FEDERAL COURT OF AUSTRALIA

Bright v Northern Land Council [2018] FCA 752

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

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

REASONS FOR JUDGMENT

WHITE J:

1    On 30 April 2015, the Northern Territory Government lodged with the Native Title Registrar (the Registrar) an application pursuant to s 24CG(1) of the Native Title Act 1993 (Cth) (the NT Act) for the registration on the Register of Indigenous Land Use Agreements (the Register) of an indigenous land use agreement over all the land and waters within the Town of Batchelor in the Northern Territory (the Batchelor ILUA). This is an area of about 10 square kilometres.

2    The notification period fixed by the Registrar under s 24CH of the NT Act expired on 10 September 2015. On the last day of the notification period, the Registrar received 19 formal objections under s 24CI to the registration of the Batchelor ILUA: one by Mr Virgil Warnir; and 18 by members of the Rak Mak Mak Marranunggu clan (the Mak Mak Objectors).

3    On 5 May 2016, a delegate of the Registrar (the Delegate) announced her decision under s 24CK of the NT Act to accept the Batchelor ILUA for registration. The Delegate’s reasons for her decision were made available later.

4    This judgment concerns an application made pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) by eight of the Mak Mak Objectors (the applicants) seeking the quashing of the Delegate’s decision. Mr Warnir has not made a corresponding application.

5    The respondents to the application are the Northern Land Council (the NLC), the Northern Territory of Australia, the four persons who comprised the Applicant in the application for determination of native title brought by the Warai and Kungarakany Groups in NTD 6057/2001 (known as Batchelor No 1) to whom I will refer as “the Batchelor No 1 Respondents”, and the Registrar. With the exception of the Registrar, who filed a submitting appearance, all opposed the grant of the relief sought by the applicants.

6    For the reasons which follow, I consider that the application should be dismissed.

The grounds of the application

7    The applicants made their application on three grounds:

1.    The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made (s 5(1)(e) and s 5(2)(a) and (b) and s 5(2)(g) [ADJR Act]);

2.    The decision involved an error of law (s 5(1)(f) [ADJR Act]);

3.    There was no evidence or other material to justify the making of the decision (s 5(1)(h) and s 5(3)(a) and (b) [ADJR Act]).

8    The applicants provided particulars of these grounds on 12 July 2016. They identified six separate errors of law said to have been made by the Delegate, five considerations said not to have been taken into account, and two considerations which were taken into account which were said to be irrelevant. The particulars did not, at least expressly, elaborate the allegation that there had been no evidence or other material to justify the Delegate’s decision. I will return to these matters later in these reasons.

9    The provisions in s 5 of the ADJR Act on which the applicants rely are:

5 Applications for review of decisions

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

…

(e)    that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)    that the decision involved an error of law, whether or not the error appears on the record of the decision;

…

(h)    that there was no evidence or other material to justify the making of the decision;

…

(2)    The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)    taking an irrelevant consideration into account in the exercise of a power;

(b)    failing to take a relevant consideration into account in the exercise of a power;

…

(g)    an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

…

(3)    The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a)    the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

(b)    the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

The statutory scheme for the registration of ILUAs

10    Division 3 of Pt 2 of the NT Act provides for the validity of certain “future acts”, that is, (relevantly) certain acts occurring after 1 January 1994 (when the NT Act came into operation) which affect native title. In particular, a future act will be valid if the parties to an indigenous land use agreement (an ILUA) consent to it and if details of the ILUA are registered on the Register (s 24AA(3)). Division 3 contemplates ILUAs of three kinds.

11    These proceedings are concerned with the kind referred to as “area agreements”, the requirements for which are set out in ss 24CB to 24CE of the NT Act. It was common ground that the requirements of these sections had been satisfied in the present case.

12    Section 24CG of the NT Act provides for applications to the Registrar for registration of ILUAs. Subsection (3) provides:

Certificate or statement to accompany application in certain cases

(3)    Also, the application must either:

(a)    have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area in performing their functions under paragraph 203BE(1)(b) in relation to the area; or

(b)    include a statement to the effect that the following requirements have been met:

(i)    all reasonable efforts have been made (including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified;

(ii)    all of the persons so identified have authorised the making of the agreement;

Note:    The word authorise is defined in subsection 251A(1).

together with a further statement briefly setting out the grounds on which the Registrar should be satisfied that the requirements are met.

In the present case, the application included a certificate under subpara(a).

13    Section 203BE(1)(b), to which s 24CG(3)(a) refers, provides for one of the certification functions of a representative body. It provides:

General

(1)    The certification functions of a representative body are:

…

(b)    to certify, in writing, applications for registration of indigenous land use agreements relating to areas of land or waters wholly or partly within the area for which the body is the representative body.

14    The exercise of the certification function under s 203BE(1)(b) is governed by subs (5) and (6), which provide:

Certification of applications for registration of indigenous land use agreements

(5)    A representative body must not certify under paragraph (1)(b) an application for registration of an indigenous land use agreement unless it is of the opinion that:

(a)    all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and

(b)    all the persons so identified have authorised the making of the agreement.

Note:    Section 251A deals with authority to make the agreement.

Statement to be included in certifications of applications for registration of indigenous land use agreements

(6)    A certification of an application for registration of an indigenous land use agreement by a representative body must:

(a)    include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (5)(a) and (b) have been met; and

(b)    briefly set out the body’s reasons for being of that opinion.

(Emphasis added)

15    Section 251A of the NT Act, to which reference is made in the note to subs (5), provides (relevantly):

(1)    For the purposes of this Act, persons holding native title in relation to land or waters in the area covered by an indigenous land use agreement authorise the making of the agreement if:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind—the persons authorise the making of the agreement in accordance with that process; or

(b)    where there is no such process—the persons authorise the making of the agreement in accordance with a process of decision-making agreed to and adopted, by the persons who hold or may hold the common or group rights comprising the native title, in relation to authorising the making of the agreement or of things of that kind.

16    The evident intention of ss 24CG(3)(a), 203BE(5) and 251A is that all reasonable efforts should be made to ensure that all persons who do or may hold native title in the land and waters to which the ILUA relates have been identified and that all the identified persons have authorised its making.

17    Section 24CH requires the Registrar to give notice of the lodgment of the ILUA for registration. It specifies the content of the notice and, amongst other things, requires that the notice specify a “notification day”, being a day by which the Registrar considers it reasonable to assume that the notice will have been received by, or have come to the attention of, the notified persons.

18    Section 24CI provides for objections to the registration of an ILUA certified by a representative body under s 24CG(3)(a). It provides (relevantly):

Making objections

(1)    If the application was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a)), any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied in relation to the certification.

(Emphasis added)

19    As can be seen, it is any person claiming to hold native title in relation to any of the land or waters covered by the agreement who make an objection pursuant to s 24CI(1). Such a person may make the objection on one ground only, namely, that “the requirements” of s 203BE(5)(a) and (b) had not been satisfied in relation to the certification. This does not mean that the objection is to be that the representative body had not formed the opinion to which s 203BE(5)(a) refers: Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491; (2015) 235 FCR 40 at [61]. Instead, an objection is to be made on the basis that:

(a)    all reasonable efforts have not been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and/or

(b)    all the persons so identified have not authorised the making of the agreement.

20    Section 24CJ obliges the Registrar, on the expiry of the notification period, to decide whether to register the ILUA on the Register. Section 24CK constrains the decision making by the Registrar in relation to the registration of ILUAs certified by representative bodies:

Registration only if conditions satisfied

(1)    If the application for registration of the agreement was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a)) and the conditions in this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement.

First condition

(2)    The first condition is that:

(a)    no objection under section 24CI against registration of the agreement was made within the notice period; or

(b)    one or more objections under section 24CI against registration of the agreement were made within the notice period, but they have all been withdrawn; or

(c)    one or more objections under section 24CI against registration of the agreement were made within the notice period, all of them have not been withdrawn, but none of the persons making them has satisfied the Registrar that the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied in relation to the certification of the application by any of the representative Aboriginal/Torres Strait Islander bodies concerned.

…

Matters to be taken into account

(4)    In deciding whether he or she is satisfied as mentioned in paragraph (2)(c), the Registrar must take into account any information given to the Registrar in relation to the matter by:

(a)    the persons making the objections mentioned in that paragraph; and

(b)    the representative Aboriginal/Torres Strait Islander bodies that certified the application;

and may, but need not, take into account any other matter or thing.

21    It is subs (2)(c) which is pertinent presently, namely, the condition that those objecting have not satisfied the Registrar that the requirements of s 203BE(5)(a) and (b) were not satisfied in relation to the certification of the application by any of the representative Aboriginal/Torres Strait Islander bodies concerned.

The application concerning the Batchelor ILUA

22    The application for registration of the Batchelor ILUA included a certification from the NLC under s 203BE(1)(b), as contemplated by s 24CG(3)(a). It is the relevant representative Aboriginal/Torres Strait Islander body. The NLC certified that it considered that the requirements of s 203BE(5)(a) and (b) of the NT Act had been satisfied and gave a short statement of its reasons for that opinion. The relevant portions of the NLC’s certification were as follows:

Statement of Opinion (s 203BE(6)(a))

(2)    The Northern Land Council is of the opinion that the requirements of paragraphs 203BE(5)(a) and (b) of the Native Title Act 1993 have been met, namely that:

(a)    all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the Agreement have been identified; and

(b)    all the persons so identified have authorised the making of the Agreement.

Reasons for Opinion (s 203BE(6)(b))

(3)    The Northern Land Council is of the opinion set out in paragraph (2) above for the following reasons:

(a)    the Northern Land Council has provided representation to the native title parties (as defined in the Agreement) for the purposes of the Native Title Act 1993 in relation to applications for determination of native title and in relation to matters relating to this Agreement, and

(b)    for such purposes (and other matters), the Northern Land Council has undertaken substantial anthropological, archival, historical, archaeological and field research.

(c)    this representation and anthropological research has included detailed consideration of the system of traditional laws and customs which operates in the Batchelor region, including the composition of the traditional land-owning groups, and the identification of the traditional decision making processes.

(d)    the Northern Land Council has conducted meetings with the Native Title Parties (as defined in the Agreement) regarding the Agreement.

The objections

23    The Delegate accepted, at [39]-[40], that Mr Warnir and the Mak Mak Objectors were persons “claiming to hold native title in relation to … the land or waters in the area covered by the agreement” for the purposes of s 24CI(1) and so were persons entitled to object to the registration of the Batchelor ILUA.

24    The objections of the 18 Mak Mak objectors were in template form. Each asserted that he or she was a member of the Rak Mak Mak Marranunggu clan and, as such, held native title in relation to all the land and waters in the area the subject of the Batchelor ILUA. Ten claimed to have been active participants in earlier native title proceedings (NTD18/2006 known as “Batchelor No 3”) and seven of those said that they had been one of the named applicants in those proceedings. The grounds of objection in each of the 18 notices of objection were identical:

[3]    I object to the registration of the area agreement on the grounds that the requirements of paragraphs 203BE(5)(a) and (b) of the [NT Act] were not satisfied in relation to the certification of the area agreement by the NLC, and more particularly, on the grounds that:

[3.1]    all reasonable efforts have not been made to ensure that all persons who hold or may hold native title in relation to land or waters in the Town of Batchelor have been identified, and more particularly, it appears that all reasonable efforts have not been made by the NLC to identify the Rak Mak Mak Marranunggu Clan members as being persons who hold or may hold native title in relation to land or waters in the Town of Batchelor; and/or

[3.2]    to the extent that the members of the Rak Mak Mak Marranunggu have been identified by the NLC, the persons so identified have not authorised the making of the agreement.

(Emphasis in original)

25    Mr Warnir objected to registration of the Bachelor ILUA on the basis that his claimant group holds native title rights and interests in relation to the Town of Batchelor and had not been notified of the proposed ILUA. That being so, he claimed that it had not been open to the NLC to certify that the s 203BE(5) matters had been satisfied. The Delegate referred to Mr Warnir’s claim group as the “FRBG/Litchfield Park and Environs Claimants”. FRBG is the acronym for “Finniss River Brinkin Group”.

The Delegate’s decision

26    The Delegate noted, at [34], that she was required by s 24CK(1) to register the agreement if the conditions in subs (2) and (3) were satisfied and bound not to register it if those conditions were not satisfied. She proceeded on the basis that it was for the objectors to satisfy her that the requirements of s 203BE(5)(a) and (b) had not been satisfied. This, the Delegate held, required the Mak Mak Objectors to satisfy her that “all reasonable efforts were not made to ensure that all persons who hold or may hold native title in relation to the agreement area were identified and/or that all the persons so identified had not authorised the making of the agreement”, at [47], [48] and [50]. The critical question accordingly was whether “all reasonable efforts” had been made to ensure the identification of those who held, or may hold, native title over the area of the Town of Batchelor.

27    The Delegate then addressed in some detail the submissions of the objectors, the NLC and the NTG. She reasoned as follows:

(a)    the question of whether the NLC had made “all reasonable efforts” was a question of fact to be determined by reference to the particular facts and circumstances of the application, at [112];

(c)    this required attention to the efforts which had in fact been made and whether they could be considered reasonable in the circumstances, at [113];

(d)    the objectors were required to satisfy her that the NLC’s efforts to ensure that all persons who hold or may hold native title in the area had been identified were wanting, such that the efforts and the views formed by the NLC on the completion of those efforts could not be regarded as reasonable, at [113];

(e)    when the claims of persons to native title rights and interests in an area had been subject to reasonable and detailed investigation by the representative body and found to be wanting, the representative body is not required subsequently to identify those persons as “persons who hold or may hold native title”, at [124].

(f)    it must be reasonable to conclude that persons claiming to hold native title over the subject area do, or may, hold that title, at [123];

(g)    the material demonstrated that the efforts made by the NLC to identify the persons who held or may hold native title in the area covered by the agreement had included the commissioning of anthropological research and reports, archival, historical, archaeological and field research, consideration of the evidence given in various legal proceedings relating to the Batchelor region, and consideration of the outcomes of those proceedings, at [114], [122]. The anthropological research, investigation and inquiry in legal proceedings had been carried out “over a relatively lengthy period of time”;

(h)    the NLC had considered alternative views, including the claims of the Rak Mak Mak Marranunggu, and had commissioned experts to report on them, at [122];

(i)    it was on the basis of its efforts that the NLC had formed the view that the Rak Mak Mak Marranunggu and others were not persons “who hold or may hold native title” in the agreement area, and instead that the only persons who held or may hold native title in relation to the agreement area were members of the Warai and Kungarakany Groups, at [122]; and

(j)    the objectors had not established that the NLC had not made all reasonable efforts as required by s 203BE(5)(a), at [124].

28    Accordingly, the Delegate held that the Mak Mak Objectors had not established that the requirements of s 203BE(5)(a) had not been satisfied, at [125]. She went on to find that the remaining requirements of s 24CK were satisfied.

Further background

29    In her consideration of the objections, the Delegate reviewed in some detail the history of claims by the Rak Mak Mak Marranunggu and others to be the traditional owners of, or to hold native title rights and interests in, the agreement area and its vicinity. It is of course trite that the present application under s 5 of the ADJR Act is not the occasion for a merits review of the Delegate’s decision. It is not the function of this Court to consider for itself whether the Delegate should have been satisfied of the matters to which s 203BE(5) refers. Nor is the application to be determined in the manner of an appeal under s 25 of the Federal Court of Australia Act 1976 (Cth). The Court is concerned only with the question of whether one or more of the pleaded grounds of review is established. Nevertheless, it is appropriate to outline the claims to which the Delegate referred as they form much of the background to the grounds which the applicants advanced in the present proceedings.

30    The first (presently relevant) claim was the Finniss River Land Claim (the FRLC) lodged by the NLC on 20 July 1979 under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALR Act). This claim did not include the Town of Batchelor but areas in its vicinity to its east, north and west. The FRLC was made by three groups acting in common: the Kungarakany, the Warai and the Marranunggu. During the progress of the claim, it emerged that two groups, the Kungarakany and Warai, on the one hand, and the Marranunggu, on the other, asserted traditional ownership of the land, each to the exclusion of the other. Accordingly, at the hearing of the FRLC, the Kungarakany/Warai claimants and the Marranunggu claimants had separate representation and each called anthropological evidence (in the Marranunggu’s case from Dr P Sutton). The hearing was substantial, occupying some 35 days in 1980 and 1981 with a considerable amount of evidence being adduced.

31    The Honourable J Toohey, the then Aboriginal Land Commissioner, delivered his report on the FRLC to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory on 22 May 1981. He reported that the Marranunggu claimants were the traditional owners of certain areas (Area 1 and part of Area 2) and that the Kungarakany and Warai claimants were the traditional owners of other areas (part of Area 3 and Areas 4 and 5). Area 3 is to the west and southwest of Batchelor and Area 4 is its north. At its southern edge, Area 4 abuts the Town of Batchelor. No part of Areas 1 and 2 was immediately adjacent to the Town of Batchelor which is located between Areas 3 and 4.

32    The second matter was the “Enquiry into Competing Claims to Traditional Ownership of the Wagait Land Trust Area” by the Wagait Committee which took place over some 32 hearing days in 1993 and 1994, and reported its findings in July 1995. The Wagait Committee was an ad hoc committee established by the NLC on 4 June 1992 to report to it on the competing claims to traditional ownership of the Wagait Reserve, two areas within which were known as Big Wagait and Little Wagait. Both are to the west of Batchelor. The Kungarakany claimants, the Warai claimants, the Marranunggu claimants and the Werat claimants participated in the hearing. The Committee comprised a number of senior Aboriginal people who were assisted by an anthropologist, Dr Ritchie (who also chaired proceedings) and Mr M Maurice QC (a former Aboriginal Land Commissioner). The Marranunggu adduced anthropological evidence from Dr D Rose, the Kungarakany from Dr N Williams and the Warai from Professor B Sansom. The Committee reported that the Marranunggu were the traditional owners of some areas in the Wagait Land Trust area, but these were well to the west of Batchelor and separated from it by intervening land and waters.

33    The third matter was the Batchelor No 1 proceedings under the NT Act (NTD6057/2001) which were filed on 21 September 2001. The claim concerned the land and waters within the Town of Batchelor and was registered on the Native Title Register on 26 October 2001. It was brought by the NLC on behalf of the Warai and Kungarakany Groups. Although the subject of various hearings, it was undetermined at the time of the Delegate’s decision and was discontinued in June 2016 (after the Delegate’s decision to register the Batchelor ILUA).

34    The next proceedings (NTD21/2005 and known as “Batchelor No 2”) were filed in this Court on 29 August 2005 by Mr Thomas Petherick and others. The claim was brought on behalf of three clans within the FRBG. It sought a determination of native title in respect of the same land and waters as were the subject of Batchelor No 1. The Delegate noted, at [60], the NLC’s submission that this claim had had “a long and litigious history involving numerous amendments to the claim, including to the composition of the native title claim group”. Some of that history is recorded in Hazelbane v Northern Territory [2008] FCA 291. By that decision, Mansfield J exercised the power under s 84C(1) of the NT Act to strike out, on a provisional basis, the Batchelor No 2 claim. Subsequently, Mansfield J refused an application by the applicants in Batchelor No 2 to amend the claim and struck out that claim with immediate effect on the basis that it had no reasonable prospect of succeeding: Hazelbane v Northern Territory [2014] FCA 886. During the course of the proceedings which culminated in that judgment, Mansfield J heard evidence from two anthropologists, Mr Adams and Mr Stead.

35    In 2008, some of the present applicants (and others) attempted to bring a s 61 claim on behalf of the Rak Mak Mak Marranunggu People in relation to the Town of Batchelor. The claim was not accepted for registration. Subsequently, the Rak Mak Mak Marranunggu People sought review in this Court of the National Native Title Tribunal decision refusing registration (NTD18/2006). These proceedings were known as “Batchelor No 3”. The Court ordered that the question of whether the Rak Mak Mak Marranunggu People represented a native title claim group which, subject to any issues of extinguishment, has or may have native title rights and interests in relation to the Town of Batchelor should be heard and determined separately from, and before, other issues on that application and in the Batchelor No 1 and Batchelor No 2 claims.

36    The trial of the separate question commenced with a five day hearing (from 23 to 27 May 2011). The Rak Mak Mak Marranunggu did not have representation at that time. Several of the present applicants gave evidence in that hearing, as did Professor Sansom, the anthropologist, who was called by the Northern Territory. The hearing was then adjourned at the request of Ms Deveraux (one of the Rak Mak Mak Marranunggu applicants who represented them in the hearing). Ms Deveraux sought the adjournment in order to seek legal representation and to adduce expert or other anthropological evidence to support the claim.

37    When the hearing resumed on 17 October 2011, the applicants in Batchelor No 3 (then represented by counsel) sought leave to discontinue the proceedings. In his decision delivered on 19 October 2011 (Hazelbane v Northern Territory [2011] FCA 1186), Mansfield J granted that leave but imposed strict conditions, including:

(a)    the notice of discontinuation be filed within seven days;

(b)    Margaret Dayi, Linda Ford and Kathleen Deveraux cease to be respondent parties to Batchelor No 1;

(a)    neither the Rak Mak Mak Marranunggu Native Title Claim Group nor any member of that group was permitted, without leave of the Court, to:

(i)    institute a further application under s 61 of the NT Act for the determination of native title over the claim area known as the Town of Batchelor; or

(ii)    apply under s 84(5) of the NT Act to become a party to Batchelor No 1 or Batchelor No 2 or either of them for the purpose of asserting any native title right or interest in the claim area the subject of those applications which was inconsistent with the claims of the applicants in those actions.

38    In relation to the condition that any further proceedings by the Marranunggu in respect of the Town of Batchelor should be subject to a grant of leave, Mansfield J said, at [15]:

It was anticipated that such leave would not be given by the Court except in a substantially restricted way. In practical terms, as counsel for the [Marranunggu] accepted, such leave would not be given unless the [Marranunggu] was able to present proposed cogent supporting anthropological evidence in support of the claim.

It seems to be implicit in this statement that Mansfield J did not consider that the Rak Mak Mak Marranunggu had, to that date, provided “cogent supporting anthropological evidence”.

39    Mansfield J imposed these conditions having regard to the history of the Rak Mak Mak Marranunggu’s claim, the substantial resources expended to that date in relation to resolution of the claim, the possibility that the Marranunggu may decide at some stage in the future to bring a further application, and the prospect, if they did so, of prejudice to the orderly resolution of the Batchelor No 1 and Batchelor No 2 claims. His Honour noted, at [3], that while the applicants in Batchelor No 1 and Batchelor No 2 and the Northern Territory Government considered that there was a reasonable prospect that the respective claims could be resolved by agreement, the Rak Mak Mak Marranunggu had declined to participate in discussions, thereby precluding the possibility of a negotiated agreement. It had been that circumstance which had led the Court to identify the separate question for preliminary determination. It can also be inferred that Mansfield J was concerned that, in circumstances in which the Rak Mak Mak Marranunggu had been given, and were abandoning, the opportunity to have their claims determined after the Court and the other parties had invested considerable resources, they should be held to their abandonment unless they first produced “cogent supporting anthropological evidence”.

40    The Rak Mak Mak Marranunggu did discontinue the Batchelor No 3 proceedings and so can be taken to have accepted the conditions imposed by Mansfield J.

41    Since October 2011, there has been no application by the Rak Mak Mak Marranunggu Native Title Claim Group or any of its members for a determination of native title in respect of the area of the Town of Batchelor, nor did that claim group make any application to become a party to the Batchelor No 1 claim. As already noted, the Batchelor No 2 claim has been dismissed.

42    Despite their abandonment of the claim in Batchelor No 3, their acceptance of the strict conditions imposed by Mansfield J for the grant of leave to discontinue the proceedings, and the absence of any subsequent application, the applicants claim presently to be persons who may hold native title in the Town of Batchelor. They contend that there is a “controversy” as to their origins, with one theory being that they have “occupied” land north of the Daly River since time immemorial. Evidence from a linguist is, the applicants contend, consistent with that theory. As Batchelor is located north of the Daly River, they submit that the “controversy” extends to it.

43    The applicants contend that the NLC had not made all reasonable efforts to resolve this “controversy” and accordingly, had not made all reasonable efforts to identify those who hold or may hold native title over the Town of Batchelor. In particular, they submit that it had not been open to the NLC to conclude that they need not be identified as persons who may hold native title.

44    Against this rather lengthy background, I turn to the grounds advanced by the applicants.

Errors of law

45    Many of the grounds of the application for judicial review overlapped. Nevertheless, I consider it appropriate to address each individually.

46    As noted earlier, the applicants alleged six separate errors of law by the Delegate. However, during the course of the oral submissions, they abandoned the substance of one of these allegations, and did not advance any submissions in support of several others. As will be seen, I have regarded these as having been implicitly abandoned.

The burden of proof

47    The first alleged error of law related to the burden of proof. When addressing the nature of her task, the Delegate said, at [50]:

Therefore adopting this interpretation, I understand the test at s 24CK(2)(c) directs the Registrar specifically to paragraphs 203BE(5)(a) and (b) and their substantive provisions. The objectors are therefore required to satisfy me that the requirements of paragraphs 203BE(5)(a) and (b) were, in fact, not met. Specifically, they are required to satisfy me that all reasonable efforts were not made to ensure that all persons who hold or may hold native title in relation to the agreement area have been identified; and/or that all the persons so identified have not authorised the making of the agreement.

48    The applicants contended that this understanding of the onus of proof was erroneous, for three distinct reasons:

(a)    section 24CK(2)(c) does not impose a burden of proof in the form adopted by the Delegate;

(b)    while particular enactments may expressly impose a burden of proof on a party, generally there is no onus of proof in administrative enquiries and decision making. The applicants referred in this respect to Bushell v Repatriation Commission (1992) 175 CLR 408; McDonald v Director-General of Social Security (1984) 1 FCR 354; SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 and Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, (2014) 226 FCR 555; and

(c)    even if s 24CK(2)(c) is construed as imposing an burden of proof, it is a burden to prove a negative proposition, with the consequence that, once an objector has adduced “sufficient evidence” from which the negative proposition may be inferred, the evidential or tactical burden shifts to the other party to negate the negative proposition.

49    It is plain that the third element of s 24CK(2)(c) does require objectors to discharge an onus. The relevant limb of the first s 24CK condition will exist only if none of the objectors “has satisfied” the Registrar that the requirements of s 203BE(5)(a) and (b) were not satisfied. That is to say, failure by objectors to satisfy the Registrar of those matters is an essential integer in this element of the first condition.

50    Two further considerations support the conclusion that s 24CK(2)(c) imposes a burden of proof on objectors. The first is the contrast between subpara (2)(c) and subparas (2)(a) and (b). Neither of the latter require a party to satisfy the Registrar of a matter. It is for the Registrar to consider whether the circumstances specified in either subparagraph exist in a given case. The different structure used in subpara (c) is telling.

51    The second is the contrast between the terminology used in s 24CK(2)(c) and in s 24CL(1), which concerns the registration of area agreements which have not been certified by a representative body. In the latter case, the Registrar must register the ILUA if the specified conditions have been satisfied, and must not register it if they have not. No onus arises under s 24CL(1). The difference between the two provisions may be taken to reflect the significance which the legislation attaches to the certification by a representative body. Such certifications are provided in the discharge of the important role of representative bodies in the implementation of the NT Act: see MT (deceased) v State of Western Australia [2013] FCA 1302 at [35] and [57]. That being so, it is readily explicable that, when a representative body has provided a certification, the legislation imposes an onus on an objector to establish that, despite the certification, s 203BE(5)(a) and (b) were not satisfied.

52    The decisions in Bushell, McDonald and Sullivan do not assist the applicants. The statutory contexts considered in those cases are different from the present. In Bushell, s 120 of the Veterans’ Entitlements Act 1986 (Cth) provided expressly that its provisions were not to be taken as imposing “any onus of proving any matter” on either the claimant or the Commonwealth. McDonald and Sullivan concerned the function of the Administrative Appeals Tribunal. It is well established that the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) does not impose an onus of proof on applicants, although such an onus may be found in the statute giving rise to the entitlement in issue in the AAT proceedings. Decisions in the context of the AAT Act cannot control the meaning of s 24CK(2)(c) which contemplates in express terms that objectors do have an onus.

53    Apart from their submissions concerning the evidential or tactical burden of proof, which will be addressed separately, the applicants did not identify any respect in which the Delegate’s articulation in [50] of the burden of proof on the Mak Mak Objectors departed from that imposed by s 24CK(2)(c).

54    In relation to the content of the burden proof, the applicants submitted that s 24CK(2)(c) did not require objectors to establish that the representative body had not made all reasonable efforts to identify all persons who held or may hold native title in relation to the area of the ILUA or that persons so identified had not authorised the making of the agreement. Instead, s 24CK(2)(c) requires objectors only to adduce evidence that the representative body may possibly have failed to make the requisite reasonable efforts. When objectors produce or point to material showing such a possibility, the burden of proving that all reasonable efforts had been made shifts, so the applicants submitted, to the representative body. On this basis, the applicants submitted that the Delegate’s statement in [50] of the onus on the Mak Mak Objectors had been in error.

55    In support of this contention, the applicants sought to invoke a principle drawn from the law of evidence in curial proceedings. That invocation seemed to involve some inconsistency with the applicants’ submission that there was no burden of proof on a party in administrative proceedings, and so must be understood as having been advanced in the alternative.

56    The common law principle on which the applicants rely is stated in Cross on Evidence, 11th Edition at [7165]:

Where one party bears the burden of proving a negative but the other has greater means to produce evidence to contradict the negative proposition, then provided the party bearing the burden of proof has tendered some evidence from which the negative proposition may be inferred, the other party carries a tactical burden to advance in evidence any matters with which (if relevant) the first party would have to deal in the discharge of its legal burden of proof.

57    This principle was applied in Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929; (2008) 181 FCR 300 in relation to an application under s 13 of the NT Act for a declaration that native title did not exist in a specified area. Bennett J held:

[49]    The onus of proof is on the Land Council, which must satisfy the legal burden on the balance of probabilities, but there is no reason to conclude that if the Land Council establishes a prima facie case of no native title, there is no onus on Worimi to adduce any evidence in support of his assertion of native title. …

[50]    The evidentiary burden on a party in Worimi’s position in circumstances where the moving party must prove a negative proposition has been described in Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 at 565 as similar to ‘the evidential burden placed upon an accused in a criminal trial who seeks to raise the issue of self-defence which the Crown must disprove’.

…

[52]    If the elements of native title are established by a non-applicant claimant, it can prevent a determination that native title does not exist, although it cannot secure a positive determination of native title under s 225 of the Act … However, Worimi’s evidence may be sufficient to raise a doubt as to the non-existence of native title without amounting to proof necessary for a claimant application or for a finding that native title exists.

(Emphasis in the original and citations omitted)

58    The principle was also applied by Katzmann J in Lee v Napier [2013] FCA 236; (2013) 216 FCR 562 at [74]. Her Honour also referred to the decision of Hunt J in Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561, which had in turn referred to Purkess v Crittenden (1965) 114 CLR 164 at 167-8, 171.

59    The issue in this case is one of statutory construction. That being so, the Court should have regard to the text, context and purpose of s 24CK(2): CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41, (2009) 239 CLR 27 at [47]; SZATL v Minister for Immigration and Border Protection [2017] HCA 34, (2017) 347 ALR 304 at [14], [37].

60    On its face, s 24CK(2)(c) does three things in relation to the Registrar’s satisfaction of the requirements of s 203BE(5)(a) and (b): it introduces a burden of proof; it identifies the person who has that burden; and it identifies what it is which must be proved. Its effect is that objectors have the onus of satisfying the Registrar that he or she should not accept as accurate the certification by the representative body.

61    The specification of the onus on objectors in s 24CK(2)(c) is not qualified by expressions indicating that the satisfaction to be established is “prima facie” or plausible, or that it be “possible” that the requirements of s 203BE(5)(a) and (b) were not satisfied. Nor does s 24CK make provision for the position to be followed if the objectors adduce evidence only that it is “possible” or “plausible” that the s 203BE(5) requirements had not been satisfied. The nature of the statutory scheme is such that it is to be expected that provision for contingencies of this kind would have been made had that been the statutory intention.

62    It is convenient to note again some aspects of the context. The NT Act does not impose any obligation on a representative body to adduce evidence supporting the accuracy of its certification under s 24CG(3)(a), even when an objection under s 24CI to registration of an ILUA has been lodged. The representative body could leave it to others to produce material to the Registrar concerning the 203BE(5) matters. Further, absent an objection under s 24CI, the Registrar is not required to consider whether the representative body’s certification of the matters to which s 203BE(5)(a) and (b) was appropriate. Indeed, when there is no objection, s 24CK(1) has the effect that, not only is it not necessary for the Registrar to consider the s 203BE(5)(a) and (b) matters, he or she should not do so. Put slightly differently, the Registrar’s obligation to consider whether the requirements of s 203BE(5)(a) and (b) have been satisfied arises only when an objection on the limited grounds stated in s 24CI(1) has been made, and that objection has not been withdrawn.

63    It is pertinent that the condition contained in s 24CK(2)(c) is not expressed as “the representative body has not satisfied the Registrar that the requirements of para 203BE(5)(a) and (b) were satisfied in relation to the certification”. Yet the applicants’ submission, if accepted, would have the effect that, subject to proof of the possibility that all reasonable efforts had not been made, s 24CK(2)(c) would operate in this very different manner.

64    Contrary to the applicants’ submissions, s 24CK(4) does not provide any support for their contentions. It contemplates implicitly that both objectors and the representative body may wish to provide information to the Registrar and requires the Registrar to take into account such information as they do provide. Section 24CK(4) then provides that the Registrar is not confined to consideration of the information provided by the objectors and the representative body but may take into account (without being required to do so) any other matter or thing. That means that the materials and considerations to which the Registrar may have regard may be of diverse kinds and may come from diverse sources. In that circumstance, it is not possible to infer from s 24CK(4) that, because the representative body may be one source, the legislation intends that it should have an onus of proof.

65    The applicants’ submissions as to the construction of s 24CK(2)(c) had at their base the premise that objectors are required to establish a negative proposition. That may be so at the level of characterisation but is less obviously so with respect to proof of the matters on which the characterisation depends. Depending on the circumstances of a given case, that characterisation may require objectors to establish matters of a more positive kind, for example, that there were things which could have been done to identify those who hold or may hold native title in the area in question, but which were not; or that it had been unreasonable for the representative body or others to decline to undertake some enquiries; or that persons identified as holding, or who may hold, native title in the area in question, had not authorised the making of the ILUA. Proof of matters of these kinds would involve both positive and negative aspects. That being so, it does not seem appropriate to construe s 24CK(2)(c) on the basis that the burden resting on objectors is always that of establishing matters of a negative character.

66    It is also appropriate to keep in mind that, contrary to the submission of the applicants, the NT Act does not require that the representative body itself have undertaken the reasonable efforts contemplated by s 203BE(5)(a). I will turn later to this feature of the scheme for registration of ILUAs. For the present, it is sufficient to note that the representative body may rely on the efforts made by others about which it has knowledge (for example, the evidence and the results of proceedings in this Court in which it was not a participant) or on the accuracy of information obtained by others (for example, an expert report) on which, in the conscientious discharge of its certification function, it considers it appropriate to rely. That being so, it would in inappropriate to construe s 24CK(2)(c) on the basis that the information bearing on the accuracy of the certification will necessarily be peculiarly within the knowledge of the representative body.

67    The applicants sought to support their submissions by reference to the analogy with the law relating to the onus of proving self-defence in criminal proceedings to which Bennett J had referred in Worimi. In my opinion, use of the analogy in relation to s 24CK(2)(c) would be misplaced. The substantive and evidential law applicable in criminal proceedings is very different from that applying to the making of administrative decisions. The presumption of innocence and the rules relating to the allocation and standard of the onus of proof are, by themselves, significant points of difference. Amongst other things, it is well established in criminal proceedings that the burden of proof remains on the prosecution throughout. In contrast, a representative body certifying an ILUA does not have any underlying onus of proof at all. That being so, the nature of the onus of proof imposed by s 24CK(2)(c) is not informed by analogies with criminal proceedings.

68    The first error of law asserted by the applicants had a dual aspect. In addition to alleging an error of law in the identification of the onus of proof, the applicants alleged that the Delegate had erred in law in “limiting the nature of the s 24CK(2)(c) task as set out at paragraphs [46]-[50] and [111]-[116]”.

69    Paragraphs [46]-[50] contained the Delegate’s reasoning with respect to the onus of proof, and culminated in [50] which has been considered above.

70    The applicants did not develop any submission with respect to [111]-[116] of the Delegate’s reasons. They did not even refer to these paragraphs in their written outlines of primary submissions and reply. Nor did they refer to these paragraphs in their oral submissions. Accordingly, the applicants should be taken to have implicitly abandoned this particular.

71    In all these circumstances, the Delegate did not make the error of law with respect to the burden of proof for which the applicants contend.

Inconsistency in approach

72    The second error of law by the Delegate alleged by the applicants is that she failed to apply consistently “the s 24CK(2)(c) task as so defined at [121]”.

73    In [121], the Delegate said:

I note that I have also been asked to draw inferences about various matters, such as why certain material has not been made available during Court proceedings or why certain evidence such as that through cross-examination was not forthcoming. I do not consider the task of the Registrar to speculate as to these matters and I note that some rational explanations have been provided for some of these. As mentioned above, the task here is to see whether “all reasonable efforts have been made” and this requires consideration of whether the available material demonstrates that the views of the representative body were shaped as a consequence of reasonable efforts.

(Footnote omitted)

74    Subject to the matters to be mentioned next, the applicants did not develop, whether in their written outlines or in the oral submissions, any argument concerning this alleged error. Neither of the applicants’ written outlines even referred to [121].

75    The applicants did make two references to [121] in the oral submissions, one oblique and one express. In the first, the applicants submitted, with apparent reference, in relation to [121]:

What we would say is that the Registrar has reached [her] conclusion by simply adopting one version, one potential conclusion rather than in any broad sense …

As I understand it, this was a submission that the Delegate had reached her decision on the basis of one view of the origins of the Rak Mak Mak Marranunggu, and without considering the evidence bearing on these origins more generally. I will refer shortly to the applicants’ submissions concerning competing theories as to their origins.

76    A number of things may be noted about this submission. First, it was not on its face a development of the particular error of law alleged. Secondly, it is not clear that the Delegate did determine the objections by “adopting one version” without considering the matter more broadly. Thirdly, it was for the Delegate to consider, on the material before her, whether the Mak Mak Objectors had satisfied her that all the requisite reasonable efforts had not been made. It was for her to undertake the evaluation of the material. The submission seems to constitute a critique of the Delegate’s evaluation of the material with the suggestion that, with a different evaluation, a different conclusion was appropriate. A submission of that kind invites the Court to engage in a merits review of the Delegate’s decision which, as noted, is not the Court’s function on an application under s 5 of the ADJR Act.

77    The applicants’ second submission concerning [121] of the Delegate’s reasons came in their reply. They then submitted that the Delegate’s statement of the task in [117] of the Reasons was inconsistent with the statement of the task set out in the second part of [121] set out above. In [117], in the passage on which the applicants relied, the Delegate said:

… I understand that at this stage, there is no, or insufficient, cogent supporting anthropological evidence to support the claims of the Mak Mak Marranunggu over the Town of Batchelor. This is evidenced by the discontinuance of their claim and Mansfield J’s comment that it was anticipated that they would need to “present proposed cogent supporting anthropological evidence in support of the claim” before leave would be given to continue their claim or become respondents to a claim over the Town of Batchelor, namely the Batchelor No 1 and Batchelor No 2 claims – see Hazelbane [2011] at [15]. I note that information has been provided in relation to the possible movement/migration of the Mak Mak Marranunggu, but I do not consider the task to be to examine and decide which views I consider to be more accurate or robust.

78    As I observed during the hearing, the inconsistency of approach for which the applicants contended is not immediately obvious. At the foot of [117], the Delegate said, in my view correctly, that it was not for her to determine which of the competing theories about the origins of the Rak Mak Mak Marranunggu was accurate. In [121], she identified the task as being to consider whether all reasonable efforts had been made as required by s 203BE(5)(a) and (b). There is no apparent inconsistency in these statements.

79    Counsel did not identify the asserted inconsistency, even when asked to do so. Instead, he moved to a different submission, namely, that a statement made by the Delegate in [122] was not supported by the evidence. That statement was:

The material demonstrates that the NLC have manifestly investigated the persons who hold or may hold native title in the area covered by the agreement through the commissioning of anthropological, archival, historical, archaeological and field research and other evidence such as from legal proceedings and has formed the view that the Mak Mak Marranunggu and the FRBG/Litchfield Park and Environs Claimants are not “persons who hold or may hold native title” in the agreement area.

80    It is not for the Court to speculate as to the nature or existence of an inconsistency said to constitute an error of law. Nor is it necessary for the respondents to do so. In the circumstance that the applicants did not identify the inconsistency which they alleged in the particulars, it is unsurprising that the respondents did not address submissions to the allegation. For these reasons, this ground of the application for review must be rejected.

81    I will return later to the submission that there was no evidence to support the Delegate’s conclusion regarding the investigations undertaken by the NLC.

An alleged error in a finding of irrelevancy

82    The applicants alleged that the Delegate had erred in “determining as irrelevant any enquiry as to whether or not the objector can establish prima facie that they may hold native title in relation to the land, at paragraphs 111-116”.

83    This alleged error can be disposed of quite shortly. The Delegate’s reasons do not contain, in [111]-[116], or elsewhere, the determination attributed to her. I add that the applicants did not develop any submissions at all in support of this alleged error and, as noted, did not even refer in any of their submissions to [111]-[116]. The allegation should be taken to have been implicitly abandoned, and fails in any event.

The finding of insufficient cogent supporting anthropological evidence

84    The fourth error of law alleged by the applicants was that the Delegate had erred in determining that “there is no, or insufficient cogent supporting anthropological evidence to support the claims of the Mak Mak Marranunggu over the Town of Batchelor”, at [117].

85    The passage in question has been set earlier. The applicants’ characterisation of the Delegate’s statement as a determination does not seem appropriate, as it was only a statement of the Delegate’s understanding of the position. In doing so, the Delegate appeared to be doing no more than indicating that the position did not appear to have changed since Batchelor No 3 was discontinued, namely, that the Rak Mak Mak Marranunggu had not provided proposed “cogent supporting anthropological evidence in support of [their] claim” of the kind which Mansfield J had indicated would be required for them to have a grant of leave to institute a further application under s 61 of the NT or to apply to become a party to the proceedings of others concerning the Town of Batchelor. However, that point can be put to one side.

86    At the hearing, the applicants did refer, briefly, to this alleged error of law but did not develop any submission concerning it. Nor, subject to the matters to be addressed next, did they identify the anthropological evidence before the Delegate which they contended should have been regarded as sufficiently cogent and supportive of their claims.

87    It is convenient to refer at this point to the three theories as to the origins of the Rak Mak Mak Marranunggu which counsel submitted were unresolved, thereby giving rise to “the controversy” said to exist concerning their claims to be the traditional owners and the persons holding native title in areas both north and south of the Daly River:

(a)    that the Rak Mak Mak Marranunggu migrated north of the Daly River at some time after European settlement and before World War I;

(b)    that the traditional lands of the Rak Mak Mak Marranunggu are wholly south of the Daly River;

(c)    that the Rak Mak Mak Marranunggu and another group, the Dektyerety, are in fact the same people and are the traditional owners of land north of the Daly River.

88    It is apparent that the adoption of one or other of these theories may be determinative of whether the Rak Mak Mak Marranunggu can establish continuity of interest in some areas north of the Daly River. The applicants regard the issue as important because the Town of Batchelor is in an area north of the Daly River. The respondents’ position is that, even if the Rak Mak Mak Marranunggu do have native title rights and interests north of the Daly River, the evidence is overwhelmingly to the effect that it is in areas well to the west of Batchelor.

89    In support of the contention that there was some expert evidence indicating that the Rak Mak Mak Marranunggu were not comparatively recent migrants to the north of the Daly River, counsel for the applicants referred to a report provided by Dr Green, a linguist, in Batchelor No 3. Dr Green had not given evidence in those proceedings before they were discontinued. As noted earlier, Professor Sansom did give evidence in Batchelor No 3, he having been called by the Northern Territory. Counsel referred to some passages in the report of Dr Green and in the evidence of Professor Sansom and then submitted:

[T]his material makes it clear that the anthropology and Aboriginal evidence is in an unfinished state, in a serious controversy where even the experts that are engaged in the controversy are aware that it is a serious and rational conundrum that has not yet been properly determined judicially. And we say that is the overwhelming context in which this matter came before the [Delegate].

…

Clearly, any reasonable person would have concluded that maybe the Mak Mak Marranunggu do have native title interest in this area of Batchelor. Who knows? We don’t know yet. The [Delegate] should have said that but didn’t.

90    The difficulty with this submission is that the applicants did not show that, even if the asserted controversy was resolved in their favour, it would indicate that the Rak Mak Mak Marranunggu hold or may hold native title rights and interests in the Town of Batchelor so that the Delegate could be said to have erred in law in concluding that there was “insufficient cogent supporting anthropological evidence” (as they asserted she had) or that all reasonable efforts had been made. This is especially so having regard to the following matters:

(a)    the descriptions of the eastern “boundaries” of Marranunggu Country by their own witnesses in the FRLC and to the Wagait Committee had a close correspondence, with each indicating that the eastern most “boundary” of that country was approximately 30 km to the west of Batchelor. It can of course be inappropriate to speak of a “boundary” in this context, but it is pertinent that the Marranunggu did not in either of those proceedings claim traditional ownership of land extending as far east as Batchelor;

(a)    one of the Marranunggu witnesses in Batchelor No 3 (Mr Calvin Deveraux) did assert that Marranunggu Country extended further east and encompassed the Town of Batchelor. This was not anthropological evidence and it was not supported by the report or evidence from any anthropologist. Moreover, it constituted a significant extension of the country previously claimed for the Marranunggu and was inconsistent with the findings in the FRLC report and in the Wagait Report. In fact, in the FRLC, the Rak Mak Mak Marranunggu had not made claims with respect to Areas 3, 4 and 5 which are the areas surrounding Batchelor;

(b)    Dr Sutton, who was called to give anthropological evidence by the Rak Mak Mak Marranunggu in the FLRC, located Marranunggu land as being well west of the Town of Batchelor;

(c)    Mr Stead, the anthropologist, noted in his report dated 13 October 2011 which was prepared at the request of the NLC for the purposes of Batchelor No 3, that the descriptions of the applicants in those proceedings “of Mak Mak Marranunggu eastern territorial extent are inconsistent with historical and early ethnographic accounts; the descriptions of anthropologists representing them in the FRLC and [Wagait Dispute Committee Hearing]; the Aboriginal Land Commissioner’s findings in the FRLC; and the evidence of senior Marranunggu witnesses in the FLRC”. Earlier in the report, Mr Stead had reviewed the historical and ethnographic sources (nine in all) extending back to 1895 and noted that only one indicated that some individual Marranunggu had had contact with the Batchelor/Rum Jungle region;

(d)    as noted, Dr Green is not an anthropologist, but a linguist;

(e)    Dr Green did not address the question of whether the Rak Mak Mak Marranunggu may hold native title rights and interests in the Town of Batchelor. In fact, he did not mention the Town of Batchelor at all in his report of 23 September 2011 to which counsel for the applicants referred; and

(f)    Dr Green did conclude that there was “a long term affinity” between the Mak Mak Marranunggu speech community and the Tjerratji speech community. Other evidence, in particular the 1974 report of Professor Tindale, identified the Tjerratj as a small group on the coast of the north of the Daly River, that is, well to the west of Batchelor.

91    In these circumstances, the applicants do not demonstrate any error of law by the Delegate in concluding (if she did) that there was no, or insufficient, cogent supporting anthropological evidence of the claims of the Rak Mak Mak Marranunggu over the Town of Batchelor. There was anthropological evidence on which the conclusion could be based. The evaluation of that material was for the Delegate. There was no error of law in the Delegate not attempting to resolve which of the three competing theories as to Marranunggu origins was to be preferred, or in the way she dealt with the material. Even if the Delegate could have come to some different evaluation, that would not constitute an error of law, as a wrong finding of fact by a decision-maker tribunal does not if itself constitute an error of law: Attorney-General of the State of New South Wales v Quin (1990) 170 CLR 1 at 35-6 (Brennan J).

Alleged fiduciary duties

92    The fifth error of law alleged by the applicants raised an issue about whether the NLC owed fiduciary duties to the Rak Mak Mak Marranunggu. They alleged that the Delegate had erred in:

concluding that “the NLC’s efforts to ensure all persons who hold or may hold native title in the area have been identified” were reasonable in the face of the incompatible and conflicting fiduciary duties that the NLC owed as the relevant representative body and the fiduciary duties that the NLC owed to the applicant as its legal representative in the various Federal Court proceedings and hearings referred to by the [Delegate].

93    During the course of the oral submissions, the applicants’ counsel indicated that they did not press this ground with respect to the alleged fiduciary duties. It is accordingly unnecessary to address it. The applicants’ abandonment of this ground had a consequential effect on some of their other grounds to which I will refer later.

Reliance on anthropological material not obtained for the purposes of s 203BE(5)

94    The sixth error of law alleged by the applicants was that the Delegate had erred by “relying upon anthropological material commissioned by the NLC in its capacity as the legal representative of the applicant in the various Federal Court proceedings and hearings referred to by [the Delegate] as if (erroneously) that material had been obtained for the purpose of s 203BE(5)(a) and (b)”. As I understood it, the hearings to which the applicants referred in this Ground included the FLRC and the proceedings of the Wagait Committee.

95    At times, the applicants’ contention seemed to be that, in discharging the function under s 24CK(2)(c), the Registrar should rely only on that information which had been obtained specifically for the purpose of s 203BE(5)(a) and (b), that is, the information which the representative body obtained in order to form the opinion which is the subject of its certification. At other times it was a contention that the Delegate had erred in failing to take account of the fact that much of the anthropological material had been commissioned for purposes other than s 203BE(5), and was directed to statutory concepts which differed from those under the NT Act. There seemed also to be a complaint that the NLC had not engaged any expert to provide an independent report addressing the identification of all persons who hold or may hold native title in the Town of Batchelor.

96    The applicants submitted that native title rights and interests to which the NT Act refers are “vastly different” from the interests recognised and protected by the ALR Act which had been the subject of consideration in the FRLC and by the Wagait Committee. They submitted that the expert anthropological evidence provided by the NLC to the Registrar was, with two exceptions, directed to issues arising under the ALR Act and not to the issue of native title under the NT Act. Accordingly, so the submission ran, it had been a “fundamental error” for the Delegate to have relied on that material when considering whether the NLC had taken reasonable steps of the kind required by s 203BE(5).

97    There are undoubtedly some differences between the matters to be proved to establish native title under the NT Act, on the one hand, and the matters to be proved to establish traditional Aboriginal ownership under the ALR Act, on the other. The function of an Aboriginal Land Commissioner under s 50 of the ALR Act is (relevantly) to ascertain and report on whether claimants are the “traditional Aboriginal owners” of the land in question. The terms “traditional land claim” and “traditional land owners” are defined in s 3(1) of the ALR Act as follows:

traditional Aboriginal owners, in relation to land, means a local descent group of Aboriginals who:

(a)    have common spiritual affiliation to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and

(b)    are entitled by Aboriginal tradition to forage as of right over that land.

traditional land claim, in relation to land, means a claim by or on behalf of the traditional Aboriginal owners of the land arising out of their traditional ownership.

98    Section 71 of the ALR Act authorises Aboriginals entitled to enter upon, and to use or occupy, “Aboriginal land” to do so to the extent that that entry, occupation and use is in accordance with “Aboriginal tradition” governing the rights of the Aboriginals with respect to that land. The class of persons who have these usufructuary rights will, ordinarily, be broader than those who are “traditional Aboriginal owners”.

99    The term “Aboriginal tradition” used in s 71 is defined in s 3(1) to mean:

Aboriginal tradition, mean the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships.

100    These definitions may be compared with the definition of native title in s 223(1) of the NT Act.

101    Counsel did not attempt to identify, in an exhaustive way, the differences in the concepts used in the two sets of legislation. It may not be practical to do so.

102    One requirement for the existence of native title is that the rights and interests giving rise to native title were possessed under the traditional laws acknowledged and the traditional customs observed by the relevant Aboriginal group at the time of European settlement and have continued to be recognised by the group. A consequence of this is that a substantial break in continuity will mean that native title has been extinguished: Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422 at [87]-[89]. The ALR Act does not seem to incorporate this requirement of continuity or, at least, it does not do so in the same way.

103    Counsel for the applicants emphasised that the elements of “common spiritual affiliation” and “primary spiritual responsibility” in the definition of “traditional Aboriginal owners”, do not have counterparts in the NT Act.

104    Counsel also drew attention to the nature of the native title rights and interests claimed by the Rak Mak Mak Marranunggu in the Batchelor No 3 claim. These were interests of a kind conventionally claimed in an application for the determination of native title, and the submission (as I understood it) was that these did not correspond with the ALR Act concepts.

105    The authorities have acknowledged the absence of precise correspondence between the matters to be established to prove a claim for recognition of native title, on the one hand, and traditional Aboriginal ownership and Aboriginal tradition within the meaning of the ALR Act, on the other: Risk v Northern Territory of Australia [2006] FCA 404 at [437]. See also Pareroultja v Tickner (1993) 42 FCR 32 at 42 concerning the concept of native title expounded in Mabo v Queensland (No 2) (1992) 175 CLR 1. In Risk, Mansfield J gave as one reason (amongst several) for not adopting, pursuant to s 86 of the NT Act, the report of the Land Commissioner in the Kenbi Land Claim that the expert evidence presented to the Commissioner had related to the different issues which arise under the ALR Act, at [442].

106    Nevertheless, the absence of a precise correspondence between the concepts does not have the consequence that evidence (including expert anthropological evidence) and other materials prepared in connection with claims under the ALR Act may not be relevant to, and probative of, the issues arising under s 24CK(2) and s 203BE(5) of the NT Act. Whether it is so relevant and probative will depend on the nature of the material and its capacity to bear rationally on the question of whether all reasonable efforts as required by s 203BE(5) were made. That some of the material may be pertinent and some may not does not warrant an a priori conclusion that the evidence may never be probative.

107    Given the requirements of the ALR Act and the nature of the anthropological evidence and ethnographic material, it is to be expected that the evidence bearing upon the existence of traditional Aboriginal ownership and Aboriginal tradition may have a direct relevance to the identification of native title rights and interests under the NT Act and to whether those rights and interests are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant claimants. Such a conclusion is not surprising. The rights referred to in both Acts are based on customary laws. Both pieces of legislation endeavour, at a general level, to reflect “the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands” – see the Preamble to the NT Act and the Second Reading Speech of the Minister for Aboriginal Affairs on the introduction of the Bill for the ALR Act on 4 June 1976 (at 2). The evidence, whether in a claim under the NT Act or under the ALR Act, will commonly be directed to the same peoples, the same laws, the same customs and the same genealogies. The discussions of the concepts under the ALR Act in R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 349 and 355 and in Pareroultja are further indications that material tending to show or disprove claims under the ALR Act may be probative of claims under the NT Act.

108    Obviously enough, the Registrar may need to be alert in the circumstances of a given case to the potential significance of the differences in the legislation. However, recognising that that is so does not provide a basis on which to conclude that evidence and material prepared in connection with proceedings under the ALR Act may not be relevant to, and probative of, issues arising under the NT Act. The applicants seemed to accept, ultimately, that this is so as, in the submissions in reply, counsel said:

There’s evidence of inquiries about the Land Rights Act, and we don’t say that that’s completely irrelevant, we don’t say that at all.

109    The submission, to the extent that it was advanced, that the Registrar should have had regard only to information obtained by the NLC for the purpose of providing the s 203BE(5) certification, cannot be accepted. In the first place, the Delegate was bound by s 24CK(4) to take into account any information provided to the Registrar in relation to the matter by the Mak Mak Objectors and the NLC. It would have been an error of law for the Delegate not to have done so: R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329.

110    The expression “in relation to” is one of broad import and takes its colour from the context in which it is used. It is not necessary for present purposes to attempt an exegesis of the precise reach of the expression in the context of s 24CK(4). It is sufficient to say that, in my view, it encompasses any information capable of bearing in a rational way on whether all reasonable efforts of the requisite kind had been made.

111    I am unable to identify any aspect of text, context or purpose in s 24CK or s 203BE which would indicate that the information which the representative body may give to the Registrar is confined to material which it has obtained specifically for the purpose of providing the s 203BE(5) certificate. Nor is it possible to identify any aspect of text, context or purpose to support a conclusion that the “reasonable efforts” to which s 203BE(5) refers are confined to efforts undertaken for the sole or primary purpose of the representative body providing its certification. Section 203BE(5) does not contain any temporal limitation on the material to which regard may be had and, as previously noted, does not even require that the representative body itself has made all the reasonable efforts. That being so, it is not reasonable to suppose that a representative body may not have regard to the evidence and material gathered by others, including for the purpose of authorisation of the ILUA by one or other of the means required by s 251A.

112    Sections 24CK and 203BE(5) should be understood as operating in the diverse circumstances in which an ILUA may be concluded. These circumstances will commonly result in representative bodies and others acquiring a good deal of information about the existence of native title rights and interests in the subject area. It is not to be expected that a representative body would be precluded from relying on relevant aspects of that information in providing its certification.

113    The construction for which the applicants seemed to contend would produce a number of inconvenient results. As counsel for the Northern Territory submitted, it would require the Registrar (and therefore probably the representative body) to disregard all efforts made before the entry into an ILUA to identify those who hold or may hold native title in relation to the area, including disregarding the course of any previous native title determination proceedings and anthropological investigations undertaken in connection with those proceedings. It would require the representative body to disregard the knowledge which it had acquired in the discharge of its other functions under the NT Act. Such a result is so obviously not sensible that one would not readily regard it as the statutory intention.

114    Finally, if s 24CK was construed in the matter for which the applicants contend, one would have to consider how the limitation is to be applied in relation to a representative body’s response to material provided to the Registrar by objectors. That would be pertinent in the present case because the Mak Mak Objectors provided the Registrar, in support of their objections, with a good deal of material including:

(a)    a statutory declaration of Dr Payi Linda Ford made on 10 September 2015;

(g)    a copy of the applications for native title in Batchelor No 3;

(h)    particulars of the claim in Batchelor No 3 filed by the Rak Mak Mak Marraunggu People;

(i)    the whole of the transcript of the proceedings before Mansfield J in Batchelor No 3 between 23 and 27 May 2011;

(j)    the decision of Mansfield J in Batchelor No 3 (Hazelbane on behalf of the Warai and Kungarakany Groups v Northern Territory of Australia [2011] FCA 1186);

(k)    a copy of the outline of submissions of the Rak Mak Mak Marranunggu People in Batchelor No 3;

(l)    a copy of the report of Dr Ian Green dated 23 September 2011;

(m)    a 15 page response to the NLC submissions prepared by the legal representative of the Mak Mak Objectors;

(n)    a statutory declaration by the legal representative of the Mak Mak Objectors made 22 January 2016;

(o)    a letter from the anthropologist, Dr Deborah Rose dated 14 January 2016;

(p)    a copy of the email exchange between the legal representative of the Mak Mak Objectors and Dr Green dated 19 January 2016;

(q)    a copy of the preliminary report by Dr Green to the Wagait Committee dated 18 February 1994; and

(r)    a copy of a further report from Dr Green dated 20 February 1994.

As can be seen, the Mak Mak Objectors wished the Registrar to have regard to the material prepared in relation to the Wagait Committee hearing and in relation to Batchelor No 3.

115    The material provided by the NLC comprised:

(a)    a 28 page submission dated 6 November 2015;

(s)    a statutory declaration by its Chief Executive Officer, Mr Morrison, made 9 November 2015;

(t)    excerpts of the transcript of evidence taken in the FRLC containing descriptions by the Rak Mak Mak Marranunggu witnesses, their anthropologist (Dr Sutton) and their counsel of the extent of Rak Mak Mak Marranunggu Country;

(u)    a copy of the FRLC report;

(v)    a copy of a map depicting the areas of land granted as Aboriginal Land on the basis of the recommendations of the Honourable J Toohey;

(w)    a copy of the 1993 submission prepared by an anthropologist, Deborah Rose, on behalf of the Rak Mak Mak Marranunggu People for the Wagait Committee;

(x)    excerpts of the transcript of the proceedings before the Wagait Committee in which various Rak Mak Mak Marranunggu witnesses described the extent of their country;

(y)    the Wagait Committee report;

(z)    a copy of the Wagait Committee composite map;

(aa)    a copy of the map of the Wagait Land Trust prepared by mapping consultants at the request of the NLC;

(ab)    a copy of the judgment in Hazelbane v Northern Territory [2008] FCA 291 relating to the application to strike out the Batchelor No 2 claim;

(ac)    the affidavits of Tom Petherick made 1 March 2013 and 16 June 2009 in relation to the Batchelor No 3 claim;

(ad)    the anthropological report of Mr Stead dated 13 October 2011 concerning the claimed native title rights and interests of the Rak Mak Mak Marranunggu in the Town of Batchelor prepared at the request of the NLC who was acting in those proceedings on behalf of the applicants in Batchelor No 1;

(ae)    a copy of the anthropological report prepared by Professor Sansom dated 20 May 2011 at the request of the Northern Territory about the native title rights and interests of the Rak Mak Mak Marranunggu in the Town of Batchelor;

(af)    a copy of the affidavit made by one of the applicants in Batchelor No 3 (Calvin Deveraux filed on 15 April 2011);

(ag)    a copy of a map prepared by the NLC dated 20 May 2011 showing the descriptions of the Rak Mak Mak Marranunggu country given by Dr Rose in her report to Wagait Committee in 1993, Ms Deveraux in her evidence before the Wagait Committee; Mr Calvin Deveraux in his affidavit made on 15 April 2011; and a Marranunggu witness in the FRLC;

(ah)    a copy of the anthropological report of Mr Stead dated 14 August 2013 concerning the native title rights and interests of the FRBG in the Town of Batchelor, obtained by the NLC in connection with the Batchelor No 1 applicants’ further application to strike out the Batchelor No 2 claim; and

(ai)    excerpts from the transcript of statements made by Mr Tom Petherick, a member of the FRBG and Mr Wrenn, counsel for the FRBG at directions hearings in relation to Batchelor No 1.

116    Counsel for the applicants did not submit that this material should not have been regarded as information “in relation to” the matter for the purposes of s 24CK(4). Such a submission would have been difficult to sustain. Accordingly, all of this material was information which the Delegate was required by s 24CK(4) to take into account, even though much of it had come into existence well before the ILUA had been concluded and for purposes other than the NLC’s certification. Quite apart from that, the concluding words of s 24CK(4) permitted the Registrar to take into account “any other matter or thing”, and there is no reason to suppose that the material provided to the Registrar by the NLC was not encompassed by that expression.

117    The fact that the NLC did not obtain another anthropological report for the purposes of providing its certification was a matter for the Delegate’s consideration in the light of all the information before her. For present purposes, it is sufficient to say that the NLC had not been bound to do so.

118    This ground fails.

Looking behind the certificate

119    The seventh error alleged by the applicants was that the Delegate had erred in law by “failing to determine as a matter of law that, in the circumstances described in ground 1(e) above, the [Registrar] had a power to look behind the certificate of the representative body and determine for itself whether the Rak Mak Mak Marranunggu are persons who hold or may hold native title in relation to the land and to conclude that the representative body had not taken all reasonable steps to identify all persons who hold or may hold native title in relation to the land”.

120    Ground 1(e) to which this ground referred was the ground relating to the alleged fiduciary duties of the NLC which the applicants abandoned. That abandonment may be taken to have had a corresponding effect on this ground as well.

121    In any event, the applicants did not develop any submissions in support of this ground and I consider that it should be taken to have been implicitly abandoned. I also note that the Delegate identified her task in [50] of the reasons, as set out above, and I have found that that did not involve error.

Conclusion on alleged errors of law

122    I conclude that the applicants have not established that the Delegate made any of the errors of law which they allege.

Failure to take relevant considerations into account

123    The applicants alleged that the Delegate had failed to take five relevant considerations into account in reaching her decision, and sought thereby to invoke the elaboration of s 5(1)(e) of the ADJR Act contained in s 5(2)(b).

Applicable principles

124    Before addressing the five matters individually, it is convenient to mention some matters of principle.

125    The word “improper” in s 5(1)(e) does not mean simply wrong or incorrect. It connotes something which, for some reason known to the law, is not a proper exercise of power: Borkovic v Minister for Immigration and Ethnic Affairs (1981) 39 ALR 186 at 189.

126    In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41, Mason J summarised the applicable principles as follows:

(a)    the ground of failure to take into account a relevant consideration can only be made out if decision-makers fail to take into account a consideration which they are bound to take into account in making their decision;

(a)    the factors which a decision-maker is bound to consider in making the decision are to be determined by construction of the statute conferring the discretion. When the factors which the decision-maker is bound to consider are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the statute;

(b)    not every consideration which a decision-maker is bound to take into account but does not will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor may be so insignificant that the failure to take it into account could not have materially affected the decision;

(c)    the limited role of a court reviewing the exercise of the administrative discretion must constantly be borne in mind. It is not the function of the Court to substitute its own decision for that of the decision-maker by exercising the discretion which the legislature has vested in the decision-maker; and

(d)    in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.

127    In this summary of the principles, Mason J referred to Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 in which Deane J said of s 5(2)(b) of the ADJR Act that it did not “mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack decision on the ground that a particular one of them was not specifically taken into account”. It is also appropriate to note the caution sounded by Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 at 184 of avoiding the temptation to express a conclusion in terms of one of the recognised grounds for judicial review whilst in truth making a decision based on the merits.

The required matters to be considered

128    On their face, s 24CK(2)(c) and s 203BE(5) required prima facie that the Delegate consider:

(a)    the efforts made to ensure that all persons who hold or may hold native title in the area of the Town of Batchelor were identified;

(a)    whether those efforts constituted “all reasonable efforts” for that purpose; and

(b)    whether the persons so identified had authorised the ILUA.

129    The self-focused nature of the objections of the Mak Mak Objectors meant that their submissions to the Delegate were directed to the second of these elements. The submissions of the applicants before me were similarly directed. The contention was, in effect, that had the NLC made all reasonable efforts, it would have identified the Rak Mak Mak Marranunggu as persons who may hold native title in relation to the Town of Batchelor. In this respect, counsel submitted that the unresolved “controversy” as to the origins of the Rak Mak Mak Marranunggu meant that it should have been concluded that they were persons who “may hold” native title in relation to the Town of Batchelor.

130    The Delegate’s consideration of these matters required that she apply the appropriate understanding of the expressions “all reasonable efforts have been made” and “who hold or may hold native title” in the area.

“All reasonable efforts”

131    I have already referred to some aspects of the requirement concerning the making of all reasonable efforts. Section 203BE(5) precludes a representative body from certifying an ILUA unless it is of the opinion (relevantly) that all reasonable efforts have been made to ensure the identification of all persons or hold or may hold native title in relation to the land in question. However, s 203BE(5) does not oblige the representative body itself to make the requisite reasonable efforts. A representative body can form the opinion required for its certification on the basis of efforts made by others.

132    I also observe that s 203BE(5) does not contain any temporal specification with respect to the required efforts. Further, it does not require that all persons who hold or may hold native title in the area in question have been identified, only that the representative body be of the opinion that all reasonable efforts have been made to ensure that they have been identified. The section leaves open the possibility that, despite all reasonable efforts having been made, some persons who hold or may hold native title may not be identified.

133    Whether the efforts which have been made are to be characterised as “all reasonable efforts” is a question of fact, to be determined by reference to the circumstances of the given case. As counsel for the Batchelor No 1 respondents pointed out, much may depend on the extent to which native title in the area in question has been the subject of previous research, investigation and report. In those cases in which there has been extensive research, investigation and report, and the results of those efforts are known to the representative body, comparatively little further may be required before it can form the requisite opinion. When the research and investigation is undeveloped, much more may be required.

134    Several of the applicants’ submissions had at their base the assumption that it was for the NLC itself to make the requisite efforts and that it had not been open to the NLC to rely on materials garnered in the FRLC or by the Wagait Committee. That submission cannot be accepted, for the reasons just given.

“Who hold or may hold native title”

135    A number of submissions at the hearing were directed to the meaning of this expression.

136    In this case, the Registrar was not required to determine whether the Rak Mak Mak Marranunggu were persons who hold or may hold native title over the Town of Batchelor. Her task (putting to one side issues of onus) was to consider whether all reasonable efforts had been made to ensure that those who hold or may hold native title over Batchelor had been identified. It is inherent in the process that the making of such reasonable efforts could result in the inclusion of some persons and the exclusion of others. When all reasonable efforts of the requisite kind have been made and some persons have, by that process, been excluded, the Registrar is not entitled to refuse registration of the ILUA.

137    As counsel for the Northern Territory submitted, evidence adduced by objectors tending to prove that they are, or may be, native title holders not identified by the representative body is relevant insofar as it informs the determination of whether the representative body did make the requisite reasonable efforts. Depending on its strength, the evidence may or may not be sufficient to discharge the onus cast upon objectors by s 24CK(2)(c).

138    The term “native title holder” is defined in s 224 of the NT Act as follows:

The expression native title holder, in relation to native title, means:

(a)    if prescribed body corporate is registered on the national native title register as holding the native title rights and interests on trust – the prescribed body corporate; or

(b)    in any other case – the person or persons who hold the native title.

139    However, the NT Act does not contain any definition of the expression “who hold or may hold native title”. The words “who … may hold native title” are capable of a range of meanings. Is a mere possibility that persons may hold native title sufficient? Is an assertion that persons hold native title sufficient, by itself, to indicate that they are within the statutory expression? Does the expression connote those who have lodged a claim for the determination of native title but whose claim has not yet been determined or those who have authorised, under s 251B, the making of a claim under s 61 but which has not yet been lodged? Does it connote persons who are in neither of the latter two categories but in respect of whom there is a reasonable basis for thinking that they do hold native title? There may be other possible meanings.

140    The Delegate construed the expression “who … may hold native title” as involving an element of reasonableness. She referred to the statement of Reeves J in QGC Pty Ltd v Bygrave (No 3) [2011] FCA 1457; (2011) 199 FCR 94 (QGC No 3) that it must be reasonable to conclude that a person, group or community holds native title in the area and continued:

[124]    Although the expression “persons who hold or may hold native title” is expansive and inclusive, I do not understand that s 203BE(5)(a) and the meaning of all reasonable efforts to require in every situation that any persons who claim to hold native title must then be identified as “persons who hold or may hold native title” for this purpose. I consider that in circumstances such as here where claims to hold native title have been subject to reasonable and detailed inquiries by the representative body and then those claims are found to be wanting in the opinion of the representative body, it would not be required to subsequently identify those persons as “persons who hold or may hold native title”. In that regard, the objectors have not established that all reasonable efforts were not made by [the] NLC in the circumstances here.

(Emphasis added)

141    The parties referred to a number of decisions of this Court bearing on the construction of the term “who … may hold native title”.

142    In Kemp v Native Title Registrar [2006] FCA 939; (2006) 153 FCR 38, Branson J considered whether a member of a competing group who was a respondent to proceedings for the determination of native title brought by another group should be regarded as a person who may hold native title within the meaning of s 24CG(3)(b)(i). Her Honour identified, at [49], two competing views as to the meaning of the words in that provision, namely:

(a)    that the words should be construed literally so that, for example, where two competing groups each claims to hold the common or group rights which constitute the native title in the area, the words are capable of including the persons in both groups; or

(b)    that the words should not be construed literally but should be understood to refer to all persons who, according to the traditional laws and customs of the registered native title claimants, hold the common or group rights which constitute the native title in the area.

143    Branson J said that the decision as to which of these competing views was preferable was difficult, but considered that she should apply “the literal meaning”. Her Honour said at [58]:

I confess to having found this issue difficult to resolve. I accept that the construction for which the respondents contend would result in a logically coherent scheme for the registration of area agreements. However, a literal construction of s 24CG(3)(b)(i) does not, in my view, result in an absurd or otherwise plainly unlikely outcome. In the absence of a compelling case to do so, I am reluctant to depart from the literal meaning of the words which the [legislature] has chosen because a departure from that meaning could, in this and other cases, result in the loss of rights which an individual might otherwise enjoy.

144    Later, Branson J said that had Mr Kemp’s claim been “merely colourable”, it would have been open to the Registrar to conclude that it was without substance, so that his authority for the ILUA was not required. The applicants in this case submitted that the Delegate should have applied the Kemp approach, with the consequence that the only question for her was whether the claims of the Rak Mak Mak Marranunggu were “merely colourable”. They called this “the merely colourable test”.

145    It is not clear that Branson J intended that the two competing views which she had identified to be understood as exhausting the possible alternative constructions. As already indicated, it does seem that other constructions may be open. It may be that Branson J framed the two competing views as the alternatives having regard to the particular issue in dispute in Kemp. Although her Honour said that the literal construction was preferable, she did not articulate what that construction was, and gave only one example of the result it would produce. It is also to be noted that Branson J did not elaborate the sense in which she used the word “claims” in the example.

146    Two further matters may be noted. First, it is evident from Branson J’s rejection of the second alternative that her Honour did not consider that those who “hold or may hold” native title are confined to registered native title claimants. Secondly, it is evident from her Honour’s references to claims which are “merely colourable” and “without substance” that she contemplated that some assessment of the merit of a claim may be necessary. Again, I do not understand Branson J to have been stating the only circumstances in which a claim could be regarded as “without substance”.

147    In Fesl v Delegate of the Native Title Registrar [2008] FCA 1469; (2008) 173 FCR 150, Logan J said, in the course of describing the statutory scheme for ILUAs:

[21]    The statutory provision for the making of an area agreement in respect of an area even where there are no registered native title claimants or registered native title bodies corporate balances two of the main objects of the Native Title Act. Out of an abundance of caution and evidencing the recognition by the Parliament of the importance of native title, it liberalises membership of a “native title group” in those circumstances to the extent of permitting those who do nothing more than claim to hold native title in relation to an area to have an opportunity to be heard and to have an opportunity to participate in decision-making. …

(Emphasis added)

His Honour did not indicate the sense in which he used the word “claim” in this summary, although in context it may be that his Honour used the word in the sense of “assert”.

148    QGC No 3 concerned an application for judicial review of a decision of a delegate of the Registrar refusing to register an ILUA because she was not satisfied that all persons who hold or may hold native title over the area in question had authorised the making of the agreement.

149    Reeves J distinguished the decision in Kemp on the facts and engaged in an extensive consideration of the scheme for the registration of ILUAs in Div 4 of the NT Act. His Honour concluded that the expression “who hold or may hold native title” incorporates notions of reasonableness:

[100]    Finally, the words “hold or may hold” plainly cover a wide range of situations where a person could be said to hold native title in the area of land and waters concerned. They clearly extend to a formal native title determination under the Act and to a native title claim group with a registered application for the determination of native title under the Act. In my view they also extend to any other basis upon which it is reasonable to conclude that a person or group of persons may hold native title in the area concerned. So, apart from a registered claim, they would extend to an unregistered claim, or even an informal claim made, for example, by a person attending an authorisation meeting in response to a notice of that meeting and making a claim at that meeting to hold native title in the area. Moreover, apart from a formal or informal claim, they would also extend to any person or group of persons with a characteristic from which it is reasonable to conclude that a person or a group holds native title in any part of the area covered by the agreement. Such a characteristic may include membership of a particular Aboriginal family that was widely accepted by the local community to hold native title in the area, or being a long term resident of a particular area.

[101]    Taking all these observations into account, I consider the expression “all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement” in s 24CG(3)(b)(i) is to be construed expansively and inclusively to mean every individual, group of persons, or community, of Aboriginal or Torres Strait Islander descent, who holds native title, or by any means makes a claim to hold native title, or otherwise has a characteristic from which it is reasonable to conclude that person, group, or community holds native title, in any part of the area covered by the agreement.

(Emphasis added)

150    As is apparent, Reeves J did not apply the “merely colourable test”.

151    The NLC also referred to the decision of the Full Court in Murray v National Native Title Tribunal [2003] FCAFC 220; (2003) 132 FCR 402. At [23], the Full Court said:

Where an application for a Subdivision C agreement to be registered includes a statement to the effect required by s 24CG(3)(b), the Registrar must not register the agreement unless the conditions specified in s 24CL(2) and (3) are satisfied. Those conditions are calculated to ensure that all persons who hold, or may hold, native title in the area have been identified and notified of the agreement and have either authorised the making of the agreement or successfully taken steps to formalise their claim to hold native title in relation to land or waters in the area covered by the agreement.

(Emphasis added)

152    The NLC relied upon the emphasised words. It accepted that the remarks of the Full Court concerned s 24CL(2) and (3), namely, the registration of ILUAs which have not been certified by a representative body. The NLC submitted nevertheless that the remarks also applied to s 24CK, relying in this respect to the statement of Reeves J in QGC Pty Ltd v Bygrave (No 2) [2010] FCA 1019; (2010) 189 FCR 412 at [25] that the remarks identified more generally the purpose of the procedural provisions of Subdiv C of Pt 2 Div 3 of the NT Act. That may be so, in a general sense, but the words on which the NLC relied (“or successfully taken steps to formalise their claim”) are directed specifically to provisions in s 24CL which do not have a counterpart in s 24CK. I do not regard the passage in Murray on which the NLC relied as being of material assistance presently.

153    The applicants submitted that the Delegate should have applied the approach of Branson J in Kemp and that, by failing to do so, she had failed to have regard to a relevant consideration. As I understood it, this was a submission that the Delegate should have applied a literal construction with the consequence that, even though the Rak Mak Mak Marranunggu have no formal proceedings on foot by which they seek to maintain a claim for native title over the Town of Batchelor, they are persons who may hold native title in relation to it because they assert that they do have native title, and that assertion should not be regarded as colourable.

154    In my opinion, this submission should not be accepted. Kemp should be regarded as a decision on its own facts. Like Reeves J, I consider that the term “who … may hold native title” incorporates a notion of reasonableness. The term should be understood as though it read “or who may, reasonably considered, hold native title”. A person may be so regarded because they have some characteristic going beyond their own assertion, indicating that they may be a native title holder. I appreciate that this involves reading into the term words which the legislature did not use, but that does seem to be the statutory intention.

155    A number of matters indicate to my mind that a construction along these lines is appropriate.

156    Regard should be had first to the evident purpose of s 24CK and s 203BE(1) and (5). When details of an ILUA are entered on the Register, the agreement has effect, amongst other things, as if it were a contract among the parties to the agreement and as if all persons holding native title in relation to any of the land or waters in the area covered by the agreement who are not already parties to the agreement, were bound by it in the same way as the registered native title body corporate, or the native title group, as the case may be (s 24EA(1)). Further, the process by which future acts may be validated, can then commence.

157    It is evident that in this context, s 203BE(5) is directed to ensuring that ILUAs are properly authorised under s 251A. It does so by requiring that all reasonable efforts be made to identify those who may participate in one or other of the authorisation processes contemplated by s 251A. The first of those alternatives is a process of decision-making under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title. To my mind, this suggests that those who may hold native title are a more confined group than those who make a mere assertion of native title.

158    Section 203BE(5) contemplates that the persons who hold or may hold native title in relation to the land in question will be finite and, further, may be identified by the making of all reasonable efforts. The notion that any persons making only an assertion of native title will be persons who “hold or may hold” native title does not seem consistent with this understanding. It is not readily to be supposed that the reasonable efforts contemplated by s 203BE(5) extend to ensuring that persons who may, possibly, choose to assert native title are identified, whether or not their assertions lack substance. Nor does it seem reasonable to suppose that the NT Act intends that persons making assertions of native title without a reasonable basis should nevertheless be involved in the authorisation of the making of an ILUA.

159    The scheme for the making and registration of ILUAs contained in Subdiv C of Pt 2, Div 3 of the NT Act contemplates “claimants” of the three kinds:

(a)    “registered native title claimants” (s 24CD(2));

(c)    a “person who claims to hold native title” (s 24CD(2), (3) and (4), s 24CI)(1)); and

(d)    “persons who hold or may hold native title” (ss 24CG(3), 203BE, 251A).

160    Counsel for the Batchelor No 1 Respondents submitted that these should be ranked in descending order of statutory status as (a), (c) and (b). It is unnecessary in my view to consider the merit of that particular submission. What is pertinent for present purposes is that Div 3 of Pt 2 of the NT Act uses the different terminology. All of these provisions were introduced into the NT Act by the Native Title Amendment Act 1998 (Cth). These circumstances are strongly suggestive of a legislative intention that each expression have a different meaning, even if there be some overlap between them. Of course, it is one thing to identify that different meanings are intended: it is another to identify those meanings.

161    The term “registered native title claimant” is defined in s 253 of the NT Act.

registered native title claimant, in relation to land or waters, means a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters.

162    Neither of the other two terms is defined but it can be inferred that they encompass a wider class of persons than does the term “registered native title claimant”.

163    Before addressing these meanings, I note that s 253 also contains a definition of “claimant application”:

claimant application means a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended.

As can be seen, this term applies to any native title application that a native title claim group has authorised to be made. It encompasses applications both before and after registration and filing in this Court. The definition of the term in this form was also introduced by the 1998 amendment. An obvious cognate of the defined term would have been “claimant applicant” but the NT Act does not use that term.

164    The term “holds or may hold native title” is found in provisions whose purpose is directed to ensuring that native title holders, including those whose native title has not yet been formally recognised, and who may be affected by the making of an ILUA, have been identified and have authorised its making in the manner contemplated by s 251A. It seems pertinent that despite this being the purpose of those provisions, they do not use the term “who claim to hold native title”.

165    It may also be pertinent that the provisions in the NT Act using the term “person who claims to hold native title” (which, in addition to those mentioned, include ss 24DE(4), 60AB(4)(e) and 87A(1)(c)(ii)) do not use a term such as “claimant applicant” or some other cognate of the term “claimant application”. That suggests that the term “person who claims to hold native title” encompasses a broader class of persons than members of a claim group which had authorised a native title determination application to be made. The very fact that the term uses the word “person” in the singular is another indication of this.

166    A natural meaning of the word “claim” in the expression “persons who claim to hold native title” is something like “assert”. That understanding of its meaning seems to fit aptly in the provisions of the NT Act in which it is used. If that be correct, it is probable that the term “those who hold or may hold native title” is directed to a narrower category of people. It also suggests that it would be inappropriate to regard the term “who may hold native title” as synonymous with “those who assert that they hold native title”.

167    The terminology used in s 24CI is another indication that those who “may hold” native title are a narrower class of persons than those who claim native title. It extends the right of objection to the registration of an ILUA to any person “claiming to hold native title” but, confines that person’s ground of objection to a complaint that the requirements of s 203BE(5)(a) or (b) were not satisfied. That is, persons who claim to hold native title may object to the registration only on the basis that all reasonable efforts were not made to ensure that those who hold or may hold native title were identified or that not all the identified persons had authorised the making of the ILUA. That suggests that, while the mere assertion of native title may be sufficient for a person to be characterised as a person claiming native title, something more is required before a person can be regarded as one who “may hold” native title.

168    This scheme of provisions suggests that a person may be a person who claims to hold native title without being a person who may hold native title. Conversely, a person “may hold” native title even though they have not yet claimed it, formally or informally.

169    In my opinion, all these matters point against the word “may” in the term “who … may hold native title” being used in the sense of mere possibility, so as to encompass persons for whom there is a theoretic possibility that they may hold native title. Instead, it seems more natural to understand the term as referring to persons who, although not yet recognised, should be regarded as potential native title holders. An element of objectivity is involved. The person should be regarded as one who may hold native title because of some known characteristic concerning them. Mere assertion will be insufficient.

170    Thus, I consider the expression “who hold or may hold native title” should be construed as though it read “who hold or, reasonably considered, may hold native title”. It follows that I agree with the opinion of Reeves J in QGC No 3 that the term “may hold” encompasses those in respect of whom there is a reasonable basis for concluding that they may hold native title in the area. There was no error by the Delegate in adopting that approach.

171    I now turn to address the particular relevant considerations said by the applicants not to have been taken into account by the Delegate.

The circumstances described in Grounds 1(e) and 1(f)

172    The applicants’ first pleaded complaint was that the Delegate had not taken into account the circumstances described in paras 1(e) and 1(f) of their particulars.

173    As Ground 1(e) of the applicants’ particulars contained the allegation concerning the fiduciary duties of the NLC which the applicants abandoned, they did not press this aspect of this ground and it need not be considered further.

174    Ground 1(f) was the allegation that the Delegate had erred in law by relying upon anthropological material commissioned by the NLC in its capacity as the legal representative of the applicant in various Federal Court proceedings and hearings as if that material had been obtained for the purpose of s 203BE(5)(a) and (b).

175    I have already indicated that I have not been able to discern any feature of the text, context or purpose of s 24CK(2) and s 203BE which supports the view that the Registrar may have regard only to material obtained by a representative body for the purpose of discharging its functions under s 203BE(1)(b) and (5). Instead, s 24CK(4) requires the Registrar to take into account any information given to the Registrar in relation to the matter by the Objectors and the representative body. By expressing the obligation of the Registrar in this way, s 24CK(4) implicitly excludes an implication of the kind for which the applicants contend, namely, that the Registrar should have regard to material of a confined kind only.

176    I note again, the inconsistency in the applicants’ submission, given that the Mak Mak Objectors had provided the Registrar with documents relating to the Batchelor No 3 claim. That material contained cross references to the FRLC report and to the proceedings of the Wagait Committee. Further, the submissions made to the Delegate by the legal representatives of the Mak Mak Objectors relied, amongst other things, on aspects of the report of the Wagait Committee.

177    As noted, the assessment of the weight to be attached to the various pieces of evidence and information provided, was a matter for the Delegate, and not for this Court.

178    This ground fails.

No independent report obtained by the NLC

179    The second matter said by the applicants not to have been taken into account by the Delegate was “the failure of [the NLC] to engage any expert to provide an independent report addressing the issue of identifying all persons who hold or may hold native title”.

180    The applicants did not address any submission indicating that this was a matter which the Delegate was bound to consider. Not only does the NT Act not require a representative body to obtain an expert report before providing the s 203BE certification, it does not require a representative body itself to make the requisite reasonable efforts. As already indicated, it is open to a representative body, acting conscientiously, to provide the certification based on the efforts made by others.

181    Accordingly, this ground must fail. I also observe that the applicants’ legal representatives’ submissions to the Delegate did not include a submission that she should take account of the circumstance that the NLC had not commissioned a further expert report before providing the certification.

A failure to consider the linguistic evidence of Dr Green and the NLC’s failure to consider that evidence

182    The third relevant consideration which the applicants submitted the Registrar had failed to take into account was “the challenge posed to the anthropological evidence adduced in the [ALR Act] claims by the linguistic evidence of Dr Ian Green and the failure of the [NLC] to consider that material”.

183    This ground fails for two reasons. First, these were not matters which the Delegate was bound, in the Peko-Wallsend sense, to consider. Secondly, the Registrar did take into account the reliance by the Mak Mak Objectors on Dr Green’s report. She referred to it explicitly at [58] when summarising the NLC’s response to the matters relied upon by the Mak Mak Objectors. The Delegate noted, at [93], the Mak Mak Objectors’ submission that the NLC had ignored the linguistic evidence of Dr Green. Further, the Delegate noted the Mak Mak Objectors’ submissions that the NLC had not considered Dr Green’s report before certifying the Batchelor ILUA, at [96]. Accordingly, this ground also fails at the factual level because it is not reasonably to be supposed that the Delegate did not consider the very matters which she chose to summarise in her reasons.

Evidence of bias

184    By this ground, the applicants submitted that the Delegate had failed to take into account as a relevant consideration “the evidence of bias of [the NLC] in its assessment of the Mak Mak Marranunggu claims to be persons who hold or may hold native title in relation to the land”. In Ground 2(d), the applicants gave four particulars of the alleged bias.

185    This ground fails for the same reasons as did the previous ground. It was not a matter which the Delegate was bound to consider in the Peko-Wallsend sense and, in any event, the Delegate did refer expressly to the Mak Mak Objectors’ submission that the NLC are “partisan and biased” against the interests of the Mak Mak Marranunggu, at [92].

The NLC’s certification of the Rak Mak Mak Marranunggu as native title holders in other locations

186    By this ground, the applicants contend that the Delegate failed to take into account as a relevant consideration “the fact that [the NLC] advances the members of the Mak Mak Marranunggu clan as the holder of native title rights and interests in relation to land the location of which is consistent with the assertions of Dr Green and inconsistent with the assertions advanced by [the NLC] in responding to the Mak Mak Marranunggu objection”.

187    The applicants relied in this respect on the fact that representatives of the Rak Mak Mak Marranunggu clan were the registered claimants in respect of three applications for the determination of native title (Lower Reynolds River NTD6060/2001; Welltree NTD6004/2002; and Labelle Downs NTD6029/2002), and that the NLC had certified those applications pursuant to s 203BE(1)(a) of the NT Act.

188    This ground fails for the same reasons as the previous two grounds. The Delegate was not “bound” to have regard to these matters. At best, they were matters for the Delegate to consider along with the other evidence and to attach such weight to them as she thought appropriate. Further, the Delegate noted, at [65], that the Mak Mak Objectors had provided evidence that the Rak Mak Mak Marranunggu are registered claimants in respect of the Lower Reynolds River, Welltree and Labelle Downs native title claims. The Delegate also noted the NLC’s response to that submission, namely, that the areas to which the Lower Reynolds River, Welltree and Labelle Downs native title claims related are a substantial distance from the Town of Batchelor, at [65]. It is true that the areas the subject of those three native title claims are north of the Daly River but the applicants did not point to any material supporting their assertion that the Delegate had overlooked that obvious circumstance.

Summary with respect to relevant considerations

189    For these reasons, the applicants do not make out any of their grounds alleged a failure by the Registrar to take into account a relevant consideration.

Taking irrelevant considerations into account

190    The applicants contended that the Delegate’s decision was an improper exercise of the power under s 24CK(2)(c) because she had, within the meaning of s 5(2)(a) of the ADJR Act, taken into account two irrelevant considerations.

Applicable principles

191    As Griffiths J noted in Coutts v Close [2014] FCA 19 at [180], the concept of taking an irrelevant consideration into account is, in effect, the obverse of the concept of a failure to take into account a relevant consideration: the former is prohibited while the latter is mandated. Like Griffiths J, I respectfully agree with the following statement of Basten JA in Ballantyne v WorkCover Authority of NSW [2007] NSWCA 239 at [113]:

In the language of judicial review, “relevant considerations” are mandatory considerations in the sense that any failure to take them into account, in circumstances where they are engaged, will be an error in point of law. A similar principle is reflected in the concept of “irrelevant considerations”. These are factors which are extraneous to the proper exercise of the power, so that to take them into account will also reveal legal error. These two categories do not, however, constitute an exclusive description of matters which may be considered. There will, in very many cases, be a category of legitimate factors, consideration of which is neither mandated or precluded.

192    In Sunshine Coast Broadcasters Pty Ltd v Australian Communications & Media Authority [2012] FCA 1205; (2012) 209 FCR 518, Kenny J adopted, at [104]-[105], the statement by Cavanough J in Love v State of Victoria [2009] VSC 215 at [191] of the principles with respect to the irrelevant considerations ground of judicial review:

To successfully impugn an administrative decision on the “irrelevant considerations” ground, a challenger must satisfy the Court of three things:

(a)    that the particular consideration was in fact taken into account;

(b)    that the consideration was irrelevant, in the sense that under the applicable statutory provisions the taking into account of the consideration was impermissible; and

(c)    that the applicable statutory provisions have the effect that taking the consideration into account will result in invalidity.

Reliance on anthropological material not obtained for the purposes of s 203BE(5)

193    The first irrelevant consideration said by the applicants to have been taken into account by the Delegate was her reliance on “anthropological material commissioned by the NLC in its capacity as the legal representative of the applicant in the various Federal Court proceedings and hearings … as if (erroneously) that … material had been obtained for the purposes of s 203BE(5)(a) and (b)”.

194    As can be seen, the subject matter of this complaint is the same as the subject of the sixth error of law and of the first relevant consideration said not to have been taken into account by the Delegate. The applicants’ reliance on this ground seemed to be yet another way of making the same complaint.

195    For the reasons given earlier, the applicants do not establish that it was impermissible for the Delegate to have regard to material which was not brought into existence or obtained for the purpose of s 203BE(5)(a) and (b). I note, again, the incongruity of this submission given that the Mak Mak Objectors had themselves provided the Registrar with material which had not been brought into existence specifically for the purposes of s 203BE(5).

The conditions of the grant of leave to discontinue in Batchelor No 3

196    The applicants submitted that the Delegate had taken into account an irrelevant consideration by having regard to the grant by Mansfield J of leave to discontinue the Batchelor No 3 claim and the conditions attached to that grant.

197    The Delegate did have regard to those matters but the applicants do not establish that it was impermissible for her to have done so. On the contrary, I consider that the discontinuance by the applicants of their claim in Batchelor No 3 was a material consideration. Those proceedings provided the vehicle for a curial determination of whether the Rak Mak Mak Marranunggu did have native title over the Town of Batchelor. They also provided the occasion for curial assessment of the evidence of the Marranunggu witnesses. It is evident that considerable resources had been expended in relation to those proceedings before their discontinuance. These were efforts of the kind to which s 203BE(5) refers.

198    The applicants in Batchelor No 3 chose, with the benefit of legal advice, to discontinue their claim to native title over the Town of Batchelor. In the context in which it occurred, this was, in effect, an abandonment of the claim. Not only did the applicants in Batchelor No 3 abandon the claim, they accepted, as a condition of the grant of leave to discontinue the proceeding, that they should be subject to a restriction in bringing any further proceedings, or in participating in the proceedings of others, concerning native title over the Town of Batchelor. Further still, they accepted that in order for the restriction to be removed, they would be expected to provide cogent supporting anthropological evidence of the claims of the Rak Mak Mak Marranunggu to native title in relation to the Town of Batchelor.

199    In my opinion, these were matters capable of bearing upon the Delegate’s assessment of whether all reasonable efforts had been made to identify the persons or hold or may hold native title in relation to the Town of Batchelor. As previously noted, the question was whether all reasonable efforts had been made, and not all efforts. There were limits as to what had to be done to satisfy the requirement of “all reasonable efforts”. It would have been unrealistic to regard the efforts made by the parties participating in Batchelor No 3, including the NLC, as being irrelevant to this question. Further, the terms on which the Batchelor No 3 applicants discontinued meant that it was open to the Delegate to conclude that little further by way of efforts was required in respect of claims. This was so because those applicants had chosen voluntarily, and despite having to accept disabling conditions, not to pursue the application in the forum which could have determined the merit of their claim. As indicated, it can also be inferred that the Batchelor No 3 applicants had not, to October 2011, provided cogent anthropological evidence supporting their claims.

200    These grounds of the application fail.

No evidence justifying the decision

201    The next basis on which the applicants sought judicial review was that there was no other evidence or other material to justify the Delegate’s decision (ADJR Act s 5(1)(h)).

202    Section 5(1)(h) is elaborated in s 5(3)(a) and (b), set out earlier in these reasons. The applicants’ submissions did not address these matters at all, let alone point to matters which could establish either. It is, in any event, not clear that s 5(3)(a) could have any application in the circumstances of this case, given the onus of proof resting on the Mak Mak Objectors. In relation to s 5(3)(b), the applicants did not attempt to identify a fact on which the Delegate’s decision rested which did not in the circumstances of this case exist.

No reasonable person could have exercised the power in the same way

203    The final ground upon which the applicants relied was the assertion that the exercise of power by the Delegate was so unreasonable that no reasonable person could have exercised it in the same way.

204    The only submission which the applicants directed to this ground did not rise above bare assertion, namely, that it “is an inescapable conclusion that the conclusion of the Registrar is entirely unreasonable and not based on the material [that was] in front of her”.

205    This submission cannot be sustained. The Delegate provided detailed reasons which indicate that she paid close attention to the material and to the submissions made by all the parties. There was considerable material before the Delegate bearing upon the issue of whether all reasonable efforts had been made to identify those who may hold native title over the Town of Batchelor. Further, the Acting Chief Executive Officer of the NLC stated in the certificate provided in support of the application for registration of the ILUA on 16 April 2015, that the representation of the native title parties and the substantial anthropological, archival, historical, archaeological and field research undertaken by the NLC had included “detailed consideration of the system of traditional laws and customs which operates in the Batchelor region, including the composition of the traditional land-owning groups, and the identification of the traditional decision-making processes”. The statutory declaration of Mr Morrison, the NLC’s CEO, provided evidence that the NLC had formed the opinions underpinning its certification of the Batchelor ILUA on the basis of the large amount of material identified earlier in these reasons. It was for the Delegate to evaluate the material and to attach such weight to it as she thought appropriate. Her conclusion cannot reasonably be characterised as so unreasonable that no reasonable person in her position could have reached it. This ground fails.

Invalidity of the objections of the Mak Mak Objectors

206    One of the NLC’s submissions was that the Mak Mak Objectors are not even persons “claiming to hold native title” so as to be entitled to object pursuant to s 24CI(1). It submitted that a person comes within that statutory description only if a “claimant application” as defined in s 253 of the NT Act has been made. As noted, such an application is a native title determination application which a native title claim group has authorised to be made.

207    I do not accept that submission and this contention fails. First, the Delegate made an express finding that the objections of the Mak Mak Objectors were valid, at [40]. The NLC has not sought review of that decision.

208    Secondly, on the construction of the term “person claiming to hold native title” which I consider appropriate, each of the Mak Mak Objectors was such a person, as they asserted that they held native title over Batchelor. It was not suggested that some form of the “colourable test” should be applied to their assertion.

Conclusion

209    For the reasons given above, the application under s 5 of the ADJR Act is dismissed.

Associate:

Dated:    24 May 2018

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