to above. Contrary to the applicant’s submission, merely because the Report contains a statement in the section dealing with “Preliminary Results” to the effect that, during the firm’s consultation with senior Muthi Muthi ladies, it was clarified that the Elders Council “referred to in the claim for application operates in the form of an advisory-committee to the recognised heads of family” leaves unanswered many questions concerning the nature and powers of the Elders Council and the extent of its authority to direct decisions by the applicant in relation to the native title application. These deficiencies in the evidence are not overcome by Dr Marshall’s affidavit having regard to the problems with that affidavit as found above.

(e) Identification of claim area (s 190B(2))

56 The applicant’s claims in relation to this matter are rejected for similar reasons to those given above in respect of s 190C(2) and the map. In brief, even if the delegate erred in respect of her findings concerning the map, no reviewable error has been established in respect of her alternative finding concerning the variability of the description in Sch B of the claim area.

(f) Identification of native title claim group (s 190B(3))

57 As noted above, the native title claim group was described in Sch A of the application (see [21] above). Attachment A to the application contained descriptive material about Muthi Muthi people from various secondary sources and a bibliography was included.

58 As noted above, the delegate was not satisfied that Sch A described the persons in the group sufficiently clearly so that it could be ascertained whether any particular person is in the group. For the following reasons, I reject the applicant’s claims that the delegate erred in reaching that conclusion.

59 As noted above, s 61(1) of the Act provides that an application for determination of native title may be made by a person or persons authorised by all the persons (referred to as the “native title claim group”) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claim.

60 Note No 2 to the table in s 61(1) cross-refers to s 251B as to what is meant by a person or persons being authorised by all the persons in the native title claim group. Section 251B provides:

Authorising the making of applications

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind--the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b) where there is no such process--the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

61 As also noted above, s 61(4) of the Act requires that a native title determination application made by a person authorised by the native title claim group must:

(a) name the persons; or

(b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

62 It is now established that the reference to “native title claim group” in the table to s 61(1) imposes requirements not only in relation to the question of authorisation of the applicant, but also in respect of the question whether an application has been made on behalf of a “native title claim group” (see Risk v National Native Title Tribunal [2000] FCA 1589 (Risk) at [29] and [30] per O’Loughlin J:

29 The principal question to be addressed in these proceedings is the correct interpretation of the term “native title claim group”. One of the consequences of the amendments to the Act in 1998 was the better identification of native title claim groups. The Act now ensures that applications can only be lodged on behalf of properly constituted groups - not individuals or small sub-groups. This approach is consistent with the principle that native title is communally held. As Deane and Gaudron JJ said in Mabo v Queensland No 2 (1991-1992) 175 CLR 1 at 109-110 “ordinarily, common law native title is a communal title, and the rights under it are communal rights enjoyed by a tribe or other group.” In State of Western Australia v Ben Ward and Others [2000] 170 ALR 159 at par 181 Beaumont and von Doussa JJ said:

Under the new Act the person or persons named becomes the applicant (s 61(2)) and s 251B describes the way in which a native title claim group may authorise the person or persons bringing the application. The NTA plainly contemplates a claim by a group or community of people.

30 The importance of the term (“native title claim group”) is apparent from its appearance in the table that forms part of subs 61(1) of the Act. Subsection 61(1) imposes requirements not only in relation to the question of authorisation, but also in relation to the anterior question of whether the application has been made on behalf of a “native title claim group”. An application which is not made on behalf of a “native title claim group” cannot validly proceed. By operation of subs 190C(2) the Registrar must be satisfied in relation to all the requirements contained in s 61. It follows that, when applying the registration test, the Registrar must consider whether (on the basis of the application and other relevant information) the application has been made on behalf of a “native title claim group”.

63 Subsequently, in Quall v Risk [2001] FCA 378 at [67], O’Loughlin J described the proper identification of the native title claim group as going to “the heart of a native title claim”. In Edward Landers v State of South Australia [2003] FCA 264, Mansfield J described at [35] that the proper identification of the native title claim group “is the central or focal issue of a native title determination application”. Justice Wilcox subsequently stated in Bodney v Western Australia [2003] FCA 890 at [36] that the proper identification of the native title claim group requires there to “be a strict correspondence between the identity of the group that is claimed to hold the native title and the group on whose behalf the claim is made”.

64 Against the background of those requirements, the delegate found that the description of the claim group was deficient because it provided no real or obvious starting point with which to commence an inquiry as to whether or not a particular person formed part of that group (see [21] above). In particular, the delegate identified the following deficiencies in the description of the claim group in Sch A:

(a) the reference to members of the Muthi Muthi “being matrilineal descendants of the Indigenous ancestors identified with the Native Title Claim Area…” was too ambiguous and was deficient in not naming the ancestors to whom the criterion applied;

(b) as to the reference to a Muthi Muthi person not being “multi-clan”, the delegate described that reference as confusing because, although the first part of the criterion suggested that all Muthi Muthi people could not be multi-clanned, reading the criterion as a whole, it seemed that it is only Muthi Muthi men who cannot be multi-clan; and

(c) as to paragraph 2 of the description, which specifies additional criteria against which other people may become members of the native title claim group, the delegate noted that the description did not refer to the relevant laws and customs by which persons are adopted into the group, nor was such information set out elsewhere in Attachment A.

65 In my respectful view, it was open to the delegate to make these findings concerning the inadequacies of the description of the native title claim group. The applicant relied upon some observations of Dowsett J in Gudjala People No 2 v Native Title Registrar [2007] FCA 1167 (Gudjala People) at [33]:

Although it is not easy to be sure, I believe that I have disposed of all of the applicant's arguments concerning the description of the claim group. However, in the end, it is for me to consider whether the Delegate should have been satisfied as to compliance with subs 190B(3). I must form my own view as to that matter. The question is not without difficulty. The better view is that the identification of the claim group as the descendants of the apical ancestors is the asserted outcome of the correct application of traditional laws and customs observed by the Gudjala People, although those laws and customs are not identified. It is curious that laws and customs concerning physical, spiritual and religious association, genealogical descent and processes of succession should lead to the outcome that the only people who have “communal native title” in the area are the descendants of four apical ancestors. One would have thought it more likely than not that some such descendants, although satisfying the laws relating to genealogical descent, would fail in connection with physical, spiritual and religious association and/or processes of succession. As the laws and customs in question are not identified, this curiosity cannot be resolved. However subs 190B(3) requires only that the members of the claim group be identified, not that there be a cogent explanation of the basis upon which they qualify for such identification.

66 Those observations were made in the context of the claim group in that case having been identified in the application as comprising all persons descended from four named ancestors. That is to be contrasted with the position here where, for reasons given above, as the delegate found, inadequate information was provided in the description to identify who were the original ancestors which provided the starting point for identifying members of the group. In my view, Dowsett J’s observations must be read in the context in which they were made and they do not assist the applicant here.

67 None of the other matters raised by the applicant demonstrates any reviewable error in the delegate’s finding that there was non-compliance with the requirement in s 61(4)(b) of the Act that the application described the persons “sufficiently clearly” so that it can be ascertained whether any particular person is one of those persons.

68 The applicant also made submissions concerning the proper construction of the term “sufficiently” in the phrase “sufficiently clearly” in s 61(4)(b). It was argued that the word “sufficiently” simply meant “enough” rather than “adequate”, with the consequence that the requirement would be satisfied if the description was sufficient or enough even if it was not adequate, citing Cavallari v Premier Refrigeration Co Pty Ltd [1952] HCA 26; 85 CLR 20 (Cavallari). It is difficult to understand the relevance of that decision to the issue here. Cavallari involved an action for specific performance of an alleged contract for the sale of land. The sole question was whether there was a contract between the parties, which turned on the construction and effect of two letters. In that context, particular significance attached to the meaning of the words in one letter that “I will require a period of not less than six months to enable me to make arrangements re my business plan etc”. No issue was raised in Cavallari as to the meaning of the words “sufficiently”.

69 It appears that the applicant’s submission concerning the meaning of “sufficiently” is sourced in the definition of “sufficiency of consideration” in LexisNexis Concise Australian Legal Dictionary at 610:

sufficiency of consideration – Validity or effectiveness of the price given as value for a promise. Sufficient consideration is often described as “good” or “valuable” consideration: Wigan v Edwards (1973) 1 ALR 497; 47 ALJR 586. Consideration may be sufficient without being adequate. A purely nominal consideration will suffice to make a contract: Cavallari v Premier Refrigeration Co Pty Ltd (1952) 85 CLR 20…

(emphasis in underlined words).

70 To the extent that Cavallari stands for the proposition cited in that passage, it provides no support at all for the applicant’s construction of the phrase “sufficiently clearly” in s 190B(3).

71 In my view, having regard to the context in which the phrase “sufficiently clearly” appears, the word “sufficiently” is to be given its ordinary meaning, which is reflected in the following definitions in the Macquarie Dictionary:

sufficient… 1 that suffices; enough or adequate: significant proof, sufficient protection…

72 The ordinary meaning of the word sufficient (or sufficiently) is synonymous with the word “adequate” or “adequately”. The distinction which the applicant seeks to draw between those two concepts is predicated on a misconception as to the relevance in this context of the meaning of “sufficient consideration” in the law of contract.

73 The applicant also relied upon some observations in Shaw v Wolf (1998) 163 ALR 205 at 211-212 in support of the contention that apical ancestry may be redundant in some instances. That may well be the case, however, it does not avoid the fact that the description of the native title group here elected to use apical ancestry. Similarly, it may be accepted that because of the size of the population of Muthi Muthi people at the time of sovereignty, it would be impossible to name the apical ancestors in their entirety, as submitted by the applicant. The fact remains, however, that the applicant chose to define the group in the manner that it did and it is not an adequate answer to say that reliance must be placed on “oral histories and acceptance into the tribe based on traditional laws and customs that only other members of the tribe would be aware of”.

(g) Factual basis for the claimed native title (s 190B(5))

74 As noted above, the delegate considered whether or not there was a sufficient factual basis to support each of the assertions relating to the association of the claim area; the traditional laws and customs of the original society; and their continuity over the period since sovereignty (ss 190B(5)(a)-(c)). The delegate’s analysis of these is to be found in [100]-[156] and resulted in her finding that the application did not satisfy the condition in s 190B(5) because the factual basis provided was not sufficient to support each of the three particularised matters in that provision.

75 In arriving at that conclusion, the delegate acknowledged that her role was not to determine whether or not the facts of the claim were “true”, but rather was to decide whether those facts were “sufficient to support each [relevant] assertion”. This approach is consistent with Gudjala People at [39] per Dowsett J. Section 62(2)(e) of the Act requires that an applicant provide any application a “general description” of the factual basis for the three criteria set out in s 190B(5). In determining whether or not to register a claim, an applicant is not required to provide evidence which proves the claim, rather the applicant is required to provide “sufficient detail to enable a genuine assessment of the application… and … something more than assertions at a high level of generality” (Gudjala People No 2 v Native Title Registrar [2008] FCAFC 157; 171 FCR 317 at [92] per French, Moore and Lindgren JJ).

76 In my respectful opinion, none of the applicant’s claims of reviewable error on the part of the delegate in respect of this matter has substance.

77 First, the applicant’s submissions dated 22 August 2016 in relation to this matter give prominence to the applicant’s assertion that the delegate adopted an incorrect construction of the word “sufficient”. For reasons given above, this contention is rejected. In my respectful view, the delegate adopted and applied the correct construction of the word “sufficient” for the purposes not only of s 190B(3)(b) (in the context of the phrase “described sufficiently clearly”) but also in the context of the use of the term “sufficient” in s 190B(5).

78 Secondly, the applicant contended that information contained in the attachments of the native title application “show that in this case the evidence of and continuance of traditional customs, rights and interests indeed exists”. This contention is evidently addressed to the criterion in s 190B(5)(b), namely 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 sufficiency of the factual basis for this assertion was considered by the delegate at some length at [131] to [152] of her reasons for decision. That analysis contains numerous references to various parts of the native title application and its attachments pertaining to this matter. The delegate acknowledged that this material provided some information about the tribal and clan system of which the Muthi Muthi are said to be part; about the traditional customs of the Muthi Muthi, including those relating to fishing and hunting practices and ceremonial obligations; and about accounts by the current claimants of laws and customs which are said to be a continuation of tradition. The delegate concluded, however, that this material was insufficient to meet the relevant test as identified by Dowsett J in Gudjala People No 2 v Native Title Registrar [2009] FCA 1572; 182 FCR 63 (Gudjala People (2009)) at [27], namely that:

… The relevant enquiry is as to laws and customs acknowledged and observed by an existing claim group, laws and customs acknowledged and observed by a pre-sovereignty society and the connection between those societies and between the laws and customs attributable to them. As is pointed out in Yorta Yorta, a society and its and customs are inextricably linked.

79 The difficulty the delegate found in applying that test here was that the application failed clearly to identify a relevant pre-sovereignty society. This was because, while the Muthi Muthi were referred to in Sch F as “a distinct Aboriginal society who continue to exercise a body of traditional laws and customs”, Attachment F contained references to three other groups (namely the Kulin Nation, the Paarkinja Nation and the Wiardjuri Nation) under the heading of “traditional laws and customs that give rise to the claimed native title”. The delegate said that it was unclear which of these societies was the relevant pre-sovereignty society. Furthermore, the delegate stated that there were references to a number of different tribes, clans, groups and nations in other attachments to the application. The delegate also noted other information in Attachment A which suggested that the Muthi Muthi tribe formed part of a nation which was distinct from the nations referred to above but that there was no consistent or clear information in the material about this “… and the traditional laws and customs that were acknowledged and observed by this society prior to sovereignty”.

80 In [147] of her reasons for decision, the delegate concluded that, whichever was the relevant society, there was a lack of information about relevant traditional laws and customs that are said to give rise to the native title rights and interests claims. While the delegate acknowledged in [150] that there was “some material” which supported current claimants’ observance of laws and customs in relation to the relevant land and waters and that it might be assumed that these laws and customs were handed down from previous generations, that simply amounted to an assertion that laws and customs were traditional because they had been handed down from generation to generation.

81 In [151], the delegate concluded that the lack of information about the native title group’s predecessors and the indistinct references to a pre-sovereignty society and its laws and customs made it difficult to infer that the factual basis was sufficient to support the link between the native title claim group, the laws and customs now acknowledged and observed, and a relevant pre-sovereignty society.

82 In my view, these conclusions were reasonably open to the delegate on the material before her. Moreover, I do not consider that the further material which the applicant has provided to the Court overcomes the difficulties identified by the delegate. In the submissions dated 22 August 2016, the applicant made specific reference to the statement in the Report of Terra Rosa Consulting that, based on that firm’s review of the research and consultation with Muthi Muthi Elders who live within the claim area the firm’s “preliminary assessment is that there is a contemporary association of traditional custodianship and interests that would require further investigation in the course of a native title claim” (emphasis added). The emphasised words are omitted from the applicant’s submission. Having regard to the shortcomings in the Report as identified above, I do not consider that this material overcomes the deficiencies identified by the delegate on the basis of the material before her. The firm’s “preliminary assessment” involves little more than an adoption of the assertions made by the persons who were consulted during the brief period of consultation. While fully acknowledging that this review does not relate to a determination of whether or not native title exists and is confirmed to the question of registration, I am not persuaded that a different view should be taken of the matter to that arrived at by the delegate. For completeness, I should add that Dr Marshall’s affidavit takes the matter no further. Dr Marshall asserts that the Muthi Muthi people “are a distinct society with tribal obligations that continue from pre-European settlement of our country”, but she provides no adequate explanation for that statement.

83 Thirdly, the applicant contended that the delegate lacked competency to assess the claim for registration because of the reference in [124] of the delegate’ reasons for decision to her understanding that the factual basis was that the Muthi Muthi people “are primarily a language group or tribe, whose traditional country falls within the claim area”. This reference is made by the delegate in the context of her consideration as to the sufficiency of the factual basis for the assertion identified in s 190B(5)(a), which relates to whether the native title claim group has, and the predecessors of those persons had, an association with the area. The applicant complains that, because a “language group” is not a “tribe”, the delegate was incompetent to assess the claim for registration. The applicant proffers no evidence to support this assertion. The delegate was simply seeking to express her understanding of the way in which the applicant’s claim was put, by reference to the material contained in the application and its attachments. The delegate correctly noted at [105] that Attachment A of the application contained information about the Muthi Muthi people, “including that the Muthi Muthi people are a tribe”. Equally correctly, the delegate noted in that paragraph that the information in Attachment A suggested that “language was a commonality” and specific reference was made to parts of that information. I am not persuaded that the applicant has established any reviewable error in respect of these matters. In any event, even if they did, it is evident that there were many other reasons why the delegate found that the factual basis was insufficient to make a positive finding under s 190B(5) and no reviewable error has been established in respect of that alternative reasoning.

(h) Prima facie case (s 190B(6))

84 The relevant requirement is that the Registrar must consider that, prima facie, at least some of the native title rights and interest claimed in the application can be established. The reasons why the delegate was not satisfied that this requirement was met was set out in [157] to [159] of her reasons for decision. Those reasons briefly stated in circumstances where the delegate adopted and applied the view expressed by Dowsett J in Gudjala People (2009) at [84] that, where s 190B(5) is not satisfied, it necessarily followed that s 190B(6) cannot be satisfied. I am not persuaded that this approach is clearly wrong nor that the delegate fell into reviewable error in concluding that s 190B(5) was not satisfied.

(i) Traditional physical connection (s 190B(7))

85 The essence of the delegate’s reasons for concluding that the application did not satisfy this condition was because that conclusion necessarily followed from her finding that there was no sufficient factual basis to support the assertion in s 190B(5)(b) relating to traditional laws and customs.

86 The applicant’s review challenge to this finding required the Court to be satisfied that the delegate fell into reviewable error in respect of her findings concerning s 190B(5), including paragraph (b) thereof. For the reasons given above, no such reviewable error has been established.

Conclusion

87 For these reasons, the originating application for review under s 190F of the Act should be dismissed. Neither NTSCORP nor the Attorney-General of NSW sought costs. Accordingly, there will be no order for costs.

88 The originating application for review did not specify any relief sought by the applicant. However, the applicant’s submission dated 22 August 2016 stated that the following orders were sought (without alteration):

a. that the Court accept the application for registration; or otherwise that

b. the Court proceed the application without registration; and,

c. the National Native Title Tribunal is removed as a respondent; and

d. NTSCORP is removed as a respondent; and

e. the claim be notified; and

f. there are no orders as to costs.

89 I am not persuaded that the Court should make any of these orders. Order (a) is inappropriate having regard to my determination that the originating application for review should be dismissed. As to order (b), no such formal order is required and it is a matter for the applicant to press its application for a native title determination in the usual manner.

90 As to the other orders sought by the applicant concerning the removal of the National Native Title Tribunal and NTSCORP as respondents, there is no basis for making such orders in circumstances where the proceeding relating to the originating application for review of the delegate’s decision has been dismissed. The question of who is a proper party as a respondent in the substantive application for determination of native title can be considered and determined in the context of that proceeding. It is to be noted that on 10 March 2016, the Court made an order joining NTSCORP as a respondent to the proceeding, which proceeding was the application for review under s 190F of the Act.

91 As to proposed order (e), i.e. that the claim be notified, I do not consider that such an order is appropriate in circumstances where the applicant has not demonstrated that the Registrar will not fulfil the obligation to give notice of the native title determination in accordance with s 66 of the Act.

92 Finally, as I have already indicated, there will be no order as to costs.

I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate:

Dated: 9 February 2017

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