FEDERAL COURT OF AUSTRALIA
ORDERS
Applicant | ||
AND: | First Respondent ROSIE MULLIGAN Second Respondent SAMMY COSTAIN (and another named in the Schedule) Third Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The decision of the fourth respondent to accept the Warlangurru #2 application for registration on 2 December 2016 be set aside.
2. The fourth respondent amend the Register of Native Title Claims so as to remove the entry of the Warlangurru #2 application.
3. There be no order as to costs, unless the applicant moves for costs within 21 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BARKER J:
1 This judgment concerns the proper application of s 190C(3) of the Native Title Act 1993 (Cth) (NTA), in circumstances where two claimant applications, made in respect of land and waters in the vicinity of Fitzroy Crossing in the Kimberley Region of Western Australia, overlap.
2 The first claimant application in time is that of the Bunuba People, known as the Bunuba #2 application. The second in time is that of the Warlangurru People, known as the Warlangurru #2 application. Until the Warlangurru #2 application was lodged there was no overlap between the two claims.
3 Indeed, until the Warlangurru #2 application was made, the earlier Warlangurru #1 claim abutted the Bunuba #2 application. But for the overlapping of the two claims, there would be no current issue arising under the NTA.
4 The current issue arises because of the terms of s 190C(3) of the NTA, which provides that:
(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
(c) the entry was made, or not removed, as a result of consideration of the previous application under section 190A.
5 As a matter of fact, one Grace (or Gracie) Mulligan was at material times a member, at least on the face of it, of the Bunuba #2 claim group, being a descendant of one of the apical ancestors identified in the Bunuba #2 application. At the time when the Bunuba #2 application was initially made, and the Warlangurru #1 application only abutted it, the question of Grace Mulligan also being a member of the Warlangurru claim group was not material to either of the earlier claims. An Aboriginal person may, by different traditional pathways, be a member of more than one claim group. A difficulty arises, however, where a claim group makes an application for determination of native title over land and waters already the subject of a claimant application made on behalf of a claim group which has a common member.
6 In this case, Grace Mulligan was in fact one of the persons who comprise the applicant under the NTA for the purposes of the Warlangurru #1 application.
7 In the Warlangurru #2 application, which overlaps the Bunuba application, she is not named as one of the persons comprising the applicant, but her mother, Josie Mulligan, is. The claim group description in each of the Warlangurru claims is exactly the same. Perhaps the change from daughter to mother as a member of the applicant was designed to avoid the problem that is now before the Court.
8 When a claim is made, the Native Title Registrar must consider the claim for entry on the Register of Native Title Claims, pursuant to Pt 7 of the NTA.
9 By s 190A(3), in considering a claim the Registrar must have regard to the criteria there specified in paras (a), (b) and (c), which provide:
(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.
10 A test for registration is set out in s 190A(6). Relevantly, for present purposes, the Registrar must accept a claim for registration if it satisfies all of the conditions in s 190C (which deals with procedural and other matters). It is that provision which brings s 190C(3) in to play in this case.
11 Here, the Registrar, by his delegate, decided that the Warlangurru #2 application could be entered on the Register and was relevantly satisfied that the conditions in s 190C(3) had been met.
12 In her reasons for so deciding, the delegate noted what information she had considered for the purposes of s 190A(3), and then set out the procedural steps she had undertaken, which included receipt and consideration of additional materials provided by the legal representative for the Warlangurru #2 applicant and submissions made on behalf of the State of Western Australia. The Bunuba #2 applicant was not consulted. That is not, however, an immediate issue, although it is contended by the Bunuba #2 applicant in this proceeding that if the delegate had sought additional information, as she should have, from it, it would have refused registration of the Warlangurru #2 application.
13 When it came to the all important question of the satisfaction of s 190C(3), the delegate noted that: the Warlangurru #2 application at Sch A and Att A describe the claim group; Sch H provided the details of the Bunuba #2 application (WC2012/004); and Sch C stated there were no common members between the Warlangurru #2 claim group and the claim group of the overlapping application – a reference to the Bunuba #2 claim group.
14 The Registrar noted that relevant information was contained in additional material provided by the Warlangurru #2 applicant, in particular a PowerPoint presentation attached to the draft minutes of a cultural meeting between Warlangurru and Bunuba representatives dated 26 November 2012, and an anthropological report by Dr de Rijke. She also noted the submissions of the State to which the Warlangurru #2 applicant had responded.
15 At [39] of her reasons, the delegate set out the claim group description for the Bunuba #2 application – a central consideration in this matter – which was in the following terms:
a) The descendants of the following ancestors: Mubu; Jaranggu; Jurrguna; Frank Edgar(Pilot); Limirruwa; Nindiligal; Dawanjina; Ganggula; Mangalanyi; Yambanana; Minyjinyji; Balylburru; Gijalamili; Jingirriban; Guburrmiya; Bundu; Ginyjiwul; Limadji;
b) The individuals, and their descendants, who have been or are being adopted or Marurr (people who are raised, grown up, embraced and acknowledged as a Bunuba person) by members of the Bunuba native title claim group, or by their predecessors, in accordance with the traditional laws and customs of the Bunuba people; and
c) Aboriginal persons who:
(i) self-identify as Bunuba; and,
(ii) are recognised by other members of the Bunuba native title claim group as Bunuba under traditional law and custom.
16 At [40], the delegate said that having compared the list of apical ancestors for the Warlangurru #2 application, as set out in Att A, with a list of apical ancestors for the Bunuba #2 application, it appeared there was no “obvious overlap” (emphasis in original) between the two lists. She also said that she could see no “obvious overlap” (emphasis again in original) between the persons described in paras (b) and (c) of the Bunuba #2 application and the application before her. I may note in passing that so much appears to be correct.
17 At [41], the delegate noted that the PowerPoint presentation stated that Gracie Mulligan is identified on the Bunuba Connection Report Genealogies “as a member of Muway Danggu, through her father Mick Michael. The same genealogies had been used to describe the claimant group for the Bunuba No. 2 claim” and this means that “Gracie Mulligan, and her descendants, are members of the Bunuba Claim and are also eligible to join the Bunuba PBC”. (It should be noted that the Bunuba People, by that claim description set out above, have already obtained a consent determination that native title exists in respect of an area of land and waters adjacent to the current overlap area.)
18 The delegate further noted that the PowerPoint presentation stated that “Muway Danggu is located around Fitzroy Crossing. The Muway for the Calwynyardah area is Mawanban”. She stated that elsewhere it was noted that this means that the Mulligan family has an historical association to the Calywynyardah area (that is, an area located within the claim area), noting that their Muway association is for the Fitzroy Crossing area, an area north of the claim area. Further, the delegate noted, Rosie Mulligan, one of the applicant persons for the Warlangurru #2 application and Grace Mulligan's mother, is noted as not being identified as a Bunuba person.
19 The question of whether s 190C(3) could be satisfied in circumstances where Gracie Mulligan was identified as a member of the Bunuba #2 claim group, while also being a senior Warlangurru claimant, was starkly brought to the delegate’s attention in the aforementioned submissions of the State. While it was noted that in one place “Gracie” Mulligan was referred and in another place “Grace” Mulligan was referred to, it appears that at all times the Registrar and all other relevant persons and parties proceeded on the understanding that Gracie and Grace were one and the same person – something not in issue in this proceeding.
20 The delegate then noted, at [43], the response to that submission, which was made on behalf of the Warlangurru #2 applicant, to the following effect:
the information in the PowerPoint presentation was merely the opinion of the Kimberley Land Council and had not been verified by Grace Mulligan; also, it was not possible to verify the information in the absence of source information;
the applicant's anthropologist, Dr de Rijke was not provided copies of the Bunuba Connection Report Genealogies for review; neither, to the best of the applicant's knowledge, had Grace Mulligan been given the opportunity to review and verify the report;
Grace Mulligan is not an applicant for the Bunuba claims nor a member of the Bunuba Dawangarri Aboriginal Corporation; and
“crucially”, Grace Mulligan does not qualify as a member of the Bunuba #2 claim group because she does not self-identify as a Bunuba person, as required by the claim group description.
21 At [44], the delegate correctly noted that her task was not one of finding in all respects the real facts on the balance of probabilities, or on some other basis, and she should not supplant the role of the Court when adjudicating upon matters such as that before her, referring to the authority of Northern Territory of Australia v Doepel (2003) 133 FCR 112; [2003] FCA 1384 at [16].
22 At [45], the delegate said that, having regard to the information before her, she was “satisfied on balance” that no person included in the native title claim group for the Warlangurru #2 application was a member of the native title claim group for any previous application. She said she made this finding, having formed the view that the information before her did not establish that Grace Mulligan was a member of the Bunuba #2 claim group. In this regard, the delegate stated:
From the information I understand that any association Grace Mulligan may have with the claim area (as opposed to Fitzroy Crossing, located to the east of the claim area, within the Bunuba determination area) is of an historical nature only. In addition and importantly, while it is not possible for me to independently verify this information, Grace Mulligan, on the basis of the information before me, does not appear to identify as a Bunuba person, as noted in the Dr de Rijke report, as Warlangurru. As such, and as submitted by the applicant, one of the criteria of membership to the Bunuba # 2 claim group is not met. Finally, I rely on the fact that Schedule O states that there are no common members with any previous overlapping applications (the Bunuba # 2 claim is referred to in Schedule H as an overlapping application) and that the application is accompanied by compliant s 62(1) affidavits, each of which states that the applicant believes that all the statements made in the application are true.
23 It is in these circumstances that the Bunuba #2 applicant seeks judicial review of the Registrar’s decision, made by the delegate.
24 Mr Kevin Dann and Mr Kevin Oscar comprise the applicant in the Bunuba #2 application WAD94/2012, in which they seek a determination that native title exists in the relevant claim area. Part of their claim was determined by consent on 22 December 2015, leaving this overlap area to be determined.
25 Treating them together as the applicant in this proceeding they seek judicial review of the Registrar’s decision to accept the Warlangurru #2 application for registration on the Register.
26 Having regard to the reasons for this decision provided by the Registrar, the applicant states the following grounds of review:
(1) The Registrar improperly exercised his power under s 190A of the NTA by deciding to accept the Warlangurru #2 application for registration because it was an exercise of power so unreasonable that no reasonable person could have so exercised the power. The particulars supporting this ground are dealt with below.
(2) There was no evidence or other material to justify the decision of the Registrar to accept the Warlangurru #2 application for registration. The particulars supporting this ground are also referred to below.
27 At the hearing, the applicant advanced a third, related ground, namely, that the delegate misconstrued the Bunuba #2 claim group description.
28 As agreed at the hearing, all grounds are related or overlap, each relying on the ground of legal unreasonableness.
29 The applicant seeks an order that the Registrar’s decision be set aside and the Register be amended so as to remove the entry of the Warlangurru #2 application.
Was the native title Registrar’s decision so unreasonable that no reasonable person could have so exercised the power under s 190A of the NTA?
30 The applicant alleges that:
(1) The delegate improperly exercised her power under s 190A of the NTA by deciding to accept the Warlangurru #2 application for registration because it was an exercise of power so unreasonable that no reasonable person could have so exercised the power: s 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).
Particulars
(a) No reasonable person would have been satisfied under s 190C(3) of the NTA that there was no person included in the Warlangurru #2 claim group whom was also a member of the Bunuba #2 claim group in circumstances where there was information that:
(i) Gracie Mulligan or Grace Mulligan may be the same person;
(ii) this person was identified in a Bunuba Connection Report Genealogies as a member of the Bunuba #2 claim group;
(iii) this person had not verified that she was or was not a member of the Bunuba #2 claim group; and
(iv) the Warlangurru #2 claim group’s anthropologist had not reviewed the Bunuba Connection Report Genealogies.
(b) No reasonable person would have been satisfied under s 190C(3) of the NTA that Gracie Mulligan or Grace Mulligan is not a member of the Bunuba #2 claim group on the basis she does not appear to identify as a Bunuba person when having regard to the description of the Bunuba #2 claim group, which properly construed consists of three independent not cumulative elements: [39] and [45] of the delegate’s reasons.
31 The key issue of fact and law raised by the applicant concerning this ground is that the Registrar could not be satisfied that no person included in the native title claim group for the application was a member of the native title claim group for any previous application, if “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”.
32 The applicant contends this question admits a yes or no answer which is determinative of whether an application should be accepted. The applicant refers to Doepel at [19].
33 At [37] of the delegate’s reasons, the applicant notes, the Registrar recorded the relevant information relied upon, including the PowerPoint presentation attached to the draft minutes of the meeting between Warlangurru and Bunuba representatives dated 26 November 2015.
34 The applicant says that, as identified in [41] of the reasons, the presentation stated that Gracie Mulligan was identified on the Bunuba Connection Report Genealogies as a member of the Muway Danggu, that these are the same genealogies used to describe the Bunuba #2 claim group, and that this means Gracie Mulligan and her descendants are members of the Bunuba #2 claim group.
35 The applicant says the Bunuba #2 claim group description is set out at [39] of the Registrar’s reasons and generally comprises descendants of apical ancestors, those adopted by members of the claim group, or Aboriginal persons who self-identify and are recognised by members of the claim group as Bunuba.
36 The applicant notes that [42] of the Registrar’s reasons records a submission by the State to the effect that Grace and Gracie Mulligan appear to be the same person and if so, the s 190C condition was not met.
37 The applicant says there is no express acknowledgment by the Registrar in the reasons that Grace and Gracie Mulligan is one and the same person, although it appears the Registrar assumed this to be the case. The applicant says, the material before the Registrar supported the conclusion that Grace and Gracie Mulligan were one and the same person. In that regard, the Registrar had two affidavits and an attendance sheet signed in the name of Grace Mulligan as Gracie Mulligan.
38 The applicant says that, at [43] of the reasons, the Registrar summarises the responsive submissions of the Warlangurru #2 claim applicants as to whether Grace/Gracie Mulligan was a member of the Bunuba #2 claim group, generally as follows:
the statement in the PowerPoint presentation is the opinion of the Kimberley Land Council;
the statement has not been verified by Ms Mulligan;
Ms Mulligan has not reviewed the Bunuba Connection Report Genealogies;
the anthropologist for the Warlangurru #2 claim applicants has not reviewed the Bunuba Connection Report Genealogies;
Ms Mulligan is not an applicant for the Bunuba claims or a member of the Bunuba Dawangarri Aboriginal Corporation; and
Ms Mulligan does not self-identify as a Bunuba person and this is required by the description of the Bunuba #2 claim group.
39 The applicant says that the Registrar's grounds for being satisfied that Ms Mulligan is not a member of the Bunuba #2 claim group are set out in [45], and the Registrar characterises the level of satisfaction as being "on balance".
40 Relevantly, the applicant says, the Registrar considered that the available information did not establish that Ms Mulligan was a member of the Bunuba #2 claim group, that "importantly" she did not appear to identify as a Bunuba person and that this was one of the criteria for membership of the Bunuba #2 claim group.
41 The applicant says the Registrar’s decision was legally unreasonable because there was material available to support a conclusion that Ms Mulligan was a member of the Bunuba #2 claim group, specifically the detailed and express statement in the presentation of the Kimberley Land Council, the relevant native title representative body for the Bunuba and Warlangurru #2 applications, that she was a member of the Bunuba group.
42 The Registrar has filed a notice submitting to the Court’s judgment. The principle submissions in response to the application are those made on behalf of the Warlangurru #2 claim applicants, who are the respondents apart from the Registrar. They submit it was a reasonable conclusion of the Registrar that self-identification as a Bunuba person is a necessary prerequisite for membership of the claim group for the Bunuba #2 application and that Grace Mulligan does not self-identify as a Bunuba person, and so does not satisfy the criteria for membership of the Bunuba #2 native title claim group set out at [15] above, as the Registrar said at [39], and [41] to [45].
43 They submit that the Bunuba #2 claim group has four criteria: descent; adoption; self-identification as Bunuba; and recognition by other Bunuba.
44 They accept that not all of the four criteria are cumulative.
45 But they argue that it is a reasonable conclusion of the Registrar that the descent criterion and the adoption criterion are alternative criteria. However, the use of conjunctive “and” between sub-paras (b) and (c) and between sub-paras (c)(i) and (c)(ii) is indicative of an intention that the criteria of self-identification and recognition are cumulative criteria, with either descent or adoption, necessary to satisfy the requirements of membership of the Bunuba #2 claim group.
46 The Registrar was, therefore, these applicants submit, correct to conclude that the application satisfies the condition.
Was there an absence of evidence or other material to justify the delegate’s decision to accept the Warlangurru #2 application for registration?
47 The applicant alleges:
(1) There was no evidence or other material to justify the decision of the delegate to accept the Warlangurru #2 claim for registration: s 5(1)(f) of the ADJR Act.
Particulars
There was no information before the delegate capable of reasonably satisfying him for the purposes of s 190C(3) that Gracie Mulligan or Grace Mulligan was not a member of the Warlangurru #2 claim and Bunuba #2 claim groups.
48 The applicant says that, in determining whether the Registrar was satisfied that there was no common claim group member, it appears from the reasons that the Registrar went about this task by, instead, being satisfied that it had not been established that Grace Mulligan was a Bunuba #2 claim group member.
49 The applicant says that making an inquiry of whether Grace Mulligan was not a Bunuba #2 claim group member was an obvious task to be undertaken by the Registrar, and the Registrar could easily have obtained evidence going to that question.
50 In that regard, the applicant says the Registrar was put on notice by the submissions of the Warlangurru #2 applicants that Grace Mulligan and the applicants’ anthropologist had not reviewed the Bunuba Connection Report Genealogies. The Registrar, the applicant says, ought reasonably have concluded from those submissions that the applicants had been and could be in communication with Grace Mulligan and their anthropologist and/or reasonably have known that the Bunuba Connection Report Genealogies were in the possession of the Kimberley Land Council, as the relevant native title representative body.
51 In those circumstances, the applicant submits, the Registrar ought reasonably have made inquiries of the representative body and the applicant in order to obtain evidence that Grace Mulligan was not a Bunuba #2 claim group member. Instead, it appears from her reasons that the delegate was persuaded by the responsive submissions of the Warlangurru #2 claim applicants and reached a level of satisfaction under s 190C(3) from the absence, rather than the presence, of material.
52 It is submitted it was legally unreasonable for the Registrar to do this.
Did the delegate misconstrue the bunuba #2 claim group description?
53 The applicant raises what it describes in its written submissions as a “Third Ground” of judicial review – even though only two grounds are actually stated in the originating application, as set out above. No issue is taken by the Warlangurru #2 claim group in this regard.
54 This third ground is said to be the misconstruction of the Bunuba #2 claim group description set out at [15] above.
55 The applicant says the Registrar appears to have placed most weight on the assertion by the Warlangurru #2 claim group that Ms Mulligan does not identify as a Bunuba person and that this is an essential criteria for members of the Bunuba #2 claim group in order to be satisfied for the purposes of s 190C(3).
56 The applicant says the Registrar misconstrued the description in doing so, and the decision that the condition in s 190C(3) has been met lacks an “evident and intelligible justification” – a reference to the test mentioned by the plurality in the Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] as to what constitutes legal unreasonableness.
57 The applicant says the three criteria of the Bunuba #2 claim group are independent and not cumulative. It makes no sense that to be a Bunuba #2 claim group member you have to be a descendant of an apical ancestor and be adopted by members of the application group and be an Aboriginal person that self-identifies and is recognised by members of the claim group as Bunuba.
Consideration of all three questions
58 As explained by counsel for the applicant, the three grounds identified are all intended to support the first stated ground of the judicial review application, namely, that the exercise of the registration power on behalf of the Registrar was legally unreasonable.
59 I am not at all satisfied that it was legally unreasonable for the delegate to proceed in the way that she did. I do not consider it was an unreasonable exercise of power, in a relevant sense, for her to make a decision on the basis of the information before her. Even more complete information may arguably have been available, including by requesting an anthropological report held by the Kimberley Land Council concerning the Bunuba People.
60 Even if such information had been requested, it is by no means apparent on the material before me that it would necessarily have resolved the question of Grace Mulligan’s membership of the Bunuba #2 claim group. If anything it might simply have made the resolution of that question more perplexing, a task that obviously does not fall to the Registrar finally to decide, as Doepel establishes.
61 In my view, there was sufficient information available to the Registrar, through the delegate, to make the registration test decision.
62 It follows that I also do not think it can be said that there was no evidence to support the making of the decision.
63 The significant question which arises, in the context of the first ground of review, is whether, having regard to the description of the Bunuba #2 claim group relied on by the delegate, the assertion before the delegate that Grace Mulligan did not identify as a Bunuba person was material to the application of s 190C(3) in this case. This is the issue raised by the “third ground” pressed at the hearing.
64 Senior counsel who appeared for the Warlangurru #2 respondents did not dispute that it was open to conclude that Grace Mulligan fell within the Bunuba claim group description, but only if one applied the descent category set out in para (a) above. He submitted, however, that the claim group membership description must be construed in a case such as the present on the following basis. If a person falls within the descent category in para (a), they must also satisfy para (c). That is, they must also identify as an “Aboriginal person” who identifies as a Bunuba person and is recognised by the Bunuba group as a member of that community. Senior counsel thus argued that because the Registrar was reasonably informed on the information before her that Grace Mulligan did not identify as a Bunuba person, she did not fall within the membership of the Bunuba claim group because para (c) was not satisfied. That, he said, was the essence of the finding ultimately made by the delegate, which was open to her, and so the decision she made was not legally unreasonable.
65 There is no real doubt, on the available information, that Grace Mulligan is descended from one of the ancestors listed in para (a) of the Bunuba claim group description. Not only is that claim group description used in the presently undetermined Bunuba #2 claim, but it is exactly the same description of the persons who hold native title in relation to the determined area, pursuant to a consent determination that I made on 22 December 2015 in Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 1481.
66 The PowerPoint presentation referred to by the delegate in her reasons related to a special cultural meeting between Warlangurru and Bunuba representatives, apparently convened by the Kimberley Land Council at Fitzroy Crossing on 26 November 2015. The stated purpose of the meeting in that presentation was the provision of information about the Warlangurru and Bunuba #2 applications to assist discussion about the area south of the Great Northern Highway near Calwynyadah. The relevant claim areas were identified. The Kimberley Land Council expressed an opinion about the southern boundary of the Bunuba #2 application reflecting the extent of Bunuba traditional country at the time of effective sovereignty. It referred to research and sources relied upon informing that opinion.
67 Under the heading of “Other Relevant Information”, the presentation stated:
• Gracie Mulligan is identified on the Bunuba Connection Report Genealogies (Genealogy 9) as a member of the Muway Danggu, through her father Mick Michael. The same genealogies have been used to describe the claimant group for the Bunuba No. 2 claim.
• This means that Gracie Mulligan, and her descendants, are members of the Bunuba Claim and are also eligible to join to the Bunuba PBC-Bunuba Dawangarri Aboriginal Corporation.
• Muway Danggu is located around Fitzroy Crossing. The Muway for the Calwynyardah area is Mawanban.
• Rosie Mulligan is not identified as a Bunuba person on the Bunuba genealogies.
68 The presentation then dealt with “Possible ways forward”, one being a Memorandum of Understanding between the two groups and another being the Mulligan family applying to Bunuba Dawangarri Aboriginal Corporation to become members.
69 This information was plainly disseminated at the meeting, which was attended by a good number of people, including Rosie Mulligan and Gracie Mulligan.
70 The anthropological report of Dr de Rijke for the Warlangurru #2 claim group was also provided to the delegate as mentioned above. Having referred to various area reports, Dr de Rijke noted at [11] that the solicitors for the Warlangurru applicant made requests to the Kimberley Land Council to obtain copies of the anthropological reports relevant to the determined neighbouring Nyinkina and Mangala native title claim, the Bunuba claim and the Yi-Martuwarra Nguarra claim in the west, which he considered likely to contain information relevant to the current inquiry – but they were “not forthcoming”.
71 In his report, for example at [37], Dr de Rijke identified traditional information that he had obtained from Grace Mulligan on behalf of the Warlangurru applicant.
72 At [42] of his report, Dr de Rijke noted that Rosie Mulligan asserted rights to Calwynyardah, at least partly on the basis of her father’s brother burial there.
73 In relation to “the Bunuba overlap”, Dr de Rijke noted, at [77] of his report, that debates about the appropriate southern boundaries for Bunuba have been ongoing for many years. He stated that the Warlangurru claimants assert that the Warlangurru #2 application area is heavy Nyinkina country.
74 It was in this context, in its letter responding to the invitation of the delegate, that the State Solicitor’s Office for the State drew attention to the slide in the presentation headed “Other Relevant Information”, which noted that Gracie Mulligan was identified as a member of the Bunuba #2 native title group and in the anthropologist’s report was identified as a senior Warlangurru claimant with whom Dr de Rijke had worked. Noting that, if Gracie Mulligan and Grace Mulligan were one and the same person, then it appeared the condition set out in s 190C(3) was not met as Grace Mulligan was a member of the native title claim group for both applications.
75 It was as to that brief submission that Corser and Corser, the solicitors for the Warlangurru #2 applicant made the further submissions summarised above and set out in the subsequent reasons of the delegate. As noted above, the “crucial” submission was that Grace Mulligan did not self-identify as a Bunuba person.
76 There does not appear to be any real dispute, and I find for present purposes, that Grace Mulligan through her father is, according to the para (a) description of the Bunuba #2 claim group, within that claim group by descent. Plainly, however, she does not identify as a Bunuba person. She was one of the persons comprising the applicant on the Warlangurru #1 application. She has been the source of much information for Dr de Rijke’s report as a senior Warlangurru group member.
77 What we have here is a narrow question of a person who has technically become a member of one prior registered claim group through descent, on her father’s side, being also a claimant by important asserted traditional rights and interests in what she considers Warlangurru country, including in the overlap area, through her mother’s side, in the second, in time, application group.
78 It seems to me that the delegate of the Registrar fully appreciated those competing aspects of Grace Mulligan’s traditional interests in considering the application of the registration test.
79 At this point, it can readily be appreciated that s 190C(3) introduces something of a conundrum in a case such as the present. Its strict requirement is that a later application over the same area covered by an earlier application cannot be entered on the Register where any person included in the claim group for the later application is a member of the claim group on the earlier registered application. Section 190C(3) expressly says the Registrar must be satisfied “that no person” included in the claim group for the current application is a member of the claim group for any previous registered application.
80 As noted, the Warlangurru #2 applicant now says that because Grace Mulligan does not identify as Bunuba she should not be considered caught by that Bunuba #2 claim group description. In particular, the argument is put that para (c) of the Bunuba claim group description is an additional requirement for membership and that because she does not self-identify as Bunuba, she is not within that claim group.
81 This conundrum is not easily resolved. It is perhaps a classic example of how current statutory law relating to native title application registration does not always easily engage with traditional law and custom. As I have indicated above, the current problem only exists because of the overlap. There is no impediment to Gracie Mulligan being a member of the Warlangurru #1 claim as well as, at the same time, being a member of the Bunuba #1 application. That is because, in traditional terms, she claims along different path lines – through her father on the Bunuba claim and through her mother on the Warlangurru claim.
82 It does not, on one view of things, seem reasonable – and certainly in traditional terms one would not think that it is – for a person to be required to give up their traditional claims either on their father’s or their mother’s side, simply in order to meet the registration requirements of the NTA set out in s 190C(3).
83 However, unless the construction can be taken that self-identification is a pre-requisite to membership of the Bunuba claim group as a final, additional requirement under para (c), then the statutorily induced conundrum seems to me to exist.
84 At first blush, it does seem to me that para (c) of the Bunuba claim group description is meant to ensure that not only are the descendants of the ancestors listed in para (a) and other persons adopted into the Bunuba group to be part of the claim group as provided for in para (b), but also that other “Aboriginal persons” who identify as Bunuba and who are recognised by other members of the Bunuba native title claim group as Bunuba under traditional law and custom should be included.
85 Paragraph (c) would therefore appear to include a range of persons who traditionally are to be considered Bunuba, even if they cannot show descent from one of the named apical ancestors or adoption into the group.
86 In this case, it seems that Grace Mulligan does not identify as Bunuba at all, and therefore she would not be able to claim membership of the group on the basis of falling into the claim group under the para (c) category, should it be considered a separate one.
87 While senior counsel for the Warlangurru #2 applicant submits that the para (c) criterion is additional, for example, to the descent category of membership, I do not think that this is so as a matter of construction of the formula used by the group. As a matter of grammar, the use of the expression, “Aboriginal persons who” at the commencement of para (c) does not suggest that, grammatically, self-identification and recognition by the Bunuba is a further requirement for membership by descent or adoption. Rather, it seems to me it is clear that para (c) provides an additional category of membership. The para (b) adoption category is followed by –
; and
Aboriginal persons who: …
88 If the words “Aboriginal persons who:” were not in that paragraph, then it could read as a requirement to be met for membership of the Bunuba claim group that qualified membership under paras (a) and (b). But the membership formula does not read in that way.
89 I find myself, therefore, arriving at the conclusion that at material times when the delegate made the decision on behalf of the Registrar, the fact that Grace Mulligan did not self-identify as Bunuba was irrelevant to the question of membership of the Bunuba people. It seem from the material before the delegate that Grace Mulligan appeared to be a descendant of one of the Bunuba named ancestors in para (a), through her father, Mick Michael, and the delegate fully appreciated and accepted that fact.
90 In these circumstances, I consider it is open to argue, as the applicant does on judicial review, that the Registrar’s delegate misconstrued the Bunuba membership criteria and, in doing so, she made a decision that was not open to her and was therefore legally unreasonable on the basis that no reasonable decision-maker could have made it.
Conclusion and orders
91 For these reasons, the registration decision should be set aside and the relief sought should be granted.
92 I should finally say that the difficulties I have referred to above, from a traditional point of view, with a person being able to make traditional claims on both her father’s side and her mother’s side, may well be capable of resolution, by one means or another by the parties, their advisers and the assistance of the native title representative body, the Kimberley Land Council.
93 I would then make the following orders:
(1) The decision of the fourth respondent to accept the Warlangurru #2 application for registration on 2 December 2016 be set aside.
(2) The fourth respondent amend the Register of Native Title Claims so as to remove the entry of the Warlangurru #2 application.
94 I will hear from the parties on the question of costs.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. |
WAD 10 of 2017 | |
NATIVE TITLE REGISTRAR |
